Dear presiding judge and judge,
Entrusted by the close relatives of the defendant Yemou, Heilongjiang Linde Law Firm appointed me as the defender of the defendant Yemou to continue to participate in the second instance proceedings of this case. Based on the facts of this case and in view of the protest of the public prosecution agency, the defender puts forward the following defense opinions on the qualitative issue of this case, and asks the court to consider them. Thank you!
Defenders believe that the criminal judgment of Zi ChuNo. 14 1 of Daqing X District People's Court (20 10)X is correct, and they request the court of second instance to uphold it according to law and reject the protest of the public prosecution agency.
The public prosecution protested that according to Article 1 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Stealing Oil and Gas Equipment and Destroying Oil and Gas Equipment, this case should be characterized as the crime of destroying flammable and combustible equipment. This article reads as follows: in the process of stealing oil and gas, destroying the oil and gas equipment in use by cutting, punching, prying open, disassembling and replacing it belongs to "destroying gas or other things" as stipulated in Article 118 of the Criminal Law. Those who endanger public security and have not caused serious consequences shall be convicted and punished in accordance with the provisions of Article 118 of the Criminal Law.
The prosecutor believes that the oil well is oil and gas equipment, and the defender has no objection; It is believed that the motor is a part of the oil well. In this case, the two defendants stole the motor and destroyed the oil well. The defender has no objection. However, just because the two defendants committed acts of destroying oil and gas equipment, it is obviously not in line with the principle of a legally prescribed punishment for the crime of destroying flammable and explosive equipment. Because there is no provision in criminal law and judicial interpretation, as long as the perpetrator commits the act of destroying flammable and explosive equipment, it constitutes the crime of destroying flammable and explosive equipment. The crime of destroying inflammable and explosive equipment is one of the crimes endangering public security. Legally speaking, the crime of endangering public security is not an act crime, but a dangerous crime.
The Supreme People's Court and the Supreme People's Procuratorate's Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Stealing Oil and Gas Equipment and Destroying Oil and Gas Equipment, how should the first article be interpreted and applied?
The public prosecutor's understanding of this article is that as long as the perpetrator carries out the act of destroying flammable and explosive equipment, it constitutes the crime of destroying flammable and explosive equipment. It is obviously untenable for the public prosecution agency to take this misunderstanding as the reason for protest.
The correct understanding of this article is: behavior+possibility of endangering public safety (bounded by semicolons, before behavior, after the possibility of endangering public safety). In other words, the application of this article needs to stipulate two elements at the same time: one is that the defendant has sabotage, and the other is that sabotage may endanger the safety of the public, but it has not caused serious consequences. During the trial of the first instance of this case, the public prosecution agency did not produce evidence that the defendant's theft of the motor might endanger public safety.
It can be seen that whether the defendant's behavior may endanger public safety is the key to the qualitative analysis of this case.
Whether the act of destroying oil wells constitutes the crime of destroying flammable and explosive equipment depends on the specific case. Defenders believe that considering the structure of the damaged oil well, the components damaged by the defendants, the means used, the environment around the oil well at the time of the crime and the consequences caused by theft, the actions of the two defendants are unlikely to endanger public safety, but only the property of the unit to which the oil well belongs. Although the stolen motor is integrated with the screw pump for pumping crude oil, it is not connected with the screw pump. The motor is fixed on the platform of the screw pump with screws. The function of the motor is to convert electrical energy into mechanical energy to drive the screw pump to rotate and pump crude oil out of the ground. The crude oil will flow into the underground oil pipeline, but it will not flow into the motor. It is impossible for the defendant to remove the screws on the motor and saw off the protective net outside the motor with a hacksaw to make the crude oil in the screw pump leak out of the oil well, and it will not cause the crude oil in the oil well to explode or burn due to high pressure. At the time of the incident, there was no oil leakage around the oil well, and the oil well was located in the wild, far away from residential areas. The defendant's behavior of sawing off the outer protective net of the motor and cutting off the wires could not lead to a fire around the oil well, thus endangering public safety. After the defendant stole the motor, it was found back. Judging from the consequences of the defendant's theft, it caused an oil well to stop production for a short time, and the production of the unit to which the oil well belongs lost, which did not endanger the public safety. However, because the motor was stolen and recovered, the property loss of the unit to which the oil well belongs was not great.
If the defendant's sabotage did not endanger public safety, it should be handled in accordance with Article 3 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Stealing and Destroying Oil and Gas Equipment, that is, if stealing oil and gas or oil and gas equipment in use constitutes a crime but does not endanger public safety, it shall be convicted and punished for theft in accordance with the provisions of Article 264 of the Criminal Law. On the basis of finding out the facts of the case, the first-instance judgment correctly applied this article to characterize the case as theft. It fully embodies the important principles of criminal law, and the crime is legally prescribed.
To sum up, the first-instance judgment found that the facts were clear, the applicable law was correct, and the sentence was appropriate. Therefore, the defender asked the court of second instance to uphold the judgment of first instance and reject the protest. thank you
Defender: Zhong Yuhua
Heilongjiang delun lawyer office
201010 June 16