defend
The presiding judge and judge:
According to the provisions of the Criminal Procedure Law, I am entrusted by the defendant's family and 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 the defendant many times, listened to the court investigation just now, and cross-examined the evidence. The following defense opinions are put forward on the criminal facts alleged in the indictment.
1. The public prosecution 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 hijacking others or using violence, coercion or other methods to take others hostage 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. According to the case file materials and the confessions and mutual identification of the defendants who appeared in court, it can be known that before taking the victims to Brunei. The defendant Gai repeatedly asked the defendant to discuss how to teach the victim Liu Wei, and did not mention the kidnapping. When the defendant promised the defendant Gai to teach the victim a lesson, he found Long Wande and told him that "a friend in Jining needs to teach a person because of business, and Gai will give money after the lesson", but he did not tell Long Wande to kidnap the victim and then ask his family for money. On February 6, 2003 1, the defendant Zhang Yanhong and others took the victim to Wenshang for custody. At 7 o'clock that day, the defendant Long Wande left the place where the victim was detained because of something. On the same day, the defendant Gai went to Wenshang. After arriving in Wenshang, he did not pay the defendant according to the amount agreed in advance, which caused dissatisfaction with Gai. Therefore, in this case, Zhang Yanhong came up with the idea of asking the victim's family for money, which is also a key link in the case from illegal detention to kidnapping. Later, under the planning of the organization, the defendants Zhu and Wu forced the victim Liu Wei to call his family and lied that he urgently needed 654.38+10,000 yuan to purchase goods in Jinan. When the victim's family remitted 80,000 yuan to the designated account, the defendant sent the defendant Wu and others to retrieve the stolen money from Yanzhou and Liangshan twice, and then the defendant divided the stolen money. This fact was accused by the co-defendants, including Wu, Xu and others. Because the defendant Long Wande left the scene where the victim was detained, he didn't know that the defendant Zhang Yanhong and others demanded money from the victim's relatives, so there was no subjective intention to kidnap the victim Liu Wei.
Secondly, the defendant Long Wande objectively did not commit the crime of kidnapping. The victim, Liu Wei, was taken to Wenshang for custody at about 1 on the morning of February 6, 2003, and the defendant, Long Wande, left at about 7: 00 that morning, and never participated in the case again. Then, in this case, the illegal detention was converted into the crime of kidnapping, and the defendant Long Wande withdrew before it was converted into the crime of kidnapping, not to mention the crime of kidnapping.
Once again, the defendant Long Wande got 4000 yuan. On February 8, 2003, 65438, he received 50,000 yuan from Gai and divided the stolen money. Because the defendant Long Wande was not at the scene, he called Long Wande to ask Wu for money, and Wu did not tell Long Wande how they asked the victim's family for money when they took the money. In addition, according to Wu's account, the money distributed this time was given by Gai Lian Yue, that is, before committing the crime, Long Wande was told to bring Liu Wei from Jining to Wenshang to give Gai Lian Yue money, instead of asking for money from Liu Wei's family. Therefore, the defendant Long Wande's income of 4,000 yuan should not be regarded 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 prosecutor's prosecution of the defendant Long Wande for kidnapping lacks factual basis.
Second, the defendant Long Wande's behavior has constituted the crime of illegal detention, and he should be investigated for criminal responsibility for the crime of illegal detention 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.
. Judging from the confessions of the defendant and others in this case, they took the victim to custody in Wenshang at the request of the defendant Gai, with the aim of teaching the victim a lesson and then Gai paid the money to others. When people took the victim to Wenshang, they had the idea of asking the victim's family for money because Gai failed to pay in time. This fact can also be confirmed by the confessions of Wu and Zhu. Therefore, the defendant Long Wande subjectively intentionally deprived others of their personal freedom, knowing that the defendant Zhang Yanhong instructed him to go to Jining to detain the victim Liu Weibang in Wenshang, and 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.
3. Defendant Long Wande committed a minor crime and was less subjective and vicious.
65438+On February 6, 2003, on the morning of June 6, 2003, the defendants Zhang Yanhong, 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, Liu Wei, the victim, was tricked into getting on the bus, and Wu and others tied the victim's hands with tape and took them to Wen Shang in the middle of the back row of the car. During the victim's detention, the defendant Long Wande left at about 1 that morning, and has not participated in this case since then, so the defendant Long Wande's involvement in the crime was relatively minor.
4. Defendant Long Wande was able to truthfully confess his crimes after being brought to justice, and actively reflected on his crimes 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 should give the defendant Long Wande a lighter punishment.
—————————— For reference.