Complainant: * * *, male, born on * * * * * of * * *, originally from * * * * * city, Han nationality, junior high school education, occupation before arrest: none, domicile: * * * * * District, province.
People's Court * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *. * * * * * The term of imprisonment is from * * * to * * * * in * * * year. After the verdict was pronounced, the complainant refused to accept it and appealed to the * * * * * Intermediate People's Court, which made a criminal ruling of (* * * * *) * * * *? Reject the appeal and uphold the original judgment? And take legal effect and deliver it for execution. The complainant was sent to the * * * prison in this province on * * on * * and is currently serving his sentence in the * * sub-prison in the * * * prison area.
Changes in the executed sentence during serving the sentence: on * * * * * *, the sentence was reduced by the Intermediate People's Court of * * * * for one year and five months. * * * Year * * Month * * By * * * City Intermediate People's Court, the sentence was reduced for one year and six months. After commutation, the term of imprisonment starts on * * * * day of * * * year, and the remaining term of imprisonment is * * * month of * * * year.
Appeal request:
The complainant refused to accept the criminal ruling of the Intermediate People's Court * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *. The defendant * * * refused to plead guilty in court and was given a heavier punishment. ? Part, now file a complaint.
Main facts:
In the early morning of ××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××
On ×××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××× During the trial, the complainant argued that he did not participate in the robbery, that the transcripts made by the public security organs were untrue, and that the confession of co-defendant Lv Chunlei was framed. The people's court of ×××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××× The defendant * * * refused to plead guilty in court and was given a heavier punishment. ? Accordingly, the complainant was sentenced to 1 1 year imprisonment.
The complainant thinks that there is no problem with the facts found in the first-instance judgment, but the first-instance judgment quoted in line 14 on page 6? Refusing to plead guilty in court and giving a heavier punishment? There is no legal basis, there is an error in the application of the law, the sentence is too heavy, and the sentence is requested to be changed.
The reasons and legal basis are as follows:
First,? Defendant? How can you be guilty without a verdict? ? Refuse to plead guilty? Where to start?
Article 12 of the Criminal Procedure Law? No one shall be found guilty without a judgment of the people's court according to law. ?
The defendant is defined as:? A person accused of a crime and tried by a people's court. It may be the object of criminal responsibility or an innocent person. ? That is, the defendant in the trial process is an innocent identity that has not yet been convicted.
During the trial, the complainant appeared as a defendant, but the defendant was undecided and not convicted, so there was no question of whether to plead guilty or not.
Second, the plea of not guilty and? Refuse to plead guilty? They are all non-criminal acts and do not belong to the scope of punishment.
The first article of the criminal law? In order to punish crimes and protect the people, this law is formulated in accordance with the Constitution and in combination with China's specific experience and actual situation in fighting crimes.
Rule number two The task of the Criminal Law of People's Republic of China (PRC) is to fight all criminal acts with punishment. The purpose and task of China's criminal law is to punish criminal acts. Not pleading guilty or refusing to plead guilty in court is a non-criminal act, which has nothing to do with the criminal facts themselves and cannot change the criminal facts. However, the scope of punishment in criminal law is only criminal acts, and non-criminal acts do not belong to its jurisdiction and are not subject to criminal punishment.
Three, the complainant has confessed the facts of the crime in the investigation stage, and concealing the facts of the crime cannot be established. It is against the law to force the defendant to prove his guilt by means of severe punishment.
Article 43 of the Criminal Procedure Law? It is strictly forbidden to extort confessions by torture and collect evidence by threats, enticements, deception or other illegal methods. ?
Article 93? A criminal suspect shall truthfully answer the questions of investigators. "
1998 10 article 14 of the international Covenant on civil and political rights signed by China: no one shall be forced to testify against himself or to confess a crime. ?
According to the provisions of the Criminal Procedure Law, criminal suspects should answer truthfully in the inquiry at the investigation stage, and at the same time, they are allowed to plead not guilty. At the same time, the law of our country has not made any subsequent punishment provisions for this clause, that is? Should be honest? This is just a soft rule, not mandatory.
