An analysis of the charges of Yang Xuehong, a professional criminal lawyer in Taizhou
In recent years, some cases have aroused great concern of China people, such as Xu Ting case and Liang Li case. These cases all involved bungee jumping, ranging from life to innocence (Liang Li) or misdemeanor (Xu Ting). The focus of people's hot discussion is nothing more than several aspects:
Crime and non-crime
People keep asking, why do government officials audited by the National Audit Office love to develop the personal economy, and make billions or even billions of national financial money, that is, the money of all the people, become problem funds, many of which are leaked without being investigated, but cling to the weak Xu Ting and Liang Li?
People are still asking, from indefinite to innocence and misdemeanor, what is the legal basis for such ups and downs? Neither case is complicated, and the facts are clear. The problem is how to determine the nature and what crime should be determined according to the law. Some modern western principles of the rule of law, especially the principles of criminal law, have entered China. The direct performance is to enter the specific provisions of the criminal law. Both the Criminal Law and the Criminal Procedure Law have corresponding explicit provisions, such as a legally prescribed punishment for a crime, no explicit stipulation that it is not a crime, and the modesty of criminal law.
The question is, why do some people who claim to know the law, or officials who hold the power of people's life and death, fail to abide by the law, convict inferior people who should not be convicted without authorization or sentence them to felony, and at the same time let those thieves who fish people get away with it? What is even more unacceptable is that some people who call themselves legal experts or experts, such as writers, put aside the principles and spirit clearly stipulated by national laws when commenting on the punishment of these lower classes?
This crime and that crime
In these cases, some people's thinking mode is to be guilty first, and then find out what crime they have committed. This mode of thinking is a typical presumption of guilt. It doesn't matter. It is completely understandable to do so in the investigation stage, because investigation is the process of verifying doubts. Have a hypothesis first, and then find new clues according to the existing clues. But this can't be the case at the stage of prosecution and trial. At this time, the thinking mode of thinking about law should be presumption of innocence. When a case is sent down, we must first find its flaws. If the investigation organ can find new evidence through supplementary investigation, it will prosecute and make a guilty verdict. No new evidence can be found, that is, there is no reasonable and legal explanation for the suspicious place, and the suspect is released unconditionally.
Theft, corruption and unjust enrichment
These two charges, whether in the provisions of criminal law or in the textbooks of college criminal law, are not a problem and cannot be confused. Why is it not clear in judicial practice? For example, both the Xu Ting case and the Liang Li case are controversial.
In addition, some people extend the dispute of embezzlement crime to unjust enrichment in civil law. In fact, the provisions of unjust enrichment in civil law are also clear and cannot be confused at will.
People like to use the four elements of crime to analyze cases, especially Xu Ting case and Liang Li case. Here, we will omit the similarities between * * * and just say its main points.
Compared with the crime of embezzlement, the key point of theft is to take secret measures to transfer the property from the owner's control to his own control. If "taking" in public is robbery, if "taking" by violence in public is robbery. Obviously, the behavior of Xu Ting and Liang Li does not conform to this feature. Moreover, this understanding is first of all the law. Second, there is this explanation in the textbook. Third, the people all over the country have this kind of intuitive perception, which shows that the legislation of theft comes from the masses and goes to the masses.
Compared with theft, the main points of embezzlement crime are: illegal possession, large amount and refusal to return. Many famous experts once thought that Xu Ting and Liang Li met the characteristics of the crime of embezzlement, but they forgot whether Xu Ting and Liang Li would not be returned. Or refusing to return it is a crime of embezzlement If it is not refusing to return, the public security personnel will hand in the property that does not belong to them, and it should not be defined as refusing to return.
Compared with the crime of embezzlement, the main point of unjust enrichment is that there is no legal basis, or after losing the legal basis, it is considered as the benefit obtained by causing losses to others. There is no doubt that Xu Ting and Liang Lidu meet the characteristics of unjust enrichment.
Judicial bungee jumping: from life to innocence and misdemeanor
What is theft is not a theoretical problem or a practical problem in essence.
The biggest problem is that some investigators and some legal experts in the judicial department don't think so, so they speculate that Xu Ting and Liang Li are guilty of theft. Because of this, people have raised many questions about the judicial organs' handling of these two cases, from indefinite to innocence or misdemeanor, which is a surprising leap. Of course, experts also have resistance to the domestic public. They often verbally say that others don't understand the law. In fact, their ideas are far from the law.
Some legal experts believe that the treatment of Xu Ting and Liang Li reflects the gentle side of the law. We simply don't know what to think of the expert who said this. We don't know whether these experts have read the most basic criminal law textbooks. We don't know whether they are speaking as "experts" based on the impressions and feelings in their heads and moral intuition. I want to ask, does it mean that Xu Ting's case has been charged because it can't find a suitable charge? I would like to ask, in the case of Liang Li, the charge of theft is obviously untenable, and the case is very simple. Why was he still detained for nine and a half months? Why do you make a decision not to sue, and still leave a tail to say that it conforms to the characteristics of embezzlement? What kind of thinking is this, presumption of guilt or presumption of innocence? It can be said that it is neither a presumption of guilt nor a presumption of innocence, but a "guilty verdict".
