Photos pr
Photos provided by Lin Shuming interviewees.
On February 28th, 65438, Lin Shuming, a retired teacher from Xiuyan County, Anshan City, Liaoning Province, told this newspaper that he and his younger brother Lin Shumin had appealed against the retrial judgment.
65438+February 65438+May, Xiuyan County Court made a judgment: The court found that he and Lin Shumin still constituted the crime of provoking trouble, but did not constitute the crime of false litigation. The two brothers were sentenced to three years and three and a half years' imprisonment respectively. The result of this judgment is the same as that of the original first instance judgment of Xiuyan County Court.
According to the retrial judgment, regarding the application of the law, Xiuyan County Court held that although Lin Shuming and Lin Shumin forced the victim to resume the interest increase, it did not constitute false litigation's crime, but it did not belong to the "neighborhood-debt" dispute as stipulated in Article 1 of the Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of affray, and the facts involved could not be identified as ordinary neighborhood disputes and debt disputes.
Lin Shuming and Lin Shumin were arrested in February 20 19, and it has been three years since then. The case has also experienced many twists and turns: Xiuyan County Procuratorate accused the two men of making trouble, and then charged them with false litigation. Xiuyan County Court made a first-instance judgment on 200211and sentenced him to three years and three and a half years' imprisonment respectively. After the verdict was pronounced, Xiuyan County Procuratorate held that the criminal facts of the two men, false litigation, should be recognized and protested to Anshan City Procuratorate. Lin Shuming and Lin Shumin also appealed. Anshan City Procuratorate considered that Xiuyan County Procuratorate protested improperly and applied to Anshan Intermediate People's Court to withdraw the protest. The Intermediate People's Court of Anshan City made a ruling in August 2022, allowing the Anshan City Procuratorate to withdraw its protest, arguing that the facts of the case were unclear, revoking the judgment of first instance and sending it back to Xiuyan County Court for retrial.
Now, Lin Shuming has been released from prison. The appeal of the two also means that the case is still inconclusive.
After the brothers appealed, the case was sent back for retrial.
The newspaper had previously reported that all four children of Lin Zhongheng (deceased), an old doctor in Xiuyan County, Liaoning Province, were involved in criminal cases in the process of collecting debts for their father. Lin Zhongheng's eldest daughter, Lin Shuqing, and her fourth daughter, Lin Ying, were accused of being arrested by false litigation and later acquitted by Xiuyan County Court. Lin Shuming, the second son, and Lin Shumin, the third son, were sentenced to three years' and three and a half years' imprisonment by Xiuyan County Court for the crime of stirring up trouble.
The Lin Shuming brothers thought they were innocent and appealed. According to the ruling made by Anshan Intermediate People's Court on August 2, 2022, the situation of Anshan Procuratorate's appearance in court was as follows: the original judgment found that Lin Shumin led the debt collectors to collect debts with insufficient evidence; The fact that Lin Shuming committed a crime was unclear in the original judgment; The judgment of the original trial only based on the victim's statement, without other evidence, and the victim's statement was contradictory or unstable; Lin Zhongheng did have a creditor-debtor relationship with the victim, and the original judgment should clearly state whether the case is applicable to the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Applicable Law in Handling Criminal Cases of affray. In summary, it is suggested that the court send the case back for retrial. Anshan Intermediate People's Court held that the facts of the original judgment were unclear, and the first-instance judgment was revoked and sent back to Xiuyan County Court for retrial.
On June 8, 2022 165438+ 10/KLOC-0, the Xiuyan County Court held a hearing on the case that the prosecution accused the two of committing the crime of stirring up trouble. During the trial, the public prosecutor made it clear that part of false litigation would not be prosecuted, and an application to withdraw the prosecution would be submitted after the trial. Houxiu County Procuratorate insisted on prosecuting false litigation. On February 8th, 65438+, Xiuyan County Court held another hearing to hear the case of the prosecution accusing false litigation.
Retrial judgment: The facts involved in this case cannot be regarded as ordinary neighborhood disputes or debt disputes.
65438+February 65438+May, Xiuyan County Court made a retrial judgment.
The retrial judgment shows that the case was returned for supplementary investigation once during the retrial.
With regard to the part where the public prosecution accused the criminals of making troubles, the court held that the evidence provided by the public prosecution could form a complete chain of evidence, proving that Lin Shuming and Lin Shumin abused and threatened others in collusion with others, and the circumstances were bad and serious. His behavior constitutes a crime of stirring up trouble and is a joint crime. The facts and charges accused by the public prosecution agency were established and the court supported them. Among them, although Lin Shuming argued that his wife was ill and had been breastfeeding in Changchun or Beijing from April to June of 20 14, there was no time to commit crimes, the evidence provided by the public prosecution agency could prove that Lin Shuming had time to commit crimes and committed the criminal acts alleged in the indictment.
