Lead: The crime of illegally absorbing public deposits, whether it is the bottom salesman, the middle-level leader or the person in charge, the determination of the crime amount is very important for the sentencing of the case. How to question the amount of crime from the evidence rules, so as to reduce the defendant's sentence? Before, our team handled a case in which a salesman was involved in illegally absorbing public deposits. The public prosecutor accused the defendant Jia Moumou of illegally absorbing public deposits of more than 3.2 million yuan. After our team's defense, the recognition of 6.5438+0 million yuan was finally reduced successfully, and the sentencing was appropriately reduced. From the perspective of determining the amount of crime, the defense is undoubtedly successful. Below we will announce the identification of the defense words and judgments of the first instance as follows:
Jia Moumou is suspected of illegally absorbing public deposits.
Defense words of first instance
Dear presiding judge and people's assessor,
Beijing Yingke (Taiyuan) Law Firm accepted the entrustment of Jia Moumou's family according to law and appointed me as the defender of the defendant Jia Moumou in the first instance. After investigation by the court, combined with the evidence in this case, the defender put forward the following defense opinions:
1. There is insufficient evidence that the public prosecution agency accused the defendant Jia Moumou of illegally absorbing public deposits involving a contract amount of more than 32 1000 yuan.
First of all, according to the evidence provided by the public prosecution agency, the case involved 22 victims. 1 1 The victims (Gao Moufang, Ren Mouhua, Guo Moulian, Guo Motang, Yang Momin, Hu Mouping, Li Mouyan, Lu Moujia, He Mouyu, Chen Mou Chao, Niu Momei) did not identify Jia Moumou. this
In addition, according to the defendant Jia Moumou's confession before and during the trial, the time when he joined XXX Company was 2065438+July and August, 2004, which was inconsistent with the investment time stated by some of the above victims (including Lu Moujia, Niu Momei, Guo Motang, Yang Momin and Li) before Jia Moumou joined XXX Company, and according to Jia Moumou's confession in court, the locations where all salesmen issued business cards were contradictory.
As we all know, in criminal proceedings, the strengthened confirmation rule is adopted for witness testimony and victim statement. "Solitary evidence cannot be finalized" is a basic principle of criminal evidence appraisal. In this case, the evidence that Jia Moumou invested in Qi XX Company stated by the above 1 1 victim belongs to isolated evidence, and there is no other evidence to confirm it, and there are unexplained contradictions between some testimonies and the confession of the defendant Jia Moumou. Therefore, the above-mentioned 1 1 victim's investment in XX Company (contract amount of 920,000 yuan) cannot be regarded as the amount illegally absorbed by Jia Moumou.
Secondly, among the remaining 1 1 victims' investments, the investments of Lei Mouning and Zhang Moping cannot be the amount of deposits illegally absorbed by Jia Moumou.
1. About Lei Mouning's investment. The evidence provided by the public prosecution agency shows that Lei Mouning, as a victim, did not report the case to the public security organ or make relevant statements. Instead, he reported the case through his girl Lei Mohong and made relevant transcripts. Lei Mohong made it clear in the inquiry transcript that he only knew Jia Moumou and knew nothing else. The evidence was indirectly transmitted by Lei Mohong, and cannot be used as the basis for determining the facts of the case alone.
On the other hand, according to Article 238 of the Criminal Procedure Rules of the People's Procuratorate of the Supreme People's Procuratorate, before the appraisal, the specific characteristics of the appraised object should be inquired in detail from the appraiser. In this case, Lei Mohong obviously didn't know Jia Moumou, and the public security organ didn't ask Lei Mohong in detail whether he had seen Jia Moumou and Jia Moumou, what he looked like, how tall he was, and how fat he was. Therefore, although Lei Mohong identified Jia Moumou, because the identification violated the regulations, its authenticity could not be determined. According to item (6) of Paragraph 2 of Article 90 of the Supreme People's Court's Interpretation on the Application of the Criminal Procedure Law of People's Republic of China (PRC),
Since Lei Mohong's identification record can't be used as the basis for deciding the case, the only evidence that Lei Mouning invested in XXX through Jia Moumou is Lei Mohong's testimony, which itself is indirect evidence and transmission evidence, and can't be used as the basis for determining the facts of the case alone. Therefore, Lei Mouning's investment in XXX (the contract amount is 89.110,000) cannot be regarded as the amount that Jia has illegally absorbed public deposits.
2. About Zhang Moping's investment. According to Zhang Moping's statement, he invested in XXX in April and May of 2065438+2004, and Jia Moumou didn't work in XXX at this time, so this statement contradicts Jia Moumou's statement, and Zhang Moping's investment amount (contract amount 140000) can't be recognized as the amount of public deposits illegally absorbed by Jia Moumou.
Finally, according to the confession of the defendant Jia Moumou, the confession of other accomplices and the statements of some victims, the victim did deduct 7%-8% interest when investing in Qi XX, that is, the contract amount was not the actual investment amount. According to the third paragraph of Article 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Fund-raising, the amount of illegally absorbed public deposits shall be calculated in full with the funds absorbed by the actor. Therefore, in line with the principle that doubt is beneficial to the defendant, when determining the specific amount involved, it should be determined by deducting 8% from the contract amount.
