1 lawyer's defense writing
Dear presiding judge and collegial panel,
Xxxxxx Law Firm Wuhan Branch accepted the special authorization of the applicant Wang in this case according to law, and I (lawyer) acted as its litigation agent to participate in the litigation in our court. Before attending the trial in our hospital, I read the files of the first and second trials of this case in detail, as well as the files and judgments of several cases related to this case. I noticed that the participants in the proceedings, including this trial, have just finished a retrial of a related case, and the presiding judge of this case is also the presiding judge of this case. In this case, our client Wang was sentenced to be jointly and severally liable for debt repayment. Frankly speaking, the client has reason to worry about whether there may be preconceived tendencies in this collegiate bench. However, after listening to our lawyer's introduction to the relevant legal provisions on applying for the withdrawal of judges, our client showed admirable rationality. He decided not to worry about these trivial matters that have no substantive connection with the case, but objectively stated to the court and obtained the court's support for judicial justice with facts and evidence.
In order to assist the court to fully perform the trial function and the lawyer's principal-agent duty, the lawyer will elaborate from three aspects: facts, evidence and legal provisions, and explain to the court that the applicant in this case should not be liable for debt repayment.
1. The facts about this case.
The facts of this case are as follows: the plaintiff (borrower) borrowed money from the defendant (lender) at a high interest rate, and both parties knew that the national interest rate exceeding the bank's loan interest rate for the same period was not protected by law. In order to circumvent the law, the lender (Yang, the legal representative of Jinyu Company, was recognized as the borrower by an effective judgment) adopted the method of recovering high interest first, and then asked the borrower to issue an IOU (principal) after recovering interest, so as to avoid its high loan behavior. At the same time, let's not discuss the legality of high borrowing behavior. For the borrower, there are two debts payable, namely principal and interest, but the debtor in this case tried to default on the account on the basis of knowing the rules of the game. His reason is that the principal he paid has exceeded the interest, and the borrower brings a lawsuit on the grounds that the evidence he has shows that the borrower has not received the repayment or there is no evidence to prove that the loan has been repaid. The court of first instance upheld the borrower's claim. The court (Wuhan Dongxihu District People's Court) ruled that the existing payment evidence in this case was completed by the applicant, but the applicant's payment behavior was not enough to prove that the borrower had paid. The court of first instance further interpreted the law and held that the legal relationship between the payer and the payee should be handled separately, so the plaintiff Zhuo Wei Company demanded the applicant to bear the legal responsibility for returning the unjust enrichment on the grounds of unjust enrichment. So there was this case, which went through the first and second trials. What we are discussing now is the question of retrial, that is to say, whether there is any mistake in the original judgment of this case. Wang, the applicant in this case, is an introducer. One of the two sides of this transaction tried to cover up the illegal purpose (usury) in a legal form, and the other tried to violate the promise of commercial transaction and try to breach the contract. For the sake of money, these two parties ignored business ethics and integrity, and took advantage of loopholes in the form of evidence to blame the legal responsibility on the introducer. This is immoral. If the court supports the plaintiff in this case, it is tantamount to supporting the parties to cover up the illegal purpose in a legal form again.
Second, about the evidence of this case.
(1) The new evidence is sufficient to show that the applicant is not a debtor who has unjustly benefited, because the plaintiff has admitted from beginning to end that he did not actually receive the money, but only signed the financial procedures.
These three pieces of evidence are the written proxy words of the plaintiff's agent in the relevant litigation. The written statement submitted by the plaintiff to the court in this case reflects that these materials were made without the knowledge of the applicant, which indisputably shows that the plaintiff never denied that the applicant had never received the disputed money. Since the plaintiff filed a lawsuit, he kept this fact in mind and asked the court to ask the applicant to carry out "who advocates who gives evidence" in accordance with Chinese laws. As a result, the evidence collected by the unlucky applicant was recognized by the court. According to the rules of evidence, the identification of facts that are not conducive to one party in litigation can be used as evidence. In view of this, lawyers believe that the three pieces of evidence found by consulting the transcripts of relevant litigation files after the trial should be regarded as "new evidence", and on this basis, it is determined that the applicant should not bear the legal responsibility for unjust enrichment in this case.
