Brief introduction of the case
The People's Procuratorate of a certain district of a city accused the defendants Tong Moumou, Shi Moumou and Zheng Moumou of committing corruption. The public prosecution agency believes that the defendants Tong Moumou and Shi Moumou, while serving as Party Secretary and Director of Xiaoshan Town West Development Office respectively, took advantage of their positions in charge and in charge of Xiaoshan Town West Development Office, and cooperated with the defendant Zheng Moumou to conceal facts, falsely report and take the initiative, and illegally occupy public funds. They should be investigated for criminal responsibility for corruption. A district people's court first sentenced Tong Moumou to corruption and sentenced him to 10 years in prison; Shi Moumou was convicted of corruption and sentenced to 10 years in prison; Zheng was convicted of corruption and sentenced to seven years in prison.
The three defendants refused to accept the appeal, and the Intermediate People's Court of a city in the second instance held that "the facts of the original judgment that the three defendants misappropriated public funds were unclear and the evidence was insufficient. At the same time, there are still cases of illegal proceedings in the first instance, and the judgment of the first instance is revoked according to law and sent back for retrial.
The people's court of a certain district found that "some corruption facts accused by the public prosecution agency are basically clear and confirmed by evidence", and it is still determined by the judgment of first instance.
In the retrial and second trial stage of this case, Nigo and Lv Jun successively served as the defenders of Tong Moumou together with lawyer Wu Zhengnan, and defended Tong Moumou according to law.
During this period, Nigo went to Beijing to invite, Liang Huaren, Wu, Zhang and other famous China criminologists to demonstrate the case. Experts agree that the three defendants, Tong Moumou, do not constitute the crime of corruption. Lv Jun and Wu Zhengnan seriously pointed out in court that "there is no corruption, but evidence was obtained by torture".
On September 2 1 2006, the Intermediate People's Court of a certain city held that "the defense and defense opinions put forward by our court that did not constitute the crime of corruption were adopted, which was consistent with the facts ascertained by our court".
Focus of controversy
Whether Tong Moumou and other three people constitute the crime of corruption.
The prosecution believes that the actions of the defendants Tong Moumou, Shi Moumou and Zheng Moumou have constituted the crime of corruption.
The defense believes that Tong Moumou and other three people do not constitute corruption. The following are the main points of defense:
(A) there can be no substantive justice without procedural justice.
This case is a typical case of extorting a confession by torture, and the procedure is seriously illegal.
1. The law prohibits extorting confessions by torture.
Since mankind entered a civilized society, the act of extorting confessions by torture has been explicitly prohibited by law. China's laws and regulations explicitly prohibit extorting confessions by torture, and concluded the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which elevated extorting confessions by torture to "torture" and explicitly prohibited it.
2. The act of extorting confessions by torture in this case is irrefutable evidence.
Whether there is a confession by torture in this case is irrefutable.
This case has the fact that the arraignment registration proves that the arraignment has been carried out for three days and nights; The confessions of the three defendants without collusion confirmed the facts of extorting confessions by torture, such as not sleeping for three days and three nights, restricting eating and drinking, handcuffing interrogation, and "wheel war" fatigue trial.
So, whether these acts constitute the nature of extorting a confession by torture is clear as long as it is compared with the law:
Three days and three nights without sleep should be considered "torture" What is torture? Article 1 paragraph 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment stipulates: "Torture refers to any act that intentionally causes a person to suffer serious physical or mental pain or torture in order to obtain information or confession from a person or a third party, to punish his or her actions, or to intimidate or threaten him or a third party, or for any kind of discriminatory reasons. Article 4 of the Convention also stipulates: "Each State Party shall ensure that all acts of torture are classified as illegal acts" and "punished appropriately". Pavlov, a world-famous Russian biologist, once experimented with two dogs: one dog was locked up without food, but let it sleep well; Dogs are locked up to feed them, not to sleep. On the seventh day of the experiment, the dog that didn't eat was still alive, and the dog that didn't sleep was dead. It can be seen that the damage to people and animals by not sleeping is very serious and dangerous. Therefore, the behavior of staying awake for three days and nights is torture compared with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (ratified by China on June 4th, 2000 1 1). At the same time, the above behavior is a disguised corporal punishment that violates the relevant laws of our country!
