Siweijiang
The presiding judge and judge:
According to China's Criminal Procedure Law and other relevant provisions, in order to safeguard the legitimate rights and interests of Li Zhuang in accordance with the law, our lawyer hereby expresses the following defense opinions.
Special statement: This defense in court does not mean that lawyers admit that your court has jurisdiction over this case, but only to avoid the secondary damage to Li Zhuang's legitimate rights and interests, so as to defend in court according to law.
Defenders believe that from investigation to prosecution to trial, the procedure in this case has repeatedly violated the law and is full of loopholes. As the saying goes, it is not sweet to twist the melon, and the case procedure of strong management is full of holes. Procedural justice is like traffic rules. If today's Jiangbei District Public Security Law can ignore the traffic rules and knock Li Zhuang back to prison, then every ordinary person, even everyone here, will be knocked into prison tomorrow, and no one will be spared. It is only 30 years since the Cultural Revolution in China, and Yin Jian is not far away. It's hard to start over now.
Li Zhuang was told that the dictatorship machine was so powerful that no one could resist it. Of course, if it is operated according to law, the dictatorship machine is powerful. But if the authoritarian machine ignores traffic rules, legal procedures and procedural justice, I am afraid it will eventually fall into the ditch. What about the initiator? Only by maintaining the procedures prescribed by law can people's rights be protected and families live in peace with the world. This is why we should defend Li Zhuang, not only for Li Zhuang personally, but also for the long-term stability of this country. The following is a specific reply. See:
Part I: The procedure in this case is seriously illegal.
Case time node From the key time node of the case procedure, we can see many serious violations of the case procedure:
According to the file, the specific timetable of this case is as follows:
201016 jiangbei district procuratorate received a report from Xu Lijun.
20 10 65438+ 10 On October 27th, Jiangbei District Procuratorate transferred the report materials to Jiangbei District Public Security Bureau.
20 1 01October 28th,1,Jiangbei District Public Security Bureau accepted the criminal case and put it on file. The leader instructed that this was a preliminary investigation.
20 10 On February 9th, Zhuang Li was sentenced in the second instance for the crime of obstruction of criminal evidence by defenders (Gong Gangmo case).
On February 9th, 2065438+00, Gong Xiang, my cousin, reported to Jiangbei Public Security Bureau that he was suspected of contract fraud in the agency case, and the Public Security Bureau instructed him to conduct an initial investigation.
20 10 2 10, Chongqing municipal public security bureau appointed jiangbei district public security bureau to take charge of Li Zhuang's suspected contract fraud case.
20 10 February10, Chongqing jiangbei district public security bureau decided to file an investigation on Li Zhuang's suspected contract fraud case.
On February 20 10/0, Chongqing No.2 Detention Center took Zhuang Li to Nanchuan Prison, and was informed by Jiangbei District Public Security Bureau to take her out on the same day. Li Zhuang failed to serve his sentence in prison.
On 201February 1 1 day, Jiangbei District Public Security Bureau decided to file an investigation on Li Zhuang's alleged crime of obstructing testimony (Shanghai Meng Ying case).
20 1 1 On March 28th, 2008, Jiangbei District Public Security Bureau concluded its investigation on Li Zhuang's case of alleged contract fraud and obstruction of testimony, and transferred it to Jiangbei District Procuratorate.
20 1 1 On April 2, 2008, Jiangbei District Procuratorate sued Li Zhuang to Jiangbei District People's Court for the crime of alleged defender obstructing testimony.
According to the above unquestionable time node, the defender puts forward the following opinions on the procedure:
1. Jiangbei District Public Security Bureau has no jurisdiction over this case, which is illegal from the beginning of investigation.
There has never been a case in order because the court has jurisdiction, so it can be inferred that the Public Security Bureau has the power of investigation, because the court will always be behind the Public Security Bureau, and there will be a procuratorate in the middle, that is to say, Mr. Sun Tzu and Grandpa will be reborn, which violates both natural laws and legal procedures. No court has the right to investigate, and this case is no exception. Therefore, it cannot be presumed that the public security organs have jurisdiction just because the courts have jurisdiction.