In fact, at the investigation stage, the complainant confessed his criminal facts and signed them twice, which was confirmed as evidence by the court, that is, the twelfth evidence in the first-instance judgment. In the investigation stage, the complainant confessed that the criminal facts existed, and he could not deny the facts just because he did not plead guilty in the trial. So it is impossible to conceal the facts of the crime, and it is impossible to use this as a reason? Refuse to plead guilty? Give punishment.
According to the provisions of China's criminal procedure law, evidence is more important than confession when the defendant is convicted and sentenced. Only the confession of the defendant and no other evidence can make the defendant guilty. If there is no confession of the defendant and there is other evidence, the defendant can be found guilty. In other words, confession cannot be convicted alone, even if the defendant pleads guilty. Obviously, if the defendant does not plead guilty, the defendant's punishment cannot be aggravated. It is against the law to force the defendant to prove his guilt by means of severe punishment.
Fourth,? Refusing to plead guilty and being severely punished? Violation? Presumption of innocence and? Burden of proof? In principle, are there any defendants in the trial? Self-incrimination? Obligation.
In the judgment of the court of first instance, the defendant refused to plead guilty in court and was given a heavier punishment. ? The time and place have been specified in detail, that is, the identity is the defendant; The time is during the trial; The place is the court; If you can't prove your guilt, you can't prove it. Self-incrimination? ; The result is a heavier punishment.
The existing laws in China have been basically implemented? The principle of presumption of innocence, and the burden of proof stipulated in the criminal procedure law is? Who advocates, who gives evidence? In the judicial sense, this principle is that all citizens are presumed innocent in law, and this state continues until the judgment. Before the court decides, the defendant should not be presumed guilty just because he is suspected or involved in the lawsuit, but should be proved guilty by the evidence provided by the public prosecution agency and finally determined by the judicial organ. The defendant himself has no responsibility and obligation to prove his guilt, just because the defendant doesn't? Self-incrimination? Or plead not guilty.
Even defense lawyers can't refute and accuse the defendant. Must the defendant prove his guilt?
Five, the defendant to defend himself is the right given by law, protected by law, should not be deprived, nor should it be severely punished.
Article 32 of the Criminal Procedure Law? A criminal suspect or defendant may entrust one or two persons as defenders in addition to exercising their right of defense. ?
Article 35? The responsibility of the defender is to provide materials and opinions to prove the innocence or leniency of criminal suspects and defendants, or to reduce or exempt them from criminal responsibility according to facts and laws.
The plea of innocence is a way for the complainant to exercise his right of defense in court trial, and even if it is not exercised correctly, it should not be punished. In the first-instance judgment? Therefore, his defense viewpoint cannot be established and will not be adopted by this court. ? It was admitted that the complainant was defending himself during the trial, wasn't it? Not adopted? Deprive the complainant of his right to defense, as? Refuse to plead guilty? , more can't give? Heavy penalty? .
During the trial, the complainant only pleaded not guilty, which did not meet the requirements of Article 161 of the Criminal Procedure Law or Article 309 of the Criminal Law.
6. The attitude of pleading guilty is not evidence, and whether or not to plead guilty is not a plot that should be considered when sentencing. Article 6 1 of the criminal law? When deciding the punishment for a criminal, it shall be imposed in accordance with the relevant provisions of this Law and according to the facts, nature and circumstances of the crime and the degree of harm to society. ?
Article 42 of the Criminal Procedure Law? All the facts that prove the true situation of the case are evidence. ? The sentencing provisions of the current criminal law have clearly abolished the sentencing principle in the draft of 1979 Criminal Law. According to the criminal's personal situation, the honesty of confession and the attitude of repentance towards crime? In a word. The criminal law clearly stipulates several aspects that should be considered when sentencing, which obviously does not include whether the defendant defends innocence. At the same time, this clause has clearly stipulated that when deciding the punishment, it should be in accordance with? This law? That is, the relevant provisions of the criminal law. This clause is the only one about the legal basis of discretionary circumstances, that is, in the text? The nature and circumstances of the crime? . However, this clause has clearly stipulated that the circumstances considered in sentencing can only be the circumstances of the crime itself, excluding non-criminal circumstances, unless there are special provisions in the criminal law. Such as recidivism and drug recidivism.
