The presiding judge and judge:
Guo Hao Law Group (Tianjin) Office accepted the entrustment of the defendant Liu X to hire a lawyer through his relatives, and appointed us as the first-instance defender in the case of the defendant Liu X's alleged fraud. After accepting the case, the defender has done the necessary work according to law, and now puts forward the following defense opinions on the relevant issues of this case for the reference of the collegial panel of our hospital.
1. The indictment found that the defendant Liu X borrowed 80,000 yuan from Zhang XX, which was a civil legal relationship and did not constitute fraud according to law.
The defender noted that the indictment found that the defendant Liu XX defrauded Zhang XX of 80,000 yuan. However, for this 80,000 yuan, the defender believes that this behavior belongs to a typical civil dispute and does not belong to the scope of criminal law adjustment.
First of all, when the defendant Liu XX borrowed money from Zhang XX, he did not fabricate any facts.
In his statement, Zhang XX claimed that the defendant Liu X borrowed money from him, claiming that he needed money to solve the follow-up issues because of the traffic accident. The defender noticed that the defendant Liu X was indeed sentenced to punishment by Hexi District People's X Hospital for the crime of traffic accidents, and paid the victim several times.
The premise of the crime of fraud stipulated in China's criminal law is fiction, but in this case, the defendant Liu XX said realistically that he borrowed money from Zhang XX because of the previous traffic accident, so it did not meet the criminal constitution of the crime of fraud stipulated in China's criminal law.
Secondly, when the defendant Liu XX borrowed money from Zhang XX, he did not conceal any truth.
In the case file, Zhang XX has repeatedly stated that when he lent money to the defendant Liu X, he had read the driving license of the vehicle and knew that the vehicle was not owned by the defendant Liu X. In addition, the defender noticed that although the defendant Liu X stated in the debit note to Zhang XX that the vehicle had been mortgaged to Zhang XX, this behavior was caused by the improper understanding of legal terms by the parties concerned, and it was recognized as a pledge by the effective judgment of People's X Hospital in Hexi District, Tianjin. Therefore, the defender believes that the defendant Liu XX did not conceal the truth when he borrowed money from Zhang XX. This behavior does not conform to the constitution of fraud in China's criminal law.
Finally, the defendant Liu X did not borrow money from Zhang XX for the purpose of illegal possession.
The key to determining whether an act constitutes a crime of fraud lies in whether it aims at illegal possession. In this case, the defendant Liu X borrowed money from Zhang XX and made an out-of-court settlement at People's X Hospital in Hexi District. Finally, the two sides agreed that the defendant Liu X would pay off the debt as soon as possible. At this point, the defendant Liu X has repaid 25,000 yuan, and the rest are being repaid. The characterization in the indictment confuses the civil legal relationship and the criminal legal relationship, so the defendant Liu X cannot be found guilty of fraud.
2. The indictment found that the defendant Liu× defrauded Jiao× 72,000 yuan, with unclear facts and insufficient evidence.
First of all, the indictment found that the defendant Liu× defrauded Jiao× 72,000 yuan, and there were many unclear facts. Although Jiao X stated that he lent the defendant Liu X 72,000 yuan, he did not directly state the specific details of the loan of 72,000 yuan. According to the defendant Liu X's confession, he borrowed 30,000 yuan from Jiao X, pledged the rented zhonghua car to Jiao X, and repaid 40,000 yuan to Jiao X. After that, Jiao X blackmailed him for repayment of 72,000 yuan and forced him to write an IOU. There are obvious contradictions between the above two facts, but the case file materials do not truly reflect the authenticity of Jiao X and Liu X. In the testimony of two colleagues of Jiao X, it is only confirmed that Jiao X borrowed 4 yuan, but did not see that Jiao X directly lent 72,000 yuan to the defendant Liu X. Therefore, the defender believes that there are many unclear facts about the loan of 72,000 yuan in this case.
Secondly, only one IOU in the indictment is not enough to determine that the defendant Liu X defrauded Jiao X72,000 yuan.
In this case, the public prosecution agency only found that the defendant Liu X defrauded Jiao X 72,000 yuan with IOUs. Defenders believe that the determination that someone constitutes fraud must conform to the criminal constitution of fraud in China's criminal law. Defendant Liu X once reported to Nanyingmen X for being blackmailed by Jiao X for 72,000 yuan, but in the end there was no result. The defender believes that the relevant evidence in this case is not enough to prove that the defendant Liu X committed the crime of fabricating facts and concealing the truth for the purpose of illegal possession. Therefore, the defender believes that the fact that the indictment finds that the defendant Liu X defrauded Jiao X 72,000 yuan is unclear and the evidence is insufficient.