Working Rules of the Procuratorate When the Jiangbei District Procuratorate receives a report of 201017, it shall transfer the case to the Xuhui District Public Security Bureau of Shanghai in accordance with the provisions of Article 24 of the Criminal Procedure Law. The provisions on jurisdiction in China's criminal procedure law are very clear. Article 18 stipulates that the investigation of criminal cases shall be conducted by public security organs, unless otherwise provided by law. This case should be investigated by the public security organs.
The first item of the first paragraph of Article 124 of the Rules of Criminal Procedure of the People's Procuratorate (hereinafter referred to as the Rules of Prosecution and Criminal Procedure) stipulates that "the reporting center shall promptly review the clues received and make the following treatments within seven days according to the different circumstances of the clues and the jurisdiction provisions: (1) Those that are not under the jurisdiction of the People's Procuratorate shall be transferred to the relevant competent authorities for handling, and the informant, complainant, informant and surrender shall be notified. ……"
Article 15 of the Public Security Rules "Provisions on Public Security Criminal Cases" "Criminal cases shall be under the jurisdiction of the public security organs in the place where the crime is committed. If it is more appropriate to be under the jurisdiction of the public security organ where the criminal suspect lives, it can be under the jurisdiction of the public security organ where the criminal suspect lives. " According to the third paragraph of Article 84 of the Criminal Procedure Law, "public security organs, people's procuratorates or people's courts shall accept reports, complaints and reports. If it does not belong to its own jurisdiction, it shall be transferred to the competent authority for handling ... ".
Article 24 of the Criminal Procedure Law clearly stipulates that criminal cases shall be under the jurisdiction of the people's court of the place where the crime was committed. If the people's court of the defendant's domicile is more suitable for trial, it may also be under the jurisdiction of the people's court of the defendant's domicile. Article 83 stipulates that when a public security organ or a people's procuratorate discovers a criminal fact or a criminal suspect, it shall file a case for investigation within its jurisdiction. Article 124 of the Rules of Criminal Procedure of the People's Procuratorate stipulates that if a report is not under the jurisdiction of the People's Procuratorate, it shall be transferred to the relevant competent authorities for handling and the informant shall be notified. The crime was committed in Xuhui District, Shanghai, and the defendant lived in Beijing. The Jiangbei District Procuratorate of Chongqing transferred the clues of this case to Xuhui District Public Security Bureau.
To sum up, the above is a link, and the legal provisions are relatively strict. No matter from that link, this case should not be investigated by Chongqing Jiangbei District Public Security Bureau, prosecuted by Jiangbei District Procuratorate and tried by Jiangbei District Court. Jiangbei District Public Security Bureau has no legal basis for jurisdiction over this case, and the procuratorate has no basis for prosecution and trial.
Second, there is no legal basis for the so-called crime of contract fraud to absorb misdemeanors that hinder testimony.
If there is no felony, how to absorb it? According to the materials provided by the prosecution, on the day of Li Zhuang's sentence, Gong Gangmo's cousin was sent to report Li Zhuang's alleged contract fraud, and the next day, Chongqing Public Security Bureau appointed Jiangbei District Public Security Bureau to file a case for investigation. It seems that Jiangbei District Public Security Bureau tried to absorb misdemeanor with felony, and exercised jurisdiction over Li Zhuang's case of alleged obstruction of testimony. Then, the so-called contract fraud case has not been prosecuted by the Jiangbei District Procuratorate, and the case will not be established. There are no cases to be merged at all, and it is impossible to actually exercise jurisdiction over cases that have no jurisdiction with invalid cases. If you want to borrow money, you have to be strong. It is impossible to have a case jurisdiction out of thin air. Playing with the law like this, is the law a woman who slipped? Therefore, logically, anyone in China can make up a felony in Chongqing, then absorb cases from other places, and then cancel the felony. Chongqing Public Security Bureau has become the national Ministry of Public Security, and even people all over the world, including the President of the United States, can be under its jurisdiction. If this absurd logic is established, is it necessary to stipulate the territorial jurisdiction of the criminal procedure law?