What are the provisions of the Criminal Procedure Law and the Evidence Law on evidence? Objective facts that must be related to criminal facts? So what is the direct or indirect relationship between self-incrimination and criminal facts? What criminal facts can be proved?
Seven, the defense of innocence is not the plot of the crime itself, nor is it a manifestation of social harm and personal danger, and should not be the object of criminal punishment.
Article 6 1 of the criminal law? Sentencing regulations? Medium? How harmful is the society? According to the theory of criminal law: It can only be a plot inherent in the objective criminal facts and reflecting the degree of social harm, excluding situations other than crime. ? In short, how much harm has criminal behavior caused to the interests of the country and the people, and undiscovered or imagined harm is not included.
The subjective viciousness and personal danger of criminals are mainly manifested in the potential harm to society or the possibility of recidivism. It refers to the criminal's anti-social character or dangerous tendency, which is not a real criminal act and cannot be used as the object of criminal punishment, let alone as the basis for heavier punishment. In China's current criminal law, it is only meaningful to apply probation and parole, because it is a necessary situation for prevention. If you say not guilty or not? Refuse to plead guilty? There is a certain degree of social harm or the possibility of recidivism, which can only be a hypothetical situation, not a real plot, and should not be punished.
What was put forward to the plaintiff's trial defender in the judgment of first instance? The defendant * * * is a first-time offender, has no criminal record and has no personal injury to the victim? Will the court adopt the defense's point of view as appropriate? . It shows that the court of first instance agrees that the complainant has no serious subjective malignancy and great personal danger.
Eight, the defense of innocence does not belong to the statutory heavier punishment circumstances.
Article 62 of the criminal law? If a criminal has the circumstances of heavier punishment or lighter punishment as stipulated in this law, he shall be sentenced to punishment within the limits of statutory punishment. ?
This article stipulates that criminals can be severely punished when they are convicted and sentenced only if they meet the circumstances of heavier punishment clearly defined in the narrow sense of the Criminal Code. At present, there are 36 kinds of aggravating circumstances in our criminal law. In addition to recidivism, recidivism endangering national security, and recidivism of drugs, other provisions are heavier, the circumstances are bad, or the social harm is greater, excluding the plea of innocence or? Refuse to plead guilty? .
Nine, according to the law, discretionary circumstances can be divided into lenient circumstances and strict circumstances, and there is no heavier circumstances.
According to Article 62 of the Criminal Law, there are only statutory circumstances of heavier punishment in our country, and there is no discretionary circumstances of heavier punishment.
According to the interpretation of "Several Opinions on Implementing the Criminal Policy of Tempering Justice with Leniency", discretionary circumstances can be divided into lenient circumstances and strict circumstances, and there is no aggravating circumstances.
In criminal law theory, discretionary circumstances are explained as follows:? Although there is no explicit provision in the law, the circumstances that need to be considered in the trial process must be enough to affect the harm of crime to society. Discretionary circumstances that need to be considered in trial practice mainly include: criminal motive, criminal means, environment and conditions at the time of crime, consistent performance of criminals, degree of harm of crime and attitude after crime. ? In other words, the premise of determining discretionary circumstances is to influence the harmfulness of crime to society.
According to criminal law theory? Attitude after committing the crime? Interpreted as:? Such as sincerely repenting, confessing the crime, actively returning stolen goods, actively compensating for losses, and actively taking measures to eliminate or mitigate the harmful consequences, should we be given a lighter punishment than refusing to plead guilty, destroying criminal evidence, and trying to evade guilt? . Obviously, this? Attitude after committing the crime? And the defense at trial are two concepts that cannot be compared, and there is no provision for a heavier punishment for refusing to plead guilty.