3. The indictment found that the defendant Liu X defrauded Tianjin XX Freight Forwarding Co., Ltd. 1.75 million yuan, with unclear facts and insufficient evidence.
First of all, the defendant Liu XX did not conceal the fact of collecting the arrears from Tianjin XX Freight Forwarding Co., Ltd., but was entrusted by Liu XX, the leader of his company.
In this case, the defendant Liu XX was appointed by the company leader Liu XX to go to Tianjin XX Freight Forwarding Co., Ltd. with the company accountant Chen XX to collect the arrears. From the statement of Bai X, the general manager of Tianjin XX Freight Forwarding Co., Ltd., it can be seen that Bai X, the leader of Tianjin XX Freight Forwarding Co., Ltd., did not trust the defendant Liu X and accountant Chen X when he went to Tianjin XX Freight Forwarding Co., Ltd. to ask for the arrears. Therefore, the defendant Liu X used his mobile phone to call Liu XX and used the hands-free function. Everyone present heard the defendant Liu X asking whether Liu XX entrusted him with full authority to collect the arrears on the phone, and got a positive reply from Liu XX. In addition, Bai X, the general manager of Tianjin XX Freight Forwarding Co., Ltd., personally called Liu XX at that time to confirm that the defendant Liu X had collected the arrears, and he also got a positive reply from Liu XX.
In the report materials of Bai X, the general manager of Tianjin XX Freight Forwarding Co., Ltd., he also claimed that he was defrauded by Liu XX's company, not by Liu X, because he was owed money by Liu XX. In this case, the defendant Liu X wrote a receipt every time he withdrew money from Tianjin XX Freight Forwarding Co., Ltd., instead of illegally occupying the huge sum by deception. His demand for arrears was authorized by the company leaders, and this authorization was confirmed by the leaders of the second company through the hands-free function on the phone. Therefore, the defendant Liu X did not fabricate facts or conceal the truth, and did not obtain the money for the purpose of illegal possession. Therefore, the defender believes that the behavior of the defendant Liu X in this case is an effective civil agency behavior and does not constitute a crime according to law. The indictment found the defendant Liu X guilty of fraud, with unclear facts and insufficient evidence.
4. The indictment found that the defendant Liu X defrauded Qi Xx30,000 yuan, and the facts were unclear and the evidence was insufficient.
Defender has no objection to defendant Liu X's fraud of Qi XX, but does not recognize the amount of fraud of defendant Liu X. ..
It was found in the indictment that the defendant Liu X defrauded Qi Xx30,000 yuan for three times from June 10 to June 12, 2008 on the grounds that his friend's mother was ill and operated. Defender noticed that it can be seen from Qi XX's statement in the case file that the defendant Liu X did not conceal the fact of the fake account book when he borrowed 1000 yuan from Qi XX for the first time, but only concealed the fact of the fake account book when he borrowed the last 20,000 yuan from Qi XX, and took the fake account book as a guarantee.
Therefore, the defender believes that the object of the defendant Liu Xx's fraud crime should not include his borrowing of 6,543,800 yuan from Qi Xx. Because he didn't make up the facts or conceal the truth when borrowing 1000 yuan, and offered to repay the money after borrowing, the amount of factual fraud against the defendant Liu X should be recognized as 20,000 yuan.
5. Defendant Liu X has the plot of surrender, and can be given a lighter or mitigated punishment according to law.
Article 67 of the Criminal Law clearly stipulates: "Whoever voluntarily surrenders himself after committing a crime and truthfully confesses his crime is self-surrender. For criminals who surrender, they can be given a lighter or mitigated punishment. " In addition, Article 1 of the Interpretation on Several Issues Concerning the Specific Application of Law in Handling Cases of Surrender and Meritorious Service clearly stipulates: "It was not out of the initiative of the criminal suspect, but was persuaded by relatives and friends to accompany him to surrender; If the public security organ informs the relatives and friends of the criminal suspect, or after the relatives and friends take the initiative to report the case, it should also be considered as automatic surrender. "
In this case, after the defendant Liu X was listed as an online fugitive, his father Liu XX contacted the defendant Liu X many times and personally took the defendant Liu X to Paix to surrender himself. After the defendant Liu X surrendered himself, he truthfully confessed his criminal behavior. This behavior is reflected in the prosecution opinions and explanations issued by the investigation organ. Therefore, the defender believes that the defendant Liu X, accompanied by his relatives, voluntarily surrendered to the public security organs and truthfully confessed his criminal behavior, which should be considered as surrender according to law and can be given a lighter or mitigated punishment.