Regarding the application of the law, the court held that the evidence in this case can prove that Lin Zhong's usury to an unspecified number of people and charging "beheading interest" have typical characteristics of "routine loan". Although Lin Shuming and Lin Shumin forced the victim to refinance and add interest, it did not constitute the crime of false litigation. However, it is not a "neighborhood-debt" dispute as stipulated in Article 1 of the Supreme People's Court and the Supreme People's Procuratorate's Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Picking up Trouble. The facts involved in this case cannot be identified as ordinary neighborhood disputes and debt disputes, so this defense opinion of the defender is not adopted.
With regard to the part where the public prosecutor accused false litigation of committing a crime, the court held that the four brothers and sisters Lin Shuming brought a civil lawsuit to the people's court based on their father's will and IOUs, which did not belong to the situation of "bringing a civil lawsuit with fabricated facts" and did not meet the objective elements of false litigation's crime. In this case, false litigation's criminal facts are unclear and the evidence is insufficient, so it is impossible to determine that the two defendants constitute the crime of false litigation. The public prosecutor accused Lin Shuming and Lin Shumin of committing the crime of false litigation and refused to support them.
Xiuyan County Court sentenced Lin Shuming to three years in prison for the crime of seeking trouble. Lin Shumin committed the crime of stirring up trouble and was sentenced to three and a half years' imprisonment.
The defender said that the court violated the procedure in the process of hearing the case.
Lin Shuming and Lin Shumin refused to accept the retrial judgment and appealed to Anshan Intermediate People's Court again.
Lin Shuming's defender, Sun Dawei, believes that the Criminal Procedure Law stipulates that during the court hearing, if "the prosecutor finds that the public prosecution case needs supplementary investigation and puts forward suggestions", which affects the trial, the trial can be postponed. He said that in the process of hearing cases, the people's courts should try them according to the existing evidence materials. If the procurator considers it necessary to make supplementary investigation, he shall make suggestions, and the people's court shall decide whether to approve the supplementary investigation by the people's procuratorate. There are no relevant suggestions and other materials put forward by the prosecution in the evidence, and there is no legal basis for Xiuyan County Court to voluntarily return the case to Xiuyan County Procuratorate for supplementary investigation.
Sun Dawei said that Jiang Nan, the clerk of this case, participated in the civil case of Lin Shuming and others and the trial record of the original trial of this case. After the case was sent back for retrial, he participated in the trial record again, which obviously violated the legal provisions of withdrawal; During the trial of a case, a number of evidences were used as the basis for deciding the case without proof and cross-examination.
Regarding the facts, Sun Dawei believes that this case is a retrial case. Both Anshan Intermediate People's Court and Anshan Procuratorate believe that there are problems in this case. The ruling made by Anshan Intermediate People's Court also clearly recorded the problems that Anshan Procuratorate thought should be ascertained in this case, but Xiuyan County Court did not ascertain them during the retrial. Based on whether Lin Shuming committed a crime, the conclusion of the case description issued by Xiuyan police shows: "In summary, combining the victim's statement and Lin Shuming's confession, Lin Shuming's time of committing a crime cannot be ruled out." Sun Dawei said that the investigation conclusion of the public security organs only "can't rule out the time when Lin Shuming committed the crime", instead of having sufficient evidence to prove that Lin Shuming had the time to commit the crime. Criminal cases require that the evidence is true and sufficient. In addition, the two price confirmation letters issued by Xiuyan Price Confirmation Center have no factual basis for the price confirmation of the sheep involved. The sheep involved in this case is lost, and all the evidence materials in this case can't prove the breed, weight, age and identification benchmark date of the sheep. Two price confirmation letters about sheep are suspected of fraud.
Regarding the application of the law, Lin Shumin's defender Zhang Xinyu believes that there is insufficient evidence to prove that the loan relationship between the defendant and the so-called "victim" is usury. This debt was lent to the "victim" by the defendant's late father. None of the defendants participated in this case, and the defendants were not fully aware of the interests. Moreover, the defendant has always claimed his rights through civil litigation, and the court has not determined that the interest rate is higher than the legal interest rate in civil litigation, and sentenced the "victim" to bear the repayment obligation. In this case, it is unreasonable to identify the debt between the defendant and the "victim" in this case as usury.
Zhang Xinyu believes that even if the debts of both parties are usury, usury is still a kind of private lending in essence, but the part above the statutory interest rate is not protected by law. In this case, at least several so-called "victims" failed to repay the principal in full, and the defendant's right to demand repayment of the principal should also be protected by law. In the case that the defendant has the right to recover the debt from the "victim", there is no substantial difference between the relationship between the two parties and ordinary private lending, and the provisions of judicial interpretation should still be applied to determine that the defendant does not constitute the crime of stirring up trouble.