There are experts, because they are experts, so speaking is "truth". The voice of the speech is loud, but it is irresponsible, and it is nonsense and arbitrary definition. However, there are dozens of opinions in a case, and there is only one truth at most. Therefore, some experts confuse robbery with robbery, robbery with theft, theft with embezzlement, embezzlement with unjust enrichment in civil law.
In Xu Ting case and Liang Li case, both cases were from indefinite to innocent or misdemeanor, which was a big judicial bungee jumping.
Which one is right?
Is Xu Ting's life judgment right or innocent? If Xu Ting is convicted of stealing financial institutions, life imprisonment is correct. At this point, don't embarrass the case handlers, and don't give the law warmth. Just judge and judge directly according to the provisions of the law. The problem is that an inappropriate legal basis was found when the judgment was made.
Liang Li, is life right or innocence right? If the theft is established, it will be indefinite, and there is no suspense. Ordinary people should not expect the warmth of the law, and the lower class without social status can only get heavier punishment. Theft is not established. Why have you been detained for so long? Who broke the law at this time?
Therefore, in these cases, it is ultimately the people of the whole country who make up lessons for experts. I hope the experts really don't stop knowing the law and talk nonsense with the laurels of experts.
These cases were made public, which made our public question the handling ability, legal level and ideological consciousness of experts and judicial organs.
The dispute between theft and embezzlement
This is both unnecessary and necessary.
The controversy about robbery, robbery, theft, embezzlement and unjust enrichment is superfluous, because its legal provisions are very clear and the definitions in textbooks are very clear, and there is nothing incomprehensible. This kind of controversy can only expose many people's lack of knowledge.
On the other hand, this kind of controversy is necessary. It has torn the veil of legal mystery. Ordinary people didn't know the law in the past, and it was only when these issues were controversial that they found that there were so many experts' opinions and expertise. They firmly believe that legal issues should be handled in accordance with the provisions of the law, and putting the incident in the sun will reduce judicial corruption and judicial injustice. On the contrary, experts' attempts to put a veil of mystery on the law were curbed. They no longer dare to come up with some internal regulations, internal procedures and leadership opinions for fear of being bombarded by ordinary people. Their usual practice in the past was not to enforce real laws, but to enforce these internal regulations, internal explanations and leadership intentions. This is China's "judicial practice", which is the dark side of the current judicial situation. In front of all the people, this kind of judicial practice has to give way to direct legal practice.
In short, this dispute has played a role in popularizing the law. Ordinary people just recognize the law directly and intuitively. Moreover, ordinary people are no longer afraid of experts and dare to challenge them with legal provisions. At the same time, it also taught experts a lesson. Experts should never wave the stick of "You don't know the law" to deceive people again.
How to define the crime of embezzlement
What is refusing to return?
What is refusing to return? There is no direct specific provision in criminal law.
In any country, the handling of criminal cases is very cautious, and the prescribed conditions are very strict. We are a socialist country where the people are the masters of the country. Our national concept is a harmonious country in which all the people participate. Its basic meaning is that the people jointly decide major issues. China entrusts judicial power to judicial organs, that is to say, judicial organs have no right to do what they want, but what all the people entrust them to do. Under the current social system and legal framework, the people only ask them to carry out judicial activities according to law and ask them not to cross the border. Cross-border justice is illegal justice.
Therefore, in the cases of Xu Ting and Liang Li, we should follow this line of thinking:
First, the injured person directly finds the person who picked up the property and asks for it. If the finder returns the property, it cannot be regarded as embezzlement, and the damaged person should also thank the finder.
Second, people with property damage directly find the picker to ask for it, but the picker does not give it. The victim shall bring a civil lawsuit and demand the finder to return the unjust enrichment. If the property is recovered and returned after the judgment takes effect, it cannot be considered as embezzlement.
Third, if the injured person sues and gets a judgment, and the finder still refuses to return it, the injured person may apply to the court for enforcement. If the property is successfully found in the process of enforcement, then the victim will no longer have losses and cannot be characterized as embezzlement.
Fourth, if the person who damaged the property sues and obtains a judgment, and refuses to return the property after compulsory execution, it can be considered that the finder has committed the crime of embezzlement.
According to general principles of criminal law, the criminal punishment of criminal suspects must be based on clear facts, conclusive evidence and clear legal provisions. According to the principle of modesty of criminal law, if it can be solved by civil law, try not to use criminal law. If a crime is legally prescribed, it can be given a lighter punishment, but it should not be given a heavier punishment.
Dragon city flying general army
2009-9-27