Ten, China's law has no mandatory punishment for refusing to plead guilty, and can be punished by analogy without permission.
"Several Opinions on Applying Ordinary Procedures to Trial Cases in which the Defendant Pleads Guilty" Article 9 If the defendant voluntarily pleads guilty, the people's court shall give him a lighter punishment. ?
There is no provision in our country's law to force the defendant to plead guilty, and there is no provision in the law that failing to truthfully confess the facts of a crime or self-incriminating himself should be punished. Therefore, in order to encourage the defendant to confess the facts of the crime or plead guilty voluntarily, he can be given a lighter punishment as appropriate, and at the same time, the law does not allow a heavier punishment according to the lighter terms. According to the court of first instance? Pleading guilty is lighter, not pleading guilty is heavier? So what kind of performance is not light or heavy?
Eleven,? Strict resistance? Doesn't mean. Resist getting heavier? ; ? Heavy penalty? What is the reference? Without being severely punished? , not? Lighter punishment? .
The Supreme People's Court's opinion on implementing the criminal policy of combining leniency with severity Article 8? Those who refuse to plead guilty, do not repent, or conceal the facts of the crime, destroy evidence, attack and defend the alliance, or abscond with a negative case after the incident, should be resolutely punished according to law. ?
Strict resistance? Relative to? Confess and be lenient, so-called Resistance means that criminals resist arrest, destroy evidence, threaten to retaliate against prosecutors and witnesses, prevent accomplices from confessing, and form an offensive and defensive alliance. Just passively refusing to confess or admit the facts of the crime cannot be regarded as resistance. ? Strict? The original intention is not? Heavy? , but? Not generous? . To * * * * years * * * months, the time for the complainant to commit a crime has passed, and there is no express provision in our laws. Those who do not plead guilty or refuse to plead guilty shall be given a heavier punishment. The Opinions on Carrying out the Criminal Policy of Tempering Justice with Leniency formulated by the Supreme Law 20 10 has authoritative guiding significance for the discretionary circumstances of the trial. Strict? It is defined like this:? Mainly refers to the crime is very serious, great social harm, should be sentenced to heavy punishment or death according to law, must be resolutely sentenced to heavy punishment or death; Defendants who are socially harmful or severely punished, as well as defendants who are subjectively vicious and personally dangerous, should be severely punished according to law. ? Namely: strictly punish according to law, do not enjoy? Be lenient? Policy and? Lighter? Reward. According to the interpretation of the Opinions, after the incident, it can only be called "concealing criminal facts, destroying evidence, forming an offensive and defensive alliance, and absconding with a negative case". Refuse to plead guilty? At the same time? Refuse to plead guilty? We should punish them severely according to law, not severely.
Therefore, it does not constitute that the complainant confessed the facts of the crime at the investigation stage and did not plead guilty at the trial? Refuse to plead guilty? , not affected? Severe punishment? , more should not? Heavy penalty? .
Twelve,? Refuse to plead guilty and be severely punished? , violation? Statutory crime? 、? Equal application of law? And then what? Adapt to crime and punishment? The principle of.
Article 3 of the criminal law? If the law expressly stipulates that it is a criminal act, it shall be convicted and punished according to law; If the law does not clearly stipulate that it is a criminal act, it shall not be convicted and punished. ?
Article 4? Anyone who commits a crime is equal in the application of the law. No one is allowed to have the privilege beyond the law. ?
Article 5? The severity of punishment should be commensurate with the crimes committed by criminals and their criminal responsibilities. Statutory crime? 、? Equal application of law? And then what? Adapt to crime and punishment? Principle is the basic principle of criminal trial in China, and it is a criterion that must be strictly observed.