The contract amount involved in this case is 3201.85 million yuan, after deducting 1 1 unknown amount of 920,000 yuan, after deducting Lei Mouning's 89 1 1.000 yuan, after deducting Zhang Moping 1.2674 million yuan, the rest is.
Second, the defendant Jia Moumou earned 4 million yuan in the illegal fund-raising case of XXX company, which was of low status and played a small role. According to the law, he should be recognized as an accessory and his punishment should be mitigated.
Defendant Jia Moumou is only one of more than 300 salesmen of XXX company, and the amount absorbed is only the tip of the iceberg, which plays a secondary, auxiliary and helpful role in the same crime. And the defendant Jia Moumou was led by business manager Zheng Moguang in XXX company. Zheng Moguang's superiors also have Liu Mouqi and other bosses, and Jia Moumou is just a small salesman with low status. Therefore, according to the provisions of Article 27 of the Criminal Law, the defendant Jia Moumou is an accessory and should be given a mitigated punishment.
Third, the defendant Jia Moumou has a frank plot, voluntarily pleaded guilty in court, and has a good attitude of repentance. He is willing to actively return illegal income and has no criminal record. It is a first-time offender and an occasional offender, and can be given a lighter punishment according to law.
To sum up, the defendant Jia Moumou was suspected of illegally absorbing public deposits amounting to1160,000 yuan, and was an accessory to the same crime in the whole XXX company. And voluntarily pleaded guilty and repented in court, and the circumstances were minor. It is suggested that the court consider the above situation, reduce the punishment of the defendant Jia Moumou according to law, and apply probation.
I urge the collegial panel to attach importance to and adopt the above defense opinions when finalizing the case.
Defender: lawyer of Beijing Yingke (Taiyuan) Law Firm.
Cars? run for it
2018101October 23rd
Attachment: Excerpt from the judgment of the court of first instance.
XX District People's Court of Taiyuan City, Shanxi Province
criminal judgement
(20XX)XX Chu ZiNo. XX's Disposition of Gold XX
Public prosecution organ of XX District People's Procuratorate of Taiyuan City.
Defendant Jia Moumou, male, 19XX was born in XX City, Shanxi Province, Han nationality, college degree, unemployed, and lives in Unit X, Building X, XXX Community, XX District, XX City, Shanxi Province. 2018 65438+/kloc-0 was criminally detained by XX Branch of Taiyuan Public Security Bureau on October 20th on suspicion of illegally absorbing public deposits. On February 25th of the same year, with the approval of the People's Procuratorate of XX District of Taiyuan City, he was arrested by XX Branch of Taiyuan Public Security Bureau the next day. Now detained in Taiyuan No.2 Detention Center.
Defender Che Ben, lawyer of Beijing Yingke (Taiyuan) Law Firm.
……
The court held that the defendant Jia Moumou illegally absorbed public deposits, disrupting the financial order, and the amount was huge, which constituted the crime of illegally absorbing public deposits. The prosecutor charged him with guilt. According to the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Fund-raising, "the amount of illegal or disguised absorption of public deposits shall be calculated in full with the funds absorbed by the actor." Therefore, according to the statements, report materials, contents contained in the contract and the income and expenditure of funds of the fund-raising participants, the amount of crime in this case should be determined by the actual investment of the fund-raising participants. At the same time, the court held that most fund-raising participants in this case called their salesmen "Jia X" in the report materials and inquiry transcripts. If the fund-raising participants cannot identify the defendant Jia Moumou, the evidence proving the number of fund-raising participants and the amount of crime in this case is only the investment agreement and the statement of fund-raising participants. Since the investment agreement does not reflect who the salesman is, the only evidence that can prove that the salesman is the defendant Jia Moumou is the Statement of Fund-raising Participants, which cannot form a chain of evidence. It is reasonable to suspect that some fund-raising participants' salesmen are not the defendant Jia Moumou in this case. To sum up, our hospital recognizes the amount of investment involved in fund-raising participants who have reported the case and can identify the defendant Jia Moumou or tell the identity and contact number of the defendant Jia Moumou. Fund-raising participants have reported the case but failed to identify or identify the defendant Jia Moumou. Although they can prove that they really invested in Shanxi XXX Industry and Trade Company through the investment agreement and the statements of fund-raising participants, they cannot prove that their salesmen are the defendant Jia Moumou, so the amount of investment involved should be reduced. The accusation that the public prosecution agency exceeds the actual investment and the evidence is insufficient will not be recognized. After the defendant Jia Moumou arrived at the case, he was able to truthfully confess the basic criminal facts, which was a confession and could be given a lighter punishment according to law; He only plays a certain role of help and assistance in the crime of * * *, and is an accessory, and his punishment should be mitigated according to law; Those who voluntarily return stolen goods may be given a lighter punishment. The defense opinions of defenders should be adopted reasonably.