(2) The original evidence was wrongly identified by the court of first instance, and the "fact identification" on which it was based was naturally wrong.
1. The court of first instance held that the recorded evidence could not be identified and the parties refused to adopt it, so this conclusion was wrong. First of all, in the original trial, it should be recognized that the party who recorded the evidence did not appear in court, but the agent responded. Even if the agent has special authorization, there is a certain difference between the judgment of his client's voice and the determination of the facts. Only the client can clearly recognize his voice. At the same time, the facts that need to be further confirmed in this case, in addition to the above, are more important whether the recording content itself is complete and can reflect the facts. However, the court of first instance concluded that it was against the law for the uncertainty of the agent not to accept such an important fact. For the facts that the parties fail to find out in court, the court can summon them after two legal summonses, which is clearly stipulated in the Civil Procedure Law. We believe that it is the right and obligation of the court to correctly apply judicial procedures, find out the facts according to law and make a fair judgment. On the other hand, the court of first instance held that the recorded evidence could not be accepted as a single evidence without the approval of the parties, and only "doubtful audio-visual materials" could not be used as evidence for ascertaining facts alone, which was a misunderstanding of the law.
At the same time, we would like to remind the court that this evidence clearly proves that all the disputed money was collected by the defendant Wu Mou in the original trial. As for the statement that "Yang Youwei received more than170,000 if he received 600,000 yuan, that is more than 700,000 yuan", if we notice that they are in a mother-child relationship, the plaintiff even gave up the claim against Yang, which is enough to show that they themselves know that this view is only a logical argument.
2. At the same time, the new bank deposit slip we provided to the court shows that the total cash directly deposited into Yang's account is at least 270,000 yuan, not178,000 yuan, which is enough to show that the judgment of the court of first instance should be revised.
Three. On the application of law in this case.
(1) The wrong understanding of the law by the court of first instance led to a wrong judgment.
The cause of this case is an unjust enrichment dispute. According to the law, unjust enrichment means that "if there is no legal basis to obtain improper benefits and cause losses to others, the obtained improper benefits should be returned to the person who suffered losses." That is, there are only two subjects in the legal relationship of unjust enrichment, one is the injured creditor and the other is the debtor who caused the damage. Please note that the damage mentioned here refers to "obtaining improper benefits and causing damage to others", but does not include "causing others to obtain improper benefits and causing damage to others". If it is to be included, then the cause of this case should be an infringement dispute (infringement of property rights), and the agent wants to attract the attention of the court at the same time. In the case of the debt of unjust enrichment, there is no legal provision requiring the third party to bear joint and several liability, and joint and several liability only exists in the debt of infringement. The debt of unjust enrichment as the "special law" of tort debt does not have this provision, and the court should not go beyond the legal obligation to create.
Among the unjust enrichment debts in this case, the creditor is relatively easy to define, and how to define the debtor is the core of the trial. According to the law, only the person who "gains improper benefits and causes damage to others" can be identified correctly. On the one hand, the plaintiff admitted that the applicant (obtained) the money of 600,000 yuan was not handled, and on the other hand, the recorded evidence showed that Wu Mou admitted to receiving the money, so in any case, the debtor in this case could not be identified as the applicant.
The plaintiff has a very simple logic: the court ruled that the money would not be returned to the person who wanted it. Now there is evidence that you (the applicant) received the money, and the court found that you could not prove that you gave it to the right person, so you constituted unjust enrichment. This logic sounds reasonable, but for unjust enrichment, those who don't deserve the money are the defendants of unjust enrichment and the real debtors. The agent has reason to believe that the court of first instance has confused the concepts of unjust enrichment and tort liability.
(2) The applicant is not liable for unjust enrichment in this case, and the plaintiff's claim is rejected in this case.
The plaintiff in this case did take the law as the criterion, but not the facts as the basis. He knew very well that the applicant didn't actually handle the money, but he allowed the court to solemnly ask the defendant to give evidence. At the same time, he has always said in this court that the court's decision is not wrong. On behalf of the client, the lawyer strongly condemned this kind of behavior without business ethics and humanity. A company and its leaders have fallen to this point, allowing innocent people to be unfairly tried when they know the facts.