What are corporal punishment and disguised corporal punishment? The so-called corporal punishment refers to violent acts on the victim's body, such as hanging, tying, beating and other methods of torturing people's bodies. The so-called corporal punishment in disguised form refers to the use of non-violent destruction and torture on the victims, such as freezing to death, starving to death, roasting to death, sunburning to death and so on.
In the way of torture, there are corporal punishment and disguised corporal punishment, ranging from political punishment to criminal responsibility.
During these three days and nights, the defendant was not only severely devastated by this "no sleep", but also by the following behaviors: First, on the way to the special intelligence room, he put a black hood on his head and left only two nostrils to inhale (note: this shocked me. How could Taiping World, Langlang Gankun and Tangtang Procuratorate learn the way of "underworld" to detain people? ! ), let the defendant fear, this is the physical and mental destruction of the defendant! Second, limit diet, and only feed water three or four times for three days and three nights; I have only eaten small instant noodles five or six times, which is also a physical and mental destruction to the defendant! Third, the defendant was tried in handcuffs for three days and nights. In addition to urinating, the rest of the time was handcuffed, which was also a physical and mental destruction for the defendant! Fourth, three days and three nights, two groups of four people were interrogated continuously, and the wheel war and fatigue war were also the physical and mental destruction of the defendant!
The above-mentioned behaviors, acting on people comprehensively, are destructive and destructive to people's physical health and mental health!
These acts are prohibited by law. Article 43 of the Criminal Procedure Law stipulates: "... it is forbidden to extort confessions by torture ..." Article 6 1 of the Interpretation of the Criminal Procedure Law stipulates: "It is forbidden to collect evidence by illegal means. Witnesses' testimony, victim's statements and defendant's statements obtained by extorting a confession by torture or by threatening, luring or cheating, etc., cannot be used as the basis for finalizing the case. "Therefore, it is obviously wrong for a district court to convict the defendant on the basis of the so-called' evidence' illegally obtained by torture in the original trial and retrial.
3. The prosecution has admitted the fact of "corporal punishment in disguised form" on two points: First, the prosecution admitted the fact of "continuous interrogation for three days and three nights", which was disproved by the defense lawyer's argument about the long interrogation and why he was handcuffed in the previous interrogation. The prosecution argued: "There is no legal provision for the trial time after criminal detention." (See the transcript of the trial) This defense of the prosecution just disproves the fact that the prosecution also admitted that the defendant stayed up for three days and nights, interrogated continuously and fought fatigue.
Second, the prosecution admitted the fact of "handcuffed interrogation". The prosecution argued: "The defendant was handcuffed for safety." The fallacy of this defense lies in that the defendant showed no signs of resistance and self-injury and was not suspected of violent crime. Why use handcuffs? ! At the same time, it also disproves the fact that the prosecution admitted to being handcuffed for three days and three nights!
4. Refusing to hand in the whole synchronous video, once again disproving the objective existence of the fact of extorting a confession by torture.
In the case that the defendants all raised the issue of extorting a confession by torture, and the defense lawyers also applied to the court for all the videos, if the prosecution did not extort a confession by torture, why not show it to prove that there was no confession by torture? ! This refusal can only infer the objective existence of extorting a confession by torture. Therefore, prosecution can only bear the adverse consequences that cannot be proved by law!
In fact, the reason why the prosecution refused to submit it is untenable. Because, the purpose of setting up the synchronous video of the whole interrogation is to prevent the interrogated person from retracting his confession and supervise the interrogators. Therefore, according to the fact that all three defendants in this case retracted their confessions, and all three defendants claimed that the prosecutors extorted confessions by torture, whether from the point of view of proving that the defendants' retraction was unreasonable or from the point of view that the prosecutors should be supervised (note: everyone is equal before the law, and there are no special citizens who are not subject to legal supervision), the prosecution can only hand over the whole synchronized video to the court for cross-examination (cross-examination: whether it was made synchronously, whether there was time to skip, whether there was content deletion, and whether the behavior and expression of the interrogated person were normal).
If the prosecution refuses to hand it over again, the court of second instance for retrial shall accept the confessions of the three defendants by torture, exclude the evidence of so-called confessions by torture, and submit it to the discipline inspection department for review!
(2) unfounded conviction, presumption of guilt, false accusation and wrong judgment.
The principle of "based on facts" is, in the final analysis, to require "emphasizing evidence and emphasizing evidence" in handling cases. So, what is the evidence in this case? 1. Look at the evidence in this case from the "means of obtaining evidence": there is not enough evidence to convict the defendant in this case, that is, there is no evidence to convict the defendant in this case!
