1. In the criminal judgmentNo. (20 14) 1099, the defender suggested that the right to interpret whether the garbage incinerator in this case belongs to special equipment belongs to the General Administration of Quality Supervision, Inspection and Quarantine, while the special equipment safety supervision department of Fujian Bureau of Quality and Technical Supervision does not have the right to interpret it. The boiler in this case belongs to the "boiler" in the Catalogue of Special Equipment published by the General Administration of Quality Supervision, Inspection and Quarantine.
The appellant Naqiu Company was established in1August, 1997. The legal representative of the company is the appellant Zhou Mojia. Is an enterprise engaged in garbage disposal engineering design, equipment installation and maintenance, scientific and technological new product development and technical consulting services, but the company has not obtained the boiler manufacturing, installation, transformation and maintenance license issued by the quality and technical supervision department.
On July 2nd, 2002, on behalf of Naqiu Company, Zhou Moujia signed a purchase and sale contract with Hong Kong Hongfeng Development Co., Ltd. for two NSL- 100B domestic waste incinerators and their complete sets of equipment for the treatment of domestic waste in shishi city. The company is responsible for the installation, debugging and after-sales service of equipment and systems.
After signing the contract, sodium citrate company sent technicians to the construction site of shishi city Waste Incineration Comprehensive Treatment Plant to guide the equipment installation of waste incinerator. Among them, Beijing Boiler Factory contracted to install the boiler body, superheater, pipes and valves. Sodium citrate company hired an installation team organized by Wang Moujia to participate in the installation of grate transmission system, steel structure and other components, and hired other construction personnel to be responsible for the construction of furnace wall.
Since June 5438+10, 2004, two sets of garbage incinerators have been installed and the materials have been debugged. Faults occurred during trial operation, and the main problems were grate deformation, chain climbing and jamming. After many times of coordination, Hongfeng Company and Actinide Company carried out many times of equipment rectification, but failed to eliminate the fault. By September of the same year, Zhou Mojia had transferred all the technicians of actinide sodium company who participated in the equipment rectification. Because the two sides have different views on the cause of the failure, the content of rectification and the quality of the equipment, Hongfeng Company thinks that the cause of the failure is unreasonable design and the quality of the grate is not up to standard, while Na Company thinks that there is no quality problem in the boiler, and the cause of the failure is that the calorific value of waste and chemical fiber articles is too high, and the workers have not screened the materials according to the operating procedures.
On May 29, 2007, Huang Na Company filed a lawsuit with our hospital on the grounds that Hongfeng Company was in arrears with the contract payment, requesting Hongfeng Company to pay off the contract balance of more than 6.6 million yuan and bear other liabilities for breach of contract. Our court believes that there is a dispute between the original defendant and the defendant due to the contractual relationship, and the equipment provided by the company has quality problems, which leads to the failure to complete the overall acceptance and rectification of the equipment, and should bear the corresponding legal consequences according to law. On October 20th, 2008/KLOC-0, Naqiu was rejected by the civil judgment of Quan Min Zi ChuNo. 149 (2007). After the verdict was pronounced, the company appealed, and the Fujian Higher People's Court ruled that the original judgment was revoked and sent back for retrial. We believe that the relationship between the plaintiff and the defendant is a sales contract, and the quality inspection conclusion has not been obtained through legal procedures in this case, so the quality status of the disputed equipment is unknown. In view of the fact that it has been seven years since the trial operation of the equipment, there is no legal significance for re-appraisal or acceptance now. However, through analysis, it can be seen that the equipment has reached the acceptance index agreed in the contract and has the acceptance conditions, but the defendant refuses to accept it. At the same time, the certificate of shishi city Environmental Sanitation Management Office and the list of garbage disposal fees paid show that the defendant never stopped collecting garbage disposal fees from February 2004 to February 2007, which proves that the defendant continued to use the equipment delivered by the plaintiff at least in 2004 and 2005 and made a profit. Therefore, it is presumed that the payment terms have been reached and the defendant should bear the responsibility for payment. 20 10, 1, with (20 10) Quan Min Zi Chu No.8 civil judgment, Hongfeng Company paid 636 13 10.8 yuan to Nalian Company, and rejected other claims of Nalian Company. After the verdict, both Naqiu Company and Hongfeng Company appealed.
