Su Guihua opened a casino case
-How to review sentencing suggestions in cases of pleading guilty and admitting punishment, and how to deal with cases protested by procuratorial organs because the court of first instance did not suggest adjusting sentencing suggestions?
I. Basic information
Defendant Su Guihua, female, Han nationality,1born in August 1978. 20/kloc-0 was arrested on may 6, 9.
The People's Procuratorate of Liuyang City, Hunan Province accused the defendant Su Guihua of committing the crime of opening a casino, and filed a public prosecution with the Liuyang People's Court, suggesting that the case be tried by summary procedure, and sentenced Su Guihua to fixed-term imprisonment of not less than eight months but not more than ten months, and fined him. The inspection organ shall also transfer the confession and repentance signed by Su Guihua.
The defendant Su Guihua truthfully confessed his crime, and had no objection to the alleged criminal facts, sentencing suggestions and the application of summary procedures, and voluntarily signed a confession and repentance book.
The People's Court of Liuyang City, Hunan Province tried the case by summary procedure. It was found through trial that from the first half of 20 17 to April of 20 19, the defendant Su Guihua opened a casino in Dongyang Community, Dongyang Town, Liuyang City, Hunan Province in the form of "underground Mark Six Lottery", and after accepting bets from gamblers, he made profits according to a certain proportion and reported it online. * * * accepted Peng, Shao, Zhou and Zhang.
The People's Court of Liuyang City, Hunan Province held that the defendant Su Guihua used the "underground Mark Six Lottery" to accept other people's odd lottery tickets for profit, amounting to more than 10,000 yuan, and his behavior constituted the crime of opening a casino, and the charges accused by the public prosecution agency were established. Su Guihua confessed his crimes truthfully, frankly and voluntarily, and can be given a lighter punishment according to law. Accordingly, in accordance with the provisions of the second paragraph of Article 303 and the third paragraph of Article 67 of the Criminal Law of People's Republic of China (PRC), the judgment is as follows:
Defendant Su Guihua was convicted of opening a casino, sentenced to five months' criminal detention and fined RMB 3,000.
After the verdict was pronounced in the first instance, the defendant Su Guihua did not appeal and the procuratorate protested.
The People's Procuratorate of Liuyang City, Hunan Province protested that this case was a case of pleading guilty and admitting punishment, and the sentencing proposal put forward by the procuratorate was fixed-term imprisonment of not less than eight months but not more than ten months. Without asking the procuratorate in writing or orally in advance, the court made a judgment that was lower than the sentencing recommendation, which violated the provisions of Article 201 of the Criminal Procedure Law of People's Republic of China (PRC), and the sentencing was extremely light. Changsha Municipal People's Procuratorate supports Liuyang Municipal People's Procuratorate's protest.
After the second trial, Changsha Intermediate People's Court held that Su Guihua, the defendant in the original trial, used the lottery information and winning and losing rules of the underground Mark Six lottery for the purpose of making profits, and his behavior constituted the crime of opening a casino. Su Guihua confessed the crime truthfully after being brought to justice, and voluntarily pleaded guilty and admitted punishment, which can be given a lighter punishment according to law. According to the opinions of the protest organ and the Changsha Municipal People's Procuratorate, it is considered that (1) according to Item (2) of Paragraph 1 of Article 43 of the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Public Security Organs to Jurisdicte Criminal Cases, if three or more people are organized to gamble, and the accumulated gambling funds exceed 50,000 yuan, they should be filed for prosecution. In this case, Su Guihua accepted someone else's code list 1 10,000 yuan, which just reached the threshold of conviction, and. The court of first instance comprehensively considered Su Guihua's criminal facts, nature, circumstances, degree of harm to society and the balanced sentencing of similar cases, sentenced him to five months' criminal detention and fined him RMB 3,000. (2) Liuyang People's Court made a judgment according to law, but the sentencing was not improper, which had no substantial impact on the litigation rights of the parties and ensured the fairness of the trial. The original judgment found that the facts were clear, the evidence was true and sufficient, the conviction was accurate, the sentencing was appropriate, and the trial procedure was legal. The ruling dismissed the protest and upheld the original judgment.
Second, the main problems
(1) How to review the sentencing suggestions in cases of pleading guilty and recognizing punishment to ensure the accuracy and fairness of the people's court's discretion?
(2) After listening to the opinions of both the prosecution and the defense, the people's court made a judgment according to law, and the procuratorial organ protested on the grounds of violating legal procedures. Should it be supported?
Third, the referee's reasons
(a) the people's court shall conduct a comprehensive substantive examination of cases of confession and punishment according to law.