Third, the court exercises the jurisdiction of the court of first instance with Article 14 of the Judicial Interpretation of the Criminal Procedure Law of the Supreme Court, and the premise is not established.
Do you advocate that according to the Supreme Court's "About Execution"
According to the timetable listed above, the crime was discovered. Before the judgment of the second instance, the facts were not found when the judgment was pronounced, and the legal premise cited by your hospital was not established.
The devil hides in the details. Although there is no relevant judicial interpretation on the definition of "crime of discovery" in China's current laws, no matter what interpretation, it cannot prove that your hospital has jurisdiction over this case.
The reporting time is before sentencing.
If it is determined that the so-called missing time is the reporting time, the judgment of Li Zhuang on the crime of obstructing testimony before February 9, 20 10 should be revoked.
If "the crime of omission" is defined as the discovery of criminal clues such as reporting, then the case of Li Zhuang's suspected crime of omission should be pronounced before the second trial. Then, according to the provisions of No.3 reply from the Supreme People's Court to Jiangxi High Court (1993), the court of second instance at that time should send the case back for retrial and combine the two cases. Because the so-called crime of omission is the same crime, Li Zhuang does not combine punishment for several crimes. Jiangbei District Public Security Bureau and Procuratorate have no reason not to know that Li Zhuang's case is in the second instance. Therefore, the Jiangbei District Procuratorate concealed the case, which violated the current legal provisions and was suspected of dereliction of duty. Even if it constitutes a crime, Li Zhuang only needs to be tried once, and the procuratorate turned Li Zhuang into two trials out of thin air. Isn't it also suspected of illegal behavior?
Contract fraud is not a crime of omission.
If the crime of "discovering omission" is defined as Gong Gangmo's contract fraud case, then the crime is actually untenable, and it is impossible to govern the crime of defenders obstructing testimony with the crime of contract fraud. This is equal to a crown and a hat. Can you hold it? What is the legal basis?
The public security bureau has no evidence to file a case.
It is also nonsense to set the time when the missing crime is discovered as the time when the public security files a case for investigation. The police have no evidence, why should they file a case? According to this case, it can be found that when Jiangbei District Public Security Bureau filed a case to investigate Li Zhuang's alleged defender's crime of obstructing testimony, it was the day after Zhuang Liyuan's second-instance judgment on the case of obstructing testimony. At that time, there was no other evidence except the report materials. Filing a case without any evidence violates article 159, or even article 162 of the procedures of the Ministry of Public Security for handling criminal cases.
Put on record for investigation. First of all, we must find the "criminal facts". Xu Lijun's report alone, Jiangbei District Public Security Bureau can conclude that Zhuangli has criminal facts? Zhuang Li was arraigned on suspicion of obstructing testimony after 20 10 1 1, and the public security bureau put on file in February 1 1. Isn't it a fairy? As the Internationale said, there is no immortal body in the world. If the Jiangbei District Public Security Bureau does this, it can only be presumed that the public security organs will break the law by any means. If so, the public security organ may define the time for finding the missing crime at any time if the time for filing the case is set as the time for finding the missing crime.
To say the least, even if the Jiangbei court has jurisdiction according to this article, it does not mean that the Jiangbei Public Security Bureau has the right to investigate. You can't fall because of the fruit. The purpose of the court is trial jurisdiction, and the public security is investigation jurisdiction. The two are different. If Li Zhuang's case can be handled by Jiangbei District Public Security Bureau, Procuratorate and court, then Xu Lijun is suspected of perjury. Who will be responsible? If Xu Lijun is under the jurisdiction of Shanghai, is it under the jurisdiction of Shanghai? Has Chongqing Public Security Bureau handed over the criminal clues?
