defense words
defense words
presiding judge and judge:
according to the provisions of the Criminal Procedure Law, I accepted the entrustment of the defendant's family and was appointed by Shandong Huixian Law Firm to act as the defendant's defender and defend him in court. Before the trial, I consulted the case file, met with the defendant many times, listened to the investigation of the court just now, and cross-examined the evidence. Now I would like to make the following defense opinions on the criminal facts alleged in the indictment.
1. The public prosecutor accused the defendant Long Wande of constituting the crime of kidnapping, and the charge could not be established.
The so-called crime of kidnapping refers to the act of taking others hostage or using violence, coercion or other methods for the purpose of extorting property.
subjectively, this crime is out of direct intention. There are two intentional contents: one is to extort property, and the other is to obtain other benefits. This crime is objectively manifested as the act of taking others hostage or extorting property by violence, coercion or other means.
First of all, the defendant Long Wande in this case had no subjective intention of kidnapping. Through the case file materials and the confessions and mutual identification of the defendants who appeared in court, we can know that before bringing the victims to Brunei. Defendant Gai Lianyue repeatedly approached Defendant Zhang Yanhong to discuss how to teach the victim Liu Wei, without mentioning the kidnapping. When Defendant Zhang Yanhong promised Defendant Gai Lianyue to teach the victim, Zhang Yanhong found Long Wande and told him that "a friend in Jining needs to teach a person a lesson because of business, and Gai Lianyue will give money after the lesson", and he did not tell Long Wande to kidnap the victim and then ask his family for money. At 1: 11 am on February 6, 2113, the defendant Zhang Yanhong and others took the victim to Wenshang for detention. At 7: 11 on the same day, the defendant Long Wande left the place where the victim was detained because of something. On the same day, the defendant Gai Lianyue went to Wenshang. After arriving in Wenshang, he failed to pay the defendant Zhang Yanhong according to the amount agreed in advance, which caused Zhang Yanhong's dissatisfaction with Gai Lianyue. Therefore, in this case, Zhang Yanhong came up with the idea of asking the victim's family for money, which is also the key link in the case from illegal detention to kidnapping. Later, under the organization and planning of Zhang Yanhong, the defendant Zhu Hengzhi, Wu Wenning and others forced the victim Liu Wei to call his family, falsely claiming that he needed to buy goods in Jinan urgently. When the victim's family remitted 81,111 yuan to the designated account, the defendant Zhang Yanhong sent the defendant Wu Wenning and others to retrieve the stolen money from Yanzhou and Liangshan respectively twice, and then the defendant Zhang Yanhong divided the stolen money. This fact was co-defendants Wu Wenning, Xu Baomin, Liu Guanqun and Li Da. Because the defendant Long Wande left the scene where the victim was detained, he had no idea that the defendant Zhang Yanhong and others demanded money from the relatives of the victim, so there was no subjective intention to kidnap the victim Liu Wei.
Secondly, the defendant Long Wande objectively did not commit kidnapping. On February 6, 2113, the victim Liu Wei was taken to Wenshang for detention at 1: 11 am, and the defendant Long Wande left at 7: 11 am that day, and has never participated in this case since then. Then, in this case, illegal detention was transformed into kidnapping, and the defendant Long Wande had withdrawn before it was transformed into kidnapping, so it was even more impossible to talk about kidnapping.
once again, about the 4111 yuan stolen money that the defendant Long Wande got. On February 8, 2113, Zhang Yanhong received 51,111 yuan from Gai Lianyue and divided the spoils. Because the defendant Long Wande was not at the scene, Zhang Yanhong called Long Wande to ask Wu Wenning for money, and Wu Wenning did not tell Long Wande how they asked the victim's family for money when taking the money. In addition, according to Wu Wenning, the money distributed this time was given by Gailianyue, that is, the money that Zhang Yanhong told Long Wande to bring Liu Wei from Jining to Wenshang for Gailianyue before committing the crime, rather than the money that Zhang Yanhong and others demanded from Liu Wei's family. Therefore, the defendant Long Wande's income of 4,111 yuan should not be recognized as the illegal money obtained by Zhang Yanhong and others who kidnapped Liu Wei.
Based on the above analysis and discussion, the defendant Long Wande has neither subjective intention nor objective behavior of kidnapping, so the public prosecutor has no factual basis to prosecute the defendant Long Wande for kidnapping.
2. Defendant Long Wande's behavior constitutes illegal detention, and his criminal responsibility for illegal detention should be investigated according to law.
The so-called illegal detention refers to the act of illegally detaining others or illegally depriving others of their personal freedom by other means. Subjectively, this crime is intentional and has the purpose of illegally depriving others of their personal freedom. Objectively speaking, it is an act of illegally detaining others or illegally depriving others of their freedom by other means < P >. Judging from the confessions of the defendant Zhang Yanhong and others in this case, they brought the victim to Wenshang for detention at the request of the defendant Gai Lianyue, with the purpose of teaching the victim a lesson, and then Gai Lianyue paid Zhang Yanhong and others money. When Zhang Yanhong and others brought the victim to Wenshang, because Gai Lianyue did not pay in time, Zhang Yanhong and others had the idea of asking the victim's family for money. This fact can also be confirmed by the confessions of Zhang Yanhong, Wu Wenning and Zhu Hengzhi. Therefore, the defendant Long Wande subjectively had the intention of illegally depriving others of their personal freedom, knowing that the defendant Zhang Yanhong told him to go to Jining to detain the victim Liu Weibang in Wenshang, but also actively participated. Objectively, the victim was also illegally detained, which restricted the personal freedom of the victim. Therefore, the defendant Long Wande's behavior should constitute the crime of illegal detention.
Third, the defendant Long Wande committed a minor crime with less subjective malignancy.
In the early morning of February 6th, 2113, the defendant Zhang Yanhong and Long Wande and others tied the victim Liu Wei to Wenshang for detention. The whole process was organized and planned by Zhang Yanhong. In the implementation process, first, Zhang Yanhong tricked the victim Liu Wei into getting on the bus, and Wu Wenning and others tied the victim's hands with tape and took them to Wenshang. During the victim's detention, the defendant Long Wande left at 7 o'clock in the morning on the same day, and never participated in the case again, so the defendant Long Wande was relatively minor in the criminal process he participated in.
4. Defendant Long Wande was able to truthfully confess his crimes after he was brought to justice, and actively reflected on his sins during his detention, showing profound repentance. According to the principle of combining education with punishment stipulated in China's Criminal Law, it is suggested that the collegial panel give defendant Long Wande a lighter punishment.
—————— Please refer to it.