Why do you say "no evidence of conviction"? Please look at the facts of this case:
First, in this case, apart from the "guilty" confessions obtained by three defendants through torture, there is no other evidence to prove that three defendants, including Tong Moumou, are guilty! This is an objective fact that no one can deny.
Secondly, judging from the above-mentioned first fact, the only evidence that the defendant was accused and convicted in this case was the so-called "guilty" confession made by three defendants including Tong Moumou under torture (note: it was a "selective" and "guilty" confession after illegally concealing the "innocent" confession of three defendants including Tong Moumou). According to the law, evidence obtained by illegal means is illegal and should be excluded. Therefore, the so-called "guilty" evidence on which three defendants, including Tong Moumou, were convicted in this case was obtained by illegal means and should be excluded according to law, so it is said that this case is "zero conviction evidence"!
2. Look at the evidence in this case from the "true and sufficient" evidence standard: the so-called "guilty" confession and related evidence illegally obtained by the prosecution do not have the "true and sufficient" evidence proof standard.
The first paragraph of Article 162 of the Criminal Procedure Law stipulates: "If the facts of the case are clear, the evidence is true and sufficient, and the defendant is found guilty according to law, a guilty verdict shall be made." According to this provision, the standard of proof in criminal proceedings in China is "the evidence is indeed sufficient". "True sufficiency" requires the construction of evidence system from both quality and quantity, which is the combination and unity of quality and quantity. From the perspective of "quality", it is required that the evidence must be "true", and the truth of evidence means that the evidence has objective authenticity; From the perspective of "quantity", it is required that the evidence must be "sufficient". Sufficient evidence means enough to prove the facts to be proved. "Really sufficient" evidence refers to the objective fact that proves that the result is exclusive and completely true. "Full proof" shows that the evidence system has the following characteristics: mutual confirmation, that is, evidence should confirm, support and explain each other; No contradiction, that is, there should be no unexplained contradiction between evidence, evidence and facts, and evidence and reasons; The closure of evidence, that is, between evidence, between evidence and facts, and between factual elements, ensures that all links are fully proved; Prove the uniqueness of the conclusion, that is, the conclusion should be unique in the comprehensive determination of facts, and reasonably exclude other possibilities.
According to the four requirements of the proof standard of "sufficient facts" and "sufficient proof" in the evidence system, the evidence in this case obviously does not meet the four requirements:
First of all, according to the "mutual confirmation" requirement of the evidence system:
The so-called evidence used to "convict" in this case does not meet this requirement at all.
In the so-called "conspiracy" in this case, in the so-called "guilty" confessions of the three defendants, there have been confessions of "different time", "different place", different amount of money obtained and different cause and effect. A true and effective evidence must meet the requirements of "five whats", that is, when, where, who, what, what cause and effect, and there have been ".
Second, according to the "non-contradiction" requirement of the evidence system:
The so-called "stolen goods" in this case, that is, the so-called "guilty" evidence obtained by the three defendants under torture, have three versions:
Tong Moumou "confessed": he got 60,000 yuan, Shi Moumou got 65,438+10,000 yuan, and Zheng Moumou got 1 10,000 yuan; Shi Moumou "confessed": He got 80,000 yuan, Tong Moumou got 60,000 yuan and Zheng Moumou got 30,000 yuan.
Zheng Moumou "confessed": he got 2,000 yuan, and the balance 1.6 million yuan was given to Shi Moumou.
The so-called "confession" in which three statements are completely contradictory is obviously fabricated under unbearable torture, which obviously does not meet the requirements of "non-contradiction" and the proof standard of evidence, and cannot be used as evidence that the three defendants embezzled 1.7 million yuan!
Here, we can't help but have such a big question that corruption is based on illegal possession of public property. If the three defendants really want the crime of corruption, why can't they even reach an agreement on the two core issues of "starting point" and "end point"? How can there be something that is not mentioned in the "conspiracy"? If you really get the money, how can there be a saying that three people are completely different and there is a big gap? If it is true, even a three-year-old child will not eat a few sweets by mistake!
Third, according to the "closed" requirements of the evidence system:
Because the evidence in this case is contradictory, it is impossible to confirm and connect with each other, and it is impossible to form a complete chain of evidence. Therefore, it does not meet the requirements of "closed" evidence system.