Fourth, the fact that other procedures are seriously illegal.
In this case, Zhuang Li was sentenced on February 9, 20 10, and was sent to Nanchuan prison the next day. After completing the formalities, he returned to Chongqing No.2 Detention Center. According to the laws of our country, 1 year or more should be sent to prison. In this case, Li Zhuang actually served his sentence in Chongqing No.2 Detention Center. According to the case file, the public security organs did not have any investigation materials before 20 10. In fact, Li Zhuang was forcibly transferred from the prison where he should serve his sentence to the detention center, depriving him of the right to serve his sentence in a relatively relaxed prison. This is a serious violation of the law.
The investigation period is too long and illegal.
The investigation period of this case lasted for more than one year, and no legal documents were legally extended. Jiangbei District Public Security Bureau has seriously violated the time limit stipulated in the Criminal Procedure Law. As a legal supervision organ, the procuratorate has no supervision over this. What is the function of legal supervision?
During the investigation, he was deprived of the right to hire a lawyer.
During the investigation of more than one year, Li Zhuang did not have the right to get legal help from a lawyer. In the file, there are only interviews suspected of contract fraud. In this case, Li Zhuang does not have the legal right to hire a lawyer during the investigation. Did the procuratorate supervise such violations?
This case is tried in disguise and not in public. It seems that more than 100 people came to attend the trial. However, the judge asked his family members to have a certificate from the police station before they could enter. This request has no legal basis at all. Please show me the legal basis. Other citizens who applied for a sit-in were also rejected. In court, from the beginning of the trial, there were only two bailiffs sitting in the first row. Such a trial completely violates the rules of public trial.
On the grounds of violating video evidence, the court refused to accept the video of Zhuang Li and Xu Lijun provided by the defense, so as to refute the transcript of Xu Lijun provided by the prosecution, which involved the so-called Li Zhuang instigating perjury in Zhu Liyan's death penalty case. The video shows that Li Zhuang makes him objective and realistic. In the same transcript, Xu Lijun framed Li Zhuang for perjury in Zhu Liyan's case. It is conceivable that Xu Lijun accused Li Zhuang of perjury in the Meng Ying case. Such evidence refuted the prosecution's evidence, and the court said that it had nothing to do with the case and was obviously illegal.
Conclusion:
A case that had no jurisdiction should be brought to Chongqing for jurisdiction. That's why there are patchwork, sophistry and holes. Defenders don't talk about purpose and motivation. We just emphasize that such investigation, prosecution and trial have no legitimacy at all. Any judgment made by the collegial panel will be misjudged and will be laughed at by history. At the same time, it will also bear corresponding legal responsibilities.
Part two: Li Zhuang did not induce or instigate the witness to change his testimony.
In fact, Li Zhuang did not induce witnesses to change their testimony, and the prosecution evidence of the public prosecution agency was seriously insufficient.
One: The evidence collection procedure in this case is illegal, and the credibility of witnesses is extremely low.
1, the evidence collection procedure is seriously illegal.
The object of investigation is illegal. Because Chongqing Public Security Bureau and Jiangbei Public Security Bureau have no jurisdiction over this case, all the subjects of investigation are illegal. The investigation transcripts made and the evidence taken are all illegal and invalid evidence.
When did the investigation end this case? A lot of evidence was obtained after the public security investigation ended on March 28th, 20 1 1, and some evidence was even obtained at the trial stage. Such evidence has no legal effect. The defender was surprised that the public prosecution dared to take it to court to show it. If so, what is the outcome of the investigation? Is that all you got to say It is surprising that the public prosecutor should say that according to the first paragraph of Article 140 of the Criminal Procedure Law.