20 10 On February 20th, 10, Hongfeng Company reported to shishi city Public Security Bureau that the two boilers did not meet the relevant industry regulations, and there were serious defects in design, manufacture and installation, so it was impossible to complete the commissioning operation. These are two inferior equipment with serious quality problems, which are unqualified products. On 2011May 17, Zhou Moujia was wanted on the Internet and was arrested by the local police station in Dongcheng District, Beijing, and was prosecuted for producing and selling fake and inferior products. During the trial, the public prosecution agency changed the prosecution and prosecuted Zhou Mojia for the crime of illegal business operation.
In this case, whether Zhou Mojia's behavior constitutes the crime of illegal business operation mainly depends on whether the domestic waste incinerator involved is a special equipment as a whole. If it belongs to special equipment, then Zhou does not have a license to manufacture and install special equipment, and his behavior will constitute the crime of illegal business operation; If it doesn't belong to special equipment, then Zhou Mojia is innocent.
In order to prove that the domestic waste incinerator in this case belongs to special equipment, the public prosecution agency provided a letter issued by the Special Equipment Safety Supervision Department of Fujian Provincial Bureau of Quality and Technical Supervision. The letter asked whether the SLC-100-1.47/280-2 domestic waste incineration boiler belongs to the Provisional Regulations on Safety Supervision of Boilers and Pressure Vessels (implemented in July 1982) and the Regulations on Safety Supervision of Special Equipment (June 65438, 2003).
Subsequently, the Department sent an inquiry reply to the People's Procuratorate of shishi city, proving that the above boiler belongs to the "pressure steam boiler" in the category of "boiler" announced by the General Administration of Quality Supervision, Inspection and Quarantine, and consists of chain grate, feeding system, hopper interface, furnace body, superheater, operating platform and other components as shown in the general drawing.
However, the defender proposed:
1. The right to interpret whether the whole garbage incinerator belongs to special equipment belongs to AQSIQ. However, at present, the General Administration of Quality Supervision, Inspection and Quarantine has not explained this issue, and the technical basis for proving that the whole machine belongs to special equipment is unknown.
2. The opinion issued by the Special Equipment Safety Supervision Department of Fujian Provincial Bureau of Quality and Technical Supervision holds that the boiler in this case belongs to the "pressure steam boiler" in the Catalogue of Special Equipment published by AQSIQ, which is inconsistent with the provisions of the Catalogue of Special Equipment of AQSIQ and the national standards of Domestic Waste Incinerators and Waste Heat Boilers in 2008. The existing evidence can only prove that the waste incineration boiler only involves the waste heat boiler designed, manufactured and installed by Beijing Boiler Factory.
3. The General Administration of Quality Supervision, Inspection and Quarantine published the Catalogue of Special Equipment in June 65438+1October 65438+September 2004. In this catalogue, boilers include pressurized steam boilers, pressurized hot water boilers, organic carrier boilers, boiler parts and boiler materials, but do not directly include domestic waste incinerators or domestic waste incineration boilers. The boiler parts listed in this catalogue only include boiler head, drum, header, boiler superheater, boiler reheater, boiler economizer, etc. (The Catalogue of Special Equipment revised on October 30th, 20 14/KLOC-0 only lists pressure steam boilers, pressure hot water boilers and organic heat carrier boilers, and deletes the original boiler parts and boiler materials.
4. After the national standard of Domestic Waste Incinerator issued by AQSIQ in February 2002 replaced the industrial standard of Domestic Waste Incinerator issued by the Ministry of Construction in 2000, the new national standard of Domestic Waste Incinerator and Waste Heat Boiler was issued in June 2008, which defined the domestic waste incinerator as "a device for incinerating domestic waste" and will
To sum up, the people's court adopted the defender's opinion and found that the installation team hired by the company was not based on special equipment to install the chain grate and other components in the domestic waste incinerator in this case, so Zhou Moujia was acquitted.
2. Defender pointed out in criminal judgmentNo. 103 (20 17) that the basic materials of the appraisal opinions on the illegal business amount in this case came from the inquiries of the US Food and Drug Administration and the Bureau of Industry and Commerce Quality Supervision in Santai County, and the authenticity of these inspection materials could not be guaranteed, so there was doubt about the authenticity of the conclusions of the appraisal opinions. The people's court recognized the defender's opinion and acquitted the defendant Chen Mou Jia.