Fourthly, according to the "uniqueness" requirement of the evidence system:
Because the evidence in this case is lack of evidence, contradictory and not closed as mentioned above, it is impossible to draw a unique conclusion, so it does not meet the uniqueness requirements of the evidence system.
It is precisely because there are objective facts in this case that cannot be used as the basis for finalizing the case, so the two-level court tried it three times and found that there are the following facts and evidence in this case:
The court of the original trial area found this case: the facts are basically clear and there is evidence to prove it.
The Intermediate People's Court of a city in the original second instance found this case: the facts were unclear and the evidence was insufficient.
The so-and-so local court, which retried the first instance, avoided talking about this and made no conclusion.
The above different situations clearly tell people:
The conclusion of "the facts are basically clear and there is evidence to prove it" in the original trial only proves that the court of the original trial did not dare to draw a conclusion with clear facts, so it added the word "basic" and dared not draw a conclusion with sufficient evidence, so it had to be written as "there is evidence to prove it", which completely did not meet the statutory requirements for conviction stipulated in Article 162 of the Criminal Procedure Law.
According to the facts of this case and the legal requirements stipulated in Article 162 of the Criminal Procedure Law, the court of first instance and second instance objectively and fairly determined that the facts were unclear and the evidence was insufficient!
After the retrial court of first instance revoked the original judgment in an intermediate people's court and sent it back for retrial, it should be more aware that there are serious problems in the facts and evidence of this case, and rarely avoid talking about it and make no conclusions! It is a very irresponsible performance of law enforcement!
(3) Tong's behavior does not meet the constitutive requirements of the crime of corruption.
1. does not meet the objective requirements of this crime.
Objectively, this crime is manifested as the act of taking advantage of his position to occupy, steal, defraud or illegally occupy public property by other means.
The charges in this case and the two first-instance judgments all found that in August 2003, the defendants Tong Moumou, Shi Moumou and Zheng Moumou conspired (or * * * conspired) to illegally occupy public funds of 1.7 million yuan by means of concealing facts, making false reports and taking the initiative, which constituted the crime of corruption. The objective aspects of the defendant's conviction are "concealing facts, lying about the situation, taking the initiative" and illegal possession, which also have the characteristics of "deception". In fact, according to all the evidence in this case, it is impossible to prove that the defendant's behavior conforms to the above characteristics.
First, look at the evidence in this case, not only can't prove "concealing the facts", but can only prove that the actions of the three defendants are public:
(1) The discussion is normal and open.
First, from the identity point of view, it is normal and open: Tong Moumou who attended the meeting was the deputy secretary of the Party Committee of Xiaoshun Town at that time, Shi Moumou was the main leader in charge of Zhenxi Development Zone, and Zheng Moumou was the director of the village Committee who participated in the demolition. It is also the demolition influencer. The discussion between these three people is normal and open.
Second, judging from the content of the discussion, it is all related to demolition, which is normal and open.
Third, from the position, in the office, and the door is open, the tea delivery comrades can go in and out at any time, and the tea delivery comrades also said that they heard a few words, which proved to be normal and open!
Therefore, the evidence in this case cannot prove illegal "conspiracy" (or * * * conspiracy).
(2) Lists and attached lists are normal and open "expansion" behaviors.
1. The "list" of Zheng Moumou 170935 yuan has been listed as a single item (1 1). A. The first floor workshop (east) is 600m2×200 yuan, which is 120000 yuan; B workshop foundation (west) 600m2×60 yuan, totaling 36,000 yuan; C fence 166m×90 yuan, totaling 14935 yuan. The label is so detailed that you can't confuse special young crops with other people's factories. What is given to Zheng Moumou is given to Zheng Moumou, which is enough to prove that it is normal and open.
Secondly, there is documentary evidence (receipt voucher) to prove that the stone has endorsed the voucher: "Attached list, please examine and approve"; On the front of the documentary evidence is Xu Shuangdi's instruction: "Agree to pay". However, Shi's confession was accompanied by a copy of the list (see the original transcript of the trial of the second instance), while Zhang Moumou, Xu Shuangdi and others testified that they did not see the list, but actually attached a so-called report instead of a list.
In the face of these two sets of tit-for-tat evidence, it should be clear at a glance:
A. the validity of legal evidence: documentary evidence is higher than verbal evidence. Why did the prosecution and the district court deny the documentary evidence with the testimony of Zhang Moumou, Xu Shuangdi and others?