Extended reading:
A judge in Chengdu said in court that the lawyer had been suspended for talking too fast like "farting". "If you don't write it down, you are equivalent to farting!" "You saw our screen and said, slow down!" The scene in which this sentence appeared was at a trial in the People's Court of Xindu District, Chengdu.
According to China Trial Public Network, in a labor dispute case held on February 20th of 10, Judge Zhou interrupted the statement of the plaintiff and his lawyer, saying that "you talk like fart" and his tone revealed impatience. Shortly thereafter, Judge Zhou repeatedly interrupted the lawyer's speech. "Slow down! I haven't written it down yet I interrupt you at any time. I am so angry! " Mr. Lai, the plaintiff in this case, thought that there was something wrong with the judge's attitude and work style, so he posted the matter on the Internet and told his own story.
Net exposure video screenshot
This matter caused a heated discussion. Some netizens believe that the judge's speech at the trial should conform to the norms, and the language such as "fart" is too vulgar.
12 On February 22, Mr. Lai told the cover journalist that the court staff called him to apologize these two days and told Judge Zhou that he had been suspended. "My original intention was to supervise and improve the work style and attitude of court staff, but now this result is not what I want to see, and I have forgiven it."
The judge called the plaintiff talking like "fart"
Plaintiff: The impatience of the trial that day seemed to be swearing.
The trial record of that day showed that in the trial of case (2022) Chuan 0 1 14 Early Republic of China 1 1583, the lawyer of the plaintiff Mr. Lai was presenting opinions and evidence, and Judge Zhou said to the lawyer of the plaintiff, "You are equal to farting". "Look at our screen and say it, but our clerk didn't write it down!"
Later, Judge Zhou repeatedly interrupted the plaintiff's speech and added: "Look at the screen and speak slowly. I haven't written it down yet, it's annoying! "
Mr Lai, the plaintiff in this case, expressed his "dissatisfaction" through Weibo. He said that he was surprised to hear Judge Zhou's statement and felt that the judge was too disrespectful. How could he interrupt the lawyer like this? "She is a judge, a public official, and she is wearing the national emblem. She should be rigorous and decent when she speaks and does things. "
Another live video shows that when Mr. Lai told me the specific year and date of his employment because it happened to be his daughter's birthday, Judge Zhou directly said: "Your daughter's birthday is none of my business. You told me this? "
Lawyer Lai bluntly said that during the court hearing on the morning and afternoon of February 20, 65438, Judge Zhou showed impatience and repeatedly interrupted him and his lawyer, saying that his speech was like "fart". Mr. Lai believes that as a judge, it is ok to interrupt a lawyer or a client, but rude words, such as "farting", are just like insulting and swearing.
65438+February 2 1, the relevant staff of Xindu District People's Court responded to the media interview and said that Mr. Lai's complaint had been received and the court would intervene in the investigation.
On February 22nd, 65438, Weibo, the official court of Chengdu Xindu District, issued a briefing.
The defendant judge was once rated as one of the top ten "most beautiful judges" in the court.
Plaintiff: The court has apologized and I understand.
The reporter noted that Judge Zhou was once named as one of the top ten "most beautiful judges" and "three outstanding works" of Xindu Court. On1October 28th this year, 10, some parties complained about Judge Zhou's working attitude through the online platform, and pointed out in the complaint letter that when submitting the evidence, Judge Zhou claimed that the font of the evidence was too small, and the parties had doubts. "I said I can see, you can't see?" She said she just couldn't see it anyway. "
According to the Basic Code of Professional Ethics for Judges in People's Republic of China (PRC) and the Code of Conduct for Judges, court staff should avoid being overbearing, blunt and rude, and it is forbidden to use language that hurts people's feelings and may intensify contradictions, so as to prevent improper use of language from adversely affecting judicial credibility.
12 On February 22nd, Mr. Lai told the cover journalist that after he posted the story online, the court staff contacted him and apologized. During the call, the court staff told him that Judge Zhou had been suspended. In this regard, Mr. Lai also expressed regret. He said that his original intention was not to suspend the judge, but to standardize the words and deeds of the judge during the trial. "The judge can't be so rude. Although I am an ordinary person, I also know the truth of Corporal Lixian. "
Mr. Lai said that he had no personal enmity with Judge Zhou, but only handled the case on the day of the court session. Now, the court has apologized, and he is willing to understand. I hope this matter will not make a big deal, and I hope more court staff can improve their work style and attitude.