Location of investigation In this case, the location of the witness's investigation is mostly in the witness's home, and the hotels, teahouses and defenders where the investigators live wonder why such a powerful investigation agency is so accommodating to the witness. Is it necessary for the witness? Article 97 of China's Criminal Procedure Law clearly stipulates that investigators can question witnesses at their units or residences, and when necessary, they can also notify witnesses to testify at people's procuratorates or public security organs. It is the requirement of the witness that the investigation organ takes evidence in the teahouse and hotel, so can the witness take notes when taking a sauna?
Investigator Li Jun is an investigator, one from Jiangbei Branch and the other from Chongqing Public Security Bureau. Although the public prosecutor said that the case was special and the municipal bureau gave macro guidance, it has gone far beyond the macro level and interfered with the micro level, which is illegal.
2. The credibility of witnesses is extremely low.
Xu Lijun is not a witness, but a principal perjury. If the charges against Li Zhuang are established in this case, Xu Lijun is suspected of publicly perjury when testifying in court, which violates Article 305 of the Criminal Law and constitutes perjury and belongs to the principal offender. The failure to arrest and prosecute Li Zhuang for this crime is obviously a retaliatory law enforcement of malicious law enforcement. The testimony obtained by refusing to prosecute is obviously coerced testimony, untrue testimony and invalid testimony.
The main witness is an immediate family member. In this case, the defendant was accused of obstructing testimony by his defenders, mainly journalists and their families (son Su and mother). This family has obvious interests, and its testimony evidence has limited effect.
Xu Lijun, the main witness and whistleblower in the case of drug abuse and willfulness, spent many years in a drug rehabilitation center, and his testimony in public security, courts and lawyers was repeated many times. He has performed jumping show in Shanghai for many times and jumping show in Shanghai Xuhui Procuratorate. His written testimony today is not credible at all.
Witness Xu Lijun lied. The video evidence provided by the defense shows that in the transcript of this case, Xu Lijun claimed that Li Zhuang provided it as evidence in Zhu Liyan's case, which is totally false. Although the court illegally refused to show it, it still could not cover it up.
Second, Xu Lijun did not invest in Jintang, but borrowed money or similar funds. What he said in court testimony was not false.
The focus of this case is that the indictment accuses Li Zhuang of luring witness Xu Lijun to change his testimony against the facts, saying that the investment amount is a loan. The evidence shows that the so-called 6,543,800 yuan invested by Xu Lijun in Jintang City is really not an investment amount, but a loan.
1, first of all, please find out who this 1 ten thousand yuan belongs to.
The facts accused by the public prosecution agency are unclear.
The indictment of the public prosecution agency accused Xu Lijun of investing 6,543,800 yuan, and Li Zhuang asked him to change his testimony that was not conducive to the facts. Defenders believe that this fact is questionable.
First of all, the civil judgment of the Shanghai Xuhui District Court determined that the ownership of the money belonged to Wang Dewei.
Secondly, the witness record shows that Wang Dewei and Xu Lijun are husband and wife, and there are no marriage registration materials such as marriage certificate and divorce certificate. Marriage is not just about two people saying they are husband and wife. This legal knowledge needs no defense. In this case, the public prosecution alleged that the evidence was insufficient.
2. To take a step back, the 6,543,800 yuan invested by Xu Lijun (Wang Dewei) in Jintang City is really not an investment, but a loan or something else.
Xu Lijun's recorded evidence before accepting Meng Ying's case in Li Zhuang, Xu Lijun's legal adviser, two legal workers from Shanghai Ouyang Law Firm and recorded evidence show that Xu Lijun admitted that this was not an investment, but an oral agreement between an individual and Meng Ling, and it was a loan or something. Zhu Liyan disagreed with her investment in Tang Cheng, and 6,543.8+0,000 yuan was too small. The receipt stamped with the financial seal may have been given privately by Chen Fangying, a financial officer. Anonymous investment between individuals can only be converted into equity even if it requires the consent of other shareholders. Without the consent of other shareholders, the money can only be borrowed or something else, and it has not been converted into investment funds. The determination of legal nature is not determined by confession, but by legal concept and actual form. This case can only be recognized as creditor's rights, not as investment. Xu Lijun's testimony in Shanghai Xuhui District Court on July 30th, 2008 is true.