B The prosecution said that the three defendants made a "list" for future inspection, which is unfounded speculation and cannot be used as evidence!
C regarding the "list" in this case, the conclusion that "only the report is attached without the list" cannot be deduced:
First of all, it is an irrefutable fact that Shi has endorsed the words "attached list, please examine and approve" on the financial voucher.
Secondly, this money has five approval links. As approvers, Xu Shuangdi and others are not illiterate and can't recognize the word "attached form". If a report is attached instead of a "list", it is impossible not to find it during the examination and approval process, and they will definitely request that the report be changed to a "list". The word "schedule" is a special and important explanation for the purpose of the approved amount. If there is the word "attached list", it should be presumed that there is an attached list (note: there are two invoices and another voucher of 6.5438+0.48 million yuan on the same day, and Shi Moumou also endorsed the "attached settlement list", but the actual list is attached, which can indirectly prove that the financial voucher of this case was indeed attached with a list at that time), which is a normal and reasonable presumption.
Third, because the words "attached bill" appeared on the back of the financial voucher, and then the list disappeared, it cannot be inferred that there was no attached bill at that time. Because this can't rule out two possibilities of the attached copy: one is the possibility of losing it, and the other is the possibility of being deliberately deleted. What's more, both Tong Moumou and Shi Moumou said that they had seen a copy of this list in financial information later, so the above two possibilities were not ruled out.
Our above presumption is the legal presumption of innocence. The prosecution thinks that "there is no list attached" and the list is for future inspection, which not only violates the evidence rule that "documentary evidence is more effective than words", but also is the result of illegal "presumption of guilt" and is prohibited by law! Therefore, the prosecution's conclusion that the three defendants "concealed the facts" by "no attachment list" is completely untenable!
3 Zheng's money is public. Although Zheng didn't give the village accounting vouchers, he can't think that Zheng has something to hide by collecting money. Look at the facts:
First, the cashier knows that he has received the money; Second, Fu Moumou, the deputy secretary of the village, and the villagers knew that Zheng Moumou had received money. Fu's testimony proved in detail that he went to the town many times to ask for a solution to the problem of special young crops, and later learned that Zheng had received money and reflected it to the town.
The above evidence proves that Zheng Moumou accepted money publicly. If Zheng Moumou really collaborates with Tong Moumou and Shi Moumou for corruption, does he dare to accept money so blatantly? Obviously not. Our presumption is legal "presumption of innocence", and the prosecution presumes that Zheng Moumou "concealed the facts" and did not issue a voucher when seizing the payment for goods (Note: Actually, Zheng Moumou's behavior of not issuing a voucher for the payment for goods shall not cover up the above-mentioned public collection of money and the fact that Fang Jinyin and Fu Moumou knew that they had received the factory demolition payment! ), which constitutes the crime of corruption, is the result of using illegal "presumption of guilt"!
To sum up, the three defendants in this case are normal and open in three fundamental aspects: discussion, approval (attached list) and collection (Zheng 1.7 million yuan). There is no case of "concealing facts" accused by the prosecution, and documentary evidence must not be denied by words, but by points (Zheng has no receipt).
Second, looking at the evidence in this case, it is impossible to prove the fact of "false reporting and impersonator":
① There is no problem of "false report" in this case:
What do you mean by "false report"? Fictitious facts without factual basis are false reports.
But this case doesn't exist!
First, the fence of Zhengchang has been demolished for 20 meters, which exists objectively; Second, Zheng 12 workshop was "stopped" (stopped construction) and objectively existed; Third, Zhang Moumou also admitted that this "stop" was notified by him ("I found that Zheng's factory was under construction ... I asked Tong to inform Zheng to stop construction"); Fourth, the reason for "stopping" (due to planned demolition) and the reason for temporarily not demolition due to sewer problems are all caused by the town, and obviously compensation should be given, which is also an objective existence; Fifthly, Zhang Moumou, secretary of the town committee, asked Tong to inform Zheng to stop building factories, which proved that some of Zheng's factories existed objectively within the scope of demolition. Sixth, from the actual situation of the road, the first phase of the 30-meter project has been completed, but it is necessary to widen the connection between the new road and the old road. It is only a matter of time before Zheng's factory is demolished, which is also an objective existence.
These objective existence fully prove that the money given to Zheng in this case is not a "false report"!