It is the legal duty of the people's court to conduct a comprehensive substantive review of the cases of confession and punishment to ensure the fairness of the trial. This is determined by the characteristics of China's criminal procedure and the allocation of judicial power. The plea bargaining system in China is essentially different from that in the United States, and it is not a copy of the plea bargaining system. If the procuratorial organ brings a public prosecution based on a case of pleading guilty and admitting punishment, the people's court shall examine whether it meets the applicable conditions of the lenient system of pleading guilty and admitting punishment according to law, and whether the defendant really has the circumstances of pleading guilty and admitting punishment. If it meets the applicable conditions of the lenient system of pleading guilty, the trial should focus on the voluntariness of pleading guilty, the legality of signing the statement in the prosecution stage and whether there is a factual basis. According to the facts ascertained in the trial, it should comprehensively review whether the charges of prosecution are accurate and whether the sentencing suggestions are appropriate. In a word, we should give full play to the function of trial and ensure the quality of cases of confession and punishment.
(two) the people's court shall conduct a comprehensive review of the sentencing recommendations.
According to the first paragraph of Article 201 of the Criminal Procedure Law, the adoption of sentencing suggestions is conditional. Therefore, the people's court should, on the basis of finding out the facts and correctly applying the law, conduct a substantive review of sentencing suggestions, including the following aspects: First, review whether sentencing suggestions are applicable. If the sentencing is the same, but the sentencing is improper, it is suggested that the sentencing is obviously improper. Second, we should compare the sentence to be announced with the recommended sentence. Both the absolute value and the proportion of the difference should be considered. For long sentences, although the proportion is not high, the absolute value of the difference is large, which is obviously inappropriate. On the other hand, for cases with short sentences, although the absolute value of the difference is small, the proportion is high, which is still obviously inappropriate sentencing suggestions. Third, we should pay attention to the retrieval of similar cases to ensure the balance of sentencing and the unity of legal application. If after searching similar cases, it is found that the sentencing suggestions are obviously unbalanced with the sentencing of similar cases, then the sentencing suggestions are obviously inappropriate. Fourthly, we should compare the sentencing of cases of confession and punishment with that of ordinary cases. If the sentencing of a case of confession and punishment is heavier than that of an ordinary case, the sentencing suggestion is obviously inappropriate.
(3) If the procuratorial organ protested because the court of first instance did not suggest adjusting the sentencing proposal, the court of second instance should not send it back for retrial on the grounds of procedural violation.
The adjustment of sentencing suggestions stipulated in the Criminal Procedure Law aims at alleviating the gap between the lack of accuracy of sentencing suggestions of procuratorial organs and the requirements of fair sentencing in judicial decisions. Therefore, the Criminal Procedure Law clearly stipulates that if the people's court thinks that the sentencing proposal is obviously inappropriate, the people's procuratorate may adjust the sentencing proposal, and the people's court that the people's procuratorate does not adjust the sentencing proposal shall make a judgment according to law. In practice, the people's court fully listened to the opinions of both the prosecution and the defense in the trial, and made a judgment according to law on this basis. The procedure is not illegal, which meets the requirements of ensuring the formation of the judgment in the court's substantive trial, and also avoids the extension of the trial period and the waste of judicial resources caused by the adjustment of sentencing recommendations. If the procuratorial organ lodges a protest on this basis, the court of second instance shall conduct a comprehensive review. If, after the trial, he thinks that there is no mistake in the fact finding, conviction and sentencing of the first-instance judgment, he should not be sent back for retrial on the grounds of violating the procedure.
In this case, the defendant Su Guihua has just reached the threshold of conviction, and has a mitigating circumstance of confessing leniency and voluntarily paying the fine. From the analysis of the principle of suiting crime to punishment, the requirement of standardized sentencing and the search of similar cases, it is obviously inappropriate to sentence the defendant to five months' criminal detention. On the basis of listening to the opinions of both the prosecution and the defense, the first instance comprehensively considered Su Guihua's criminal facts, nature, plot, degree of harm to society, sentencing balance of similar cases and sentencing situation of innocent cases, and sentenced him to five months' criminal detention with appropriate sentencing. Based on the trial function, the court of first instance guaranteed the rights of both the prosecution and the defense to express their opinions through hearing, ensured the accuracy and fairness of discretionary sentencing, had no substantial impact on the litigation rights of the parties, and safeguarded the legitimate rights and interests of the parties according to law. Therefore, it is not illegal for the first instance to inform the adjustment of sentencing suggestions, and it is not in compliance with the law to lodge a protest accordingly. The court of second instance ruled that the protest was dismissed and the original judgment was upheld.