Wang Dewei recovered 6.5438+700,000 yuan. Li Zhuang accepted money from the Meng Ying case. Wang Dewei has recovered 6,543,800+700,000 yuan from the so-called investment. According to legal common sense, investment is risky and cannot be withdrawn. The only thing that can be refunded is the loan. Therefore, Li Zhuang has more reason to conclude that the money is a loan.
Meng Ying confessed that Meng Ying recognized 6,543,800 yuan as private loan in court. Meng Ying also believed police records, and Xu Lijun and his agreement called the money a private loan.
Kim Tang Cheng denied that it was an investment. According to the civil file of Xuhui Court provided by the defense, most shareholders of Jin Tang Cheng disagreed with it as an investment.
Kim Tang Cheng's lawyer thinks it's a loan. Jin Tang Cheng's civil litigation lawyer thinks that 6,543,800 yuan can be treated as a loan, because it is not an investment, and most shareholders disapprove of Xu Lijun's investment.
Zhou Enqi's testimony provided by the prosecution mentioned Xu Lijun's money, which Zhu Liyan thought was a loan.
Our court decided to reject the request of its shareholders for the civil judgment of Xuhui District People's Court that Wang Dewei (the so-called husband of Xu Lijun) invested RMB 6,543,800 yuan in Tang Cheng, which is not equity capital. The judgment rejected Wang Dewei's request to confirm the names of shareholders and the proportion of their capital contribution to the registered capital, and handle the industrial and commercial registration. In this case, the prosecutor still thinks it is an investment, but he can't answer the defender's question. What is the return on investment? What are the risks? What kind of investment is it? The defender repeatedly asked the prosecutor how much money you had deposited in the bank. Is there any investment risk? The prosecutor has not answered so far.
The loan agreement is strong evidence. 15 On the day before testifying in Xu Lijun, Xu Lijun and Meng Ying's family signed a repayment agreement, which fully proved the nature of the money between Xu Lijun and Meng Ling. What is the basis of the indictment accusing Xu Lijun of violating the facts? Even if this agreement is reached with the support of Li Zhuang, Li Zhuang has no ability to force all parties. Instead of dissolving this agreement, she asked Meng Jia for money according to this agreement, indicating that she respected this repayment agreement.
According to the current judicial interpretation of the Supreme Court, the true nature of 6,543,800 yuan can be understood as both the trust relationship between Xu Lijun and Meng Ying and the loan legal relationship to be transformed before 50% shareholders agree. When testifying in court, the shareholders of Jin Tang Cheng still disagreed and could never agree to be shareholders. Therefore, the sum of 6,543,800 yuan can only be a legal relationship between Meng Ying and Xu Lijun, not an investment. Later, the two sides signed a repayment agreement and determined the nature of the money as a loan.
Thirdly, Li Zhuang did not induce the witness to change his testimony.
Li Zhuang's Subjective Judgment When Zhuang Li wanted to provide witnesses to appear in Xuhui Court, he had these evidence materials at hand. Lawyers can only rely on their own legal knowledge and grasp the facts. Therefore, Li Zhuang, as a legal person, considers the money as a loan, which is in line with his cognitive facts.
The evidence against He Su is insufficient to prove that he changed his testimony knowing it was an investment.
First of all, Li Zhuang himself denies that he induced or instigated it, but he always says that Xu Lijun was asked to do so. Moreover, the court's previous analysis of the nature of 6,543,800 yuan was completely carried out in accordance with the law.