As for the money paid first (before the demolition), the money paid later (after the demolition), and the money paid more or less (which can be settled according to the actual situation), it has nothing to do with "false reporting" and corruption!
As for the prosecution and the court, it is said that after surveying and mapping, the money is less than half of the estimated loss of Zheng's factory. They all want to prove the fact of "false report". I can only cover my mouth in this regard. How can the prosecution and the Jin Dong court confuse "partial demolition" with "total demolition"? With this, you can disprove and misjudge! The three defendants expected to pay compensation according to the planned demolition part, not counting the loss of some factories that were not demolished according to the plan, which further proved the three defendants' attitude and behavior of seeking truth from facts. How did the prosecution and the Jin Dong court take the pragmatic behavior of the three defendants as the basis of "false report"? ! This is really the opposite! How can you handle such a case? !
As for the so-called problem that Zheng Moumou can receive the supplementary payment during the demolition, first, Zheng Moumou's money is public and it is absolutely impossible to receive it again; Second, even if it can be "resumed", it is only speculation and cannot be used as conclusive evidence.
② There is no problem of "impostor" in this case:
What do you mean by "active"? Taking money and taking things that don't belong to you is called taking the initiative. This case does not exist at all.
Although Zheng's factory building is not marked in the List, it is marked with "Demolition and widening of the factory building fence" (the word "road" is missing here), and three details are listed, and the fact that the 20-meter fence was demolished and "stopped construction" (stopped its construction) because of the extension and widening of the road. In this case, only one factory is Zheng Moumou, which is absolutely exclusive and other factories can't misunderstand. It really refers to Zheng's factory, so Zheng received the demolition fee (including advance payment) of his factory, and Zheng did not receive the demolition fee of other factories. Therefore, from the content and the identity of the payee, there is no problem of "impersonation".
Third, on the issue of "stolen goods". The prosecution said that when Zheng accepted the money, it already constituted a crime of corruption. It is also said that the problem of the whereabouts of the stolen money does not affect the composition of corruption.
We can also frankly say that the crime of corruption cannot be established, because the above-mentioned "false report" and "impersonation" do not exist. But we still have to analyze the problem of "stolen goods" to further prove that the accusation of "corruption" is false!
(1) "Stolen goods" is the object that the actor intends to illegally possess, and it is the starting point and destination of the actor. It is obviously inappropriate to separate it from conviction. Because it is not for the purpose of obtaining "stolen goods", what about the intention of illegal possession and what constitutes the crime of corruption? !
(2) Regarding the "stolen goods" in this case, there are many problems that can affect the final decision:
First, if the three defendants really discussed corruption, why not discuss the issue of "sharing stolen goods"? !
Secondly, if the three defendants really have the problem of * * * seeking personal gain, why did one hand be handed over to the other hand at will? There were three statements about the amount of stolen goods in the confession of the three defendants who were tortured, and all three made the opposite excuses after removing the confession by torture? !
Third, if the three defendants really got the money, why was the whereabouts of the money extorted by torture denied by the facts? !
Regarding these question marks, in the absence of sufficient evidence for the prosecution to deny them, it can only be concluded that the three defendants in this case did not commit the crime of * * * corruption at all, 12, which is inconsistent with the subjective elements of this case.
In the confession of extorting a confession by torture, Tong Moumou said: "Because Shi Moumou and I were very nervous about buying land at that time, we wanted to use this method to collect public funds." He added, "Actually, I didn't buy it. My sister wanted to buy land, and the money was tight, so I did it. " On March 23, 2005, Tong was told: "What do you think with this money of about 6.5438+0.7 million yuan?" Tong replied: "I wanted to buy land with this 6.5438+0.7 million yuan. At that time, everyone wanted to say that if something went wrong, we would use it. In the end, we all want to take it for ourselves. "
But these confessions are denied by the following facts:
First, the statement that Tong Moumou "set up money for his sister who has no money to buy land" has been denied by facts. In this way, the basis for Tong Moumou's confession to generate the idea of "setting money" is gone, so this statement has become a "castle in the air", which is not sufficient, not to mention that this proof was illegally obtained by torture and should be ruled out!
Secondly, on March 3, 2005, Kloc-0, Tong was told that he was still afraid to "retract his confession" from the prosecution in order to obtain "bail pending trial". Even so, the analysis of children's statement is untenable:
First, the statement that Tong Moumou "set money to buy land for his sister because of lack of money" has been denied by the ascertained facts.