We noticed that the plaintiff finally determined his claim as asking the applicant to bear the liability for compensation, and others were jointly and severally liable. The agent believes that both the original evidence and the new evidence show that the applicant did not "obtain illegitimate interests", and the hotel also admitted that the applicant Wang did not charge litigation fees. In view of this, Wang should not bear the obligation of returning unjust enrichment, but should bear the responsibility of returning 600 thousand yuan in this case. Further evidence shows that if Jinyu Company actually obtains the money, Jinyu Company shall bear the responsibility of returning it, and Wu Mou shall bear joint liability. At the same time, Yang Moumou is jointly and severally liable within the scope of using the bank card to actually collect money, but the burden of proof should not be borne by Wang, but by the hotel. In view of the fact that the cause of this case is an unjust enrichment dispute, there is no legal basis for asking Wang to bear joint liability, and he should not bear any legal responsibility for unjust enrichment in this case.
At the same time, according to the principle of "don't sue and ignore", because the plaintiff only asks others to bear joint and several liability rather than return responsibility, the claim that "the person who should bear the return responsibility should bear the joint and several liability of the person who should not bear the legal responsibility" lacks legal basis, and this case should make a judgment rejecting all the plaintiff's claims. This result sounds unreasonable, but "the train can only reach the end safely on the track", and the consequences of this lawsuit should be tasted by the plaintiff himself. We regret this, and the plaintiff may have to reflect on his attitude of not keeping business integrity.
This demonstration
Xxxxxxx People's Court
2. Writing of lawyer's statement
Presiding judge:
I accept the entrustment of Xu XX, a close relative of Zhao XX, the victim of this case, as the litigation agent of the first instance in the case of Zhao XX v. Liu XX. After accepting the entrustment, I carried out extensive and necessary investigation and evidence collection activities, carefully read the case file and made sufficient pre-trial preparations. According to the court investigation just conducted, the case of Zhao Xx v. Liu Xx's ill-treatment is clear and the evidence is sufficient and true. In order to further support the prosecution and safeguard the legitimate rights and interests of Zhao Xx, the private prosecutor in this case, we hereby express the following agency opinions to the court:
1. The facts of the crime alleged in this case are clear and the evidence is indeed sufficient.
(Item should state the facts and is omitted here. )
All the above facts are supported by evidence. The evidence has just been submitted to the court.
Two, Liu XX's behavior constitutes the crime of abuse stipulated in the Criminal Law of People's Republic of China (PRC) (hereinafter referred to as the Criminal Law), and shall be investigated for criminal responsibility.
The crime of maltreatment refers to the vicious act of physically and mentally destroying and persecuting family members who live with * * * by means of beating and cursing, starvation, restriction of personal freedom and humiliation. Article 260th of China's Criminal Law stipulates: "Whoever maltreats a family member, if the circumstances are bad, shall be sentenced to fixed-term imprisonment of not more than two years, criminal detention or public surveillance."
In this case, Liu Xx abused Zhao Xx for a long time (up to × years), which caused serious consequences-caused great damage to Zhao Xx's physical and mental health, which was a bad case and should be investigated for criminal responsibility. Moreover, it is unreasonable for Liu Xx to openly despise the country's family planning policy, so he prefers sons to daughters and tortures his wife who does not want to succumb to his wrong will.
To sum up, the defendant Liu Xx's behavior has constituted a crime of abuse, so please ask the people's court to punish him according to law.
Xx lawyer
* * * Year * * Month * * Day
Note: Key points of document production:
1. Introduction. State the legal and factual basis for lawyers to represent litigation, the nature of the case and the trial level.
2. Text. First, describe the defendant's criminal facts and prove them with sufficient and reliable evidence; Secondly, citing the relevant laws and regulations, using the theory of crime constitution and related knowledge to demonstrate the legitimacy and necessity of the defendant's criminal responsibility; Thirdly, analyze the motives and reasons of the defendant's crime from the aspects of behavioral knowledge background and psychology, and explain to the judges and jurors the serious consequences and social harm caused by the defendant's criminal behavior to the victims and society.
3. Conclusions and propositions.