Secondly, Xu Lijun has been taking drugs for many years and has been to drug rehabilitation centers many times. Every time the police ask her if she's sober, it's like asking a drunk if she's drunk. She must say she's not drunk. Such a question is no joke. Let investigators ask mental patients in mental hospitals. They must also think they are normal. Xu Lijun's failure to appear in court today speaks for itself. Whether you are mentally normal or not and whether you can be a witness should be questioned by both sides in court. Just as the defender answered the prosecutor in the cross-examination stage, the prosecutor thought that if Xu Lijun was in a bad mental state, why did Li Zhuang let her testify? Li Zhuang asked Xu Lijun to appear in court for questioning about his mental state. Li Zhuang did it. Do the current prosecutors dare?
Third, our testimony is not credible. Sue: Yes, son. At a dinner a few years ago, it was unreasonable to remember the details of where to sit. Moreover, Sue said only a few words, "I've only heard a few words. What I can remember very clearly now is to reassure my mother that Huang said that the money she invested was lent. " I can't remember anything else clearly, so it is extremely unreliable to remember witnesses selectively.
Fourthly, the testimony of Xu Lijun's mother, Yang Sheng Mei, is only hearsay evidence, and the evidence was obtained in her bedroom, which made the defender an eye-opener. An old lady in her seventies often perjures herself and speaks French, which is amazing.
Fifth, the evidence obtained by the public security organs after investigation completely violates the provisions of the Criminal Procedure Law, and the court can never accept such evidence.
Article 129 of China's criminal procedure law stipulates that "if the facts of the crime are clear and the evidence is really sufficient, the public security organ shall write a prosecution opinion and transfer it to the people's procuratorate at the same level for examination and decision".
First of all, there is no prosecution opinion in the file. Should the procuratorate supervise according to law if it does not provide prosecution opinions?
Secondly, since the facts are clear and the evidence is indeed sufficient, why should we continue to investigate and collect evidence? Conversely, does it just prove that your facts are unclear and your evidence is insufficient?
The investigation power of the third public security organ is gone after the investigation. Why are you still investigating at the stage of prosecution and even trial? If this kind of evidence can be accepted by the court, can the public security organs continue to collect evidence after the trial?
Sixthly, most importantly, according to the Supreme People's Court's Circular No.20 (Fa Fa No.20 20 10/0): "For handling other criminal cases, refer to the Provisions on Several Issues Concerning the Examination and Judgment of Evidence in Handling Death Penalty Cases (Provisions on the Next Evidence in Death Penalty Cases)". Article 15 of the Provisions on Evidence of Death Penalty Cases stipulates that "in any of the following circumstances, the people's court shall notify the witness to testify in court; If the written testimony of a witness who has been notified not to testify in court according to law cannot be confirmed by cross-examination, it cannot be used as the basis for finalizing the case: (1) the people's procuratorate, the defendant and his defenders have objections to the testimony of the witness, which has a significant impact on conviction and sentencing "; Before the trial, the defender objected to the testimony of the witness and asked the court to inform the witness to appear in court. The witness is not in court now. The above evidence should not be used as evidence for final decision.
Seventh, the public security organs have obvious induced behavior.
For example, 2065438+01March 24th, Gui and Wen, page 2, without a source, asked directly: Did you hear the instruction to call the investment money a loan? If it is normal, you should ask, what did you hear Zhuang Li and Xu Lijun say?
On the same page: The investigator asked Li Zhuang whether he instigated Xu Lijun to say that the money invested was a loan. How did he teach it? This confession is very explicit.
If the main witness, Su, who did not appear in court is excluded according to law, there is no other strong evidence. According to witness Ares Wang, Li Zhuang talked with Xu Lijun, and Xu Lijun mentioned the money she invested in Jintang. Li Zhuang used legal provisions to tell Xu Lijun what is a loan and what is an investment, but I can't say the specific content. Then, Li Zhuang said something to Xu Lijun, meaning that Xu Lijun should say the money was a loan.