Statutory crime? Principles include? The legality of the crime? And then what? Statutory punishment? Needless to say, a legally prescribed punishment for a crime does not simply mean that all kinds of crimes must be punished within the statutory sentencing range, but also includes the principle that non-criminal circumstances cannot be used as the basis for heavier punishment without legal provisions. This principle requires: there is no explicit stipulation that there is no crime, and there is no explicit stipulation that there is no punishment? . Except in cases expressly stipulated in the Criminal Law, no penalty shall be imposed in cases other than crimes. The current criminal law has abolished the provisions of the original criminal law on analogy, so whether the defendant applies a heavier punishment should be based on the criminal law, and we can't subjectively think that a heavier punishment should be imposed.
Equal application of law? Basically, everyone should be equally protected by the criminal law, and once a crime is committed, the criminal law should be equally applied. The equal application of criminal law has two meanings: first, anyone who commits a crime, regardless of his personal situation, is not allowed to have the privilege beyond the law; Second, for anyone who commits a crime, the law does not stipulate the performance before, after and outside the crime as the basis for heavier punishment, and it cannot be used as a reason for heavier punishment. For example, if a state functionary commits a crime, he cannot be given a heavier punishment on the grounds that the offender is a state functionary unless there are special provisions in the law.
Adapt to crime and punishment? Is that sentencing must be? Taking criminal facts as the basis and criminal law as the criterion? . In the trial and sentencing, the severity of the penalty should be commensurate with the crime committed, and the circumstances that are not stipulated in the criminal law or have nothing to do with the facts of the crime should not be arbitrarily cited to give a heavier sentence, that is? Punish it as a crime? . The trial is based on criminal acts, and all non-criminal acts are not punished except those expressly stipulated by law. ? Is the punishment appropriate? This principle covers the content that non-criminal circumstances are prohibited as the basis for heavier punishment.
What is the basis of the first-instance judgment? Refuse to plead guilty in court? Reason, complainant? Heavy penalty? The verdict is obviously inconsistent? Statutory crime? 、? Equal application of law? And then what? Adapt to crime and punishment? If the judgment violates the three basic principles of criminal trial at the same time, it shall be deemed as a wrong judgment according to law, and the heavier punishment shall be revoked and the sentence changed.
12. Criminals have the right to appeal, and the accepting organ shall revise the wrong judgment. Article 21 of the prison law? If a criminal refuses to accept the effective judgment, he may lodge a complaint. ? Paragraph 2 of Article 189 of the Criminal Procedure Law? If the original judgment found that the facts were not wrong, but the applicable law was wrong, or the sentence was improper, the judgment shall be revised; Article 303 of the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Criminal Procedure Law of People's Republic of China (PRC)? If the complainant refuses to accept the rejection of the appeal, he may appeal to the people's court at the next higher level. ?
The Supreme People's Court's "Specific Provisions on the Trial Procedure of Criminal Retrial Cases (Trial)" Article 8? Unless the procuratorate protests, retrial shall generally not increase the punishment of the defendant in the original trial. ?
Article 2 of the Supreme People's Court Criminal Appeal Notice? The indictment shall be filed with the people's court within two years after the defendant's penalty is executed at the latest. ?
The Supreme People's Court's interpretation of some issues concerning the implementation of the Criminal Procedure Law of People's Republic of China (PRC) Article 298? The acceptance and examination of complaints are generally conducted by the people's court that has made a legally effective judgment or ruling. ?
In this case, the judgment of first instance was confirmed by (2007)*** Criminal Chu ZiNo. 102. * * *, which has taken legal effect and is delivered for execution. Therefore, the court that accepts and examines the complaint materials should be Jiamusi Intermediate People's Court.
According to the law, criminals have the right to appeal to the people's court against legally effective judgments and rulings, and the people's court should appeal to criminals. Is there an error in the application of the law? The verdict was changed.
To sum up, I urge the people's court to support the complainant's legitimate demands, determine the wrong judgment according to law, and revise the judgment.
My educational level is limited. If I am biased or misunderstood in the process of learning legal knowledge, please inform the relevant legal provisions in order to achieve the purpose of educational transformation. I would be very grateful.
I am here to convey
* * * * * Provincial * * * City Intermediate People's Court
Complainant:
date month year
Attachment: copy of the judgment of first instance;
A copy of the final criminal verdict.