Secondly, according to Tong, "if something happens, I will use Zheng's factory demolition compensation. If nothing happens, we'll use it. In the final analysis, we all want to take it for ourselves. " Perhaps, the prosecution believes that obtaining such evidence is the "hard evidence" to prove the defendant's subjective intention. In fact, even if Tong made mistakes at that time, it can only prove that the defendant's subjective intention of "illegal possession" does not exist.
Why? From the contradiction of "two natures" in Tong's sentencing, it is impossible to prove his subjective intention of "illegal possession". Because, in the first case, something happened, and Zheng has publicly received the money, it is absolutely impossible to receive the compensation, and he did not expect to receive two sums of money from Tong's words. Therefore, we should give the money to Zheng, so that Tong Heshi will not have the problem of possessing money. Since there are two possibilities, how can we come to the conclusion that "in the final analysis, we all want to take it for ourselves"? !
Third, Zheng later confessed: I didn't give money to Tong and Shi, which further proved that Tong's confession about "subjective intention" at that time was false!
To sum up, Tong Moumou does not have the subjective elements that constitute the crime of corruption, so Tong Moumou does not constitute this crime!
Trial judgment
The first-instance judgment of a district people's court in a city found that some corruption facts accused by the public prosecution agency were basically clear. There is evidence to prove that the defendants Tong Moumou and Shi Moumou took advantage of their positions in charge of and in charge of Zhenxi when they were the party secretary and director of Zhenxi respectively, and together with the defendant Zheng Moumou, they illegally occupied public funds by means of concealing facts and lying about the situation, which constituted the crime of corruption. The defendants Tong Moumou and Shi Moumou were sentenced to fixed-term imprisonment according to law. Later, because the original trial found that the three defendants had embezzled public funds, the evidence was insufficient, and the original trial also violated legal procedures, so the Intermediate People's Court of a city in Zhejiang Province ruled to revoke the original judgment and sent it back for retrial. After remanding for retrial, the judgment of the district court is the same as that of the original trial that was revoked. After that, the defendant appealed to a city intermediate people's court. After trial, the Intermediate People's Court revoked part of the judgments of the people's courts in a certain city and district of Zhejiang Province, and sentenced the defendants Tong Moumou, Shi Moumou and Zheng Moumou for embezzlement of public funds. Among them, the defendant Tong Moumou and the defendant Shi Moumou were exempted from criminal punishment, and the defendant Zheng Moumou was sentenced to two years in prison.
Classical analysis
The crime of corruption refers to the act of state functionaries taking advantage of their positions to embezzle, steal, defraud or illegally occupy public property by other means. From the main point of view, Tong Moumou and Shi Moumou belong to the staff of state organs. Although Zheng Moumou does not have the status of a typical national staff member, if the above two people constitute the crime of corruption, they may also constitute the crime of * * *. From an objective and subjective point of view, the evidence is indeed insufficient, and it cannot be determined that they deliberately defrauded and illegally possessed public property. First, the behavior of Tong Moumou and others does not conform to the behavioral characteristics of "cheating". Deception means that the actor uses his position to fabricate facts or conceal the truth in a legal form and illegally occupy public property. In this case, the actor declared the money and did not hide it. There are also objective and real reasons for paying this money. Tong's behavior did not fabricate facts or conceal the truth, so it did not conform to this feature and there was no "cheating" behavior. Second, the direction of funds also affects the composition of corruption crimes. In the crime of corruption, the destination of stolen money and goods is the evidence to prove the constitutive elements of the crime. Without it, other reasonable doubts can't be ruled out, and it can't reach a certain degree. In this case, the three people's statements about the amount of the stolen money were inconsistent, and the whereabouts of the stolen money were also denied by the evidence. The whereabouts are unknown, and they have not been found out, so nothing can be proved. These unknowns directly affected the establishment of these three criminal acts. Third, the evidence in this case did not meet the standard of proof required by law. In this case, the investigators extorted confessions by torture, and the public prosecutor used instruments for interrogation for a long time. Therefore, the confessions made by Tong Moumou and other three people during their detention cannot be accepted, and should be excluded according to the exclusionary rules of illegal evidence in China. Moreover, the evidence in this case cannot be mutually confirmed, supported and explained, and the contradictions in the middle cannot be explained and eliminated. Therefore, the behavior of three people, including Tong Moumou, does not meet the constitutive requirements of the crime of corruption and cannot constitute the crime of corruption.