Judging from this testimony, Li Zhuang is actually analyzing the legal nature of Xu Lijun's investment, which is consistent with the judgment of Xuhui Court, the lawyer's opinion of Jin Tang Cheng and Xu Lijun's recording. If this is true, then such legal analysis is completely legal. The above evidence fully shows that the investment nature of Xu Lijun (Wang Dewei) in Jin Tang Cheng is definitely not a simple investment. Judging from all the evidence, it is a creditor's right to be converted, and it is only a loan or similar loan creditor's right before it is confirmed by other shareholders. Xu Lijun's testimony in court is in line with the facts. No matter what Li Zhuang says, it does not constitute a crime of obstruction of testimony.
The presiding judge and judge:
All of you sitting in court, wearing national emblems, robes and mallets, need legal authorization to exercise the rights conferred by law. Without the authorization of procedural law, today's trial will be very difficult. Defenders, judges and prosecutors, as legal persons, should respect legal procedures as much as they cherish their professional reputation, and carefully judge whether they have jurisdiction, whether the time and place of investigation and evidence collection conform to the Criminal Procedure Law, whether it is overdue, whether the comprehensive evidence is clear and whether the evidence is conclusive. Only in this way, step by step, interlocking, logical, the conclusion will win everyone's respect, which is also the essence of the rule of law. If you do the opposite, the judgment you get will only bring shame.
Today's trial is so remarkable, not because the defendant is Li Zhuang, but because Li Zhuang is just a stubborn ordinary person. This case has attracted people's attention only because Li Zhuang is a practicing lawyer. This profession should have protected the legitimate rights and interests of criminal suspects. Lawyers are not the opposite of the state dictatorship machine, just to ensure that citizens are protected by law in front of the state machine. After all, the public prosecution law may not be all right, otherwise there is no need to formulate a state compensation law. This kind of innocence was convicted in the course of performing his duties. This is a double injury, just like beating and detaining a doctor who is seeing a doctor. Because, at the same time, defending yourself is the right of any citizen's lawyer. Today's Li Zhuang case is a double injury, so it makes people more sympathetic and worried about whether the suspects in China can get real help from lawyers.
A lawyer was charged with 306 counts for the first time when defending a death row prisoner, which attracted people's attention. Today, he was tried in the same place for the same crime, but the content of the trial was what he did in Shanghai. The procedural injustice alone can already be said to be a wave of Jialing, and it is difficult to eliminate all evils. It is difficult to write a book about it. After that, I am afraid that no matter how the entity judges and how the words are framed, it is extremely sinful and difficult to cover the sky.
Finally, parrot-like, learn the warning education of prosecutors. For Zhuang Li, the biggest lesson is that in such a sinister criminal defense environment in China, you still dare to submit dozens of innocent evidence, even dare to apply for witnesses to appear in court, and even dare to challenge the authority. You won the respect of the condemned Zhu Liyan and his mother. Then, you walked all night and finally saw a ghost. You were imprisoned and your relatives couldn't see it. This is the most important thing to learn. Sadly, it is impossible for Li Zhuang to learn his lesson and become a lawyer again. Only other criminal defense lawyers can learn their own lessons. The crime and non-crime of the parties are second, and the lawyer's own safety is the first. Is a fool like Li Zhuang worth committing another crime?
Talking about the particularity of the Li Zhuang case from the perspective of the public prosecution population, and many illegal points in the jurisdiction and procedure of this case, the defender and Li Zhuang have long anticipated the result of this case and will be guilty, and they do not expect miracles. In the face of this verdict, it seems that the defender can do nothing, and then, in the face of historical trial, no one can escape. Those who break the law will be severely punished by the law. If heaven is sunny, Li Zhuang will have a sunny day. This sentence is for Zhuang Li and all legal persons. Although justice is not present, we can wait!
thank you
Shanghai Dabang lawyer office
Lawyer: Jiang Wei.
2011April 20th