20 16 1.4 to June 4 of the same year, the appellant Chen Moujia purchased 76 pigs without inspection and quarantine from farmers such as B, C, D, Wang and You Moumou, and the transaction price was 1.6 million yuan. The purchased pigs were slaughtered without authorization in their slaughterhouses and pig products without inspection and quarantine (side mouth, Appraisal by the Development and Reform Bureau of Santai County: from October to June in 2006, the defendant Chen Mou Jia pig product (side mouth) weighed 2 kg1102 kg, and the price was 245,959.40 yuan, making a profit from October to June in 2006.
However, the defender believes that:
This case found that the appellant Chen Mou Jia only had one-sided oral evidence about the number of live pigs he bought and sold, and the basic materials for his appraisal opinions on the illegal business amount came from Santai County and the Bureau of Industry and Commerce Quality Supervision. According to the statistics of Yi Moumou, Liu Mouyi, Wu Moumou, Song Moujia and Liu Moujia, the total weight of live pig products (sideline products) sold by Chen Mou Jia was obtained. Due to the lack of other evidence to prove the authenticity of the submitted materials, it will be used as the basis for identification. Defenders recognized by the people's court believe that the existing evidence in this case can't meet the true and sufficient standard of evidence, and the appellant Chen Mou Jia has insufficient evidence to constitute the crime of illegal business operation, so the charges can't be established.
3. In (20 14) No.5 criminal judgment of Dongsanfa, the defender proposed that the public prosecution agency submitted a trace inspection report, and only identified the gun-shaped articles and parts involved as simulation guns and simulation gun parts according to their appearance characteristics, but did not measure the performance (lethality) of the gun-shaped articles and parts involved, so the authenticity of the appraisal opinion in this case was in doubt, and the people's court recognized the defender's opinion.
Defendant Li Moujia runs Dongguan Biyoudi Sports Equipment Co., Ltd. (hereinafter referred to as Biyoudi Company) in Caole Village, Xiegang Town, Dongguan City, and is the legal representative and actual operator of the company. From February 20 1 1 year to February 20 1 1 year, Li Moujia was entrusted by Hong Kong Fuxing Color Ball Co., Ltd. to produce a large number of suspected gun parts beyond the scope of business, and passed through Dongguan Youtong International Logistics Trading Co., Ltd., and then Li Moujia destroyed the relevant parts. The above sales proceeds were not credited to the account of Biyoudi Company, and all of them were owned by Li Moujia. 201165438+On February 6th, Li Moujia received a phone call from his wife Liu Mouyi and returned to the company for investigation. Subsequently, public security personnel arrested Li Moujia in the company and seized 2 gun-shaped items and a batch of suspected gun parts such as gun caps, single guns and sights (about 98,000 yuan).
During the trial, the public prosecution agency provided a trace inspection report and determined that the relevant parts in this case belonged to simulation gun parts.
However, the defender proposed:
The public prosecution agency submitted the trace inspection report issued by the Judicial Appraisal Center of Dongguan Public Security Bureau. The appraisal opinion only identified the gun-shaped articles and parts involved as simulation guns and simulation gun parts according to their appearance characteristics, but did not measure the performance (lethality) of the gun-shaped articles and parts involved. The existing evidence of the public prosecution agency is insufficient to prove the nature of the gun-shaped articles and parts involved. That is to say, whether the gun-shaped articles and parts involved are guns or simulation guns, and if they are simulation guns, whether they are harmful to people and whether they are obviously different from toy guns, the public prosecution organs have not provided sufficient proof. The burden of proof in criminal cases lies with the public prosecution organ. The existing evidence provided by the public prosecution agency can't make an objective and scientific conclusion about the nature of the gun-shaped articles and parts involved, and can't reach the conviction standard. The people's court recognized the defender's opinion and ruled that the defendant Li Moujia was not guilty according to the principle of no doubt.
Conclusion:
Because expert opinions are professional, defenders often lack professional knowledge in the field of expert opinions. It is difficult to overturn the expert opinion of the judiciary.
But difficulty doesn't mean impossible. After all, expert opinions are made by specific people, and as long as they are people, they will make mistakes; As long as you make a mistake, you may be seen through by the defender.