Entrusted by Li Changkui, the appellant of the original trial, and his family, Beijing Shangquan Law Firm appointed Zhang Qingsong and Wang Guan as defenders in the retrial stage of Li Changkui's intentional homicide and rape case. According to the evidence of this case and the current laws and regulations of our country, we hereby put forward the following defense opinions.
First, the revision of the first-instance judgment by the second-instance judgment of the original trial belongs to the discretion difference between the two courts in the original trial on whether the death penalty must be executed immediately. As far as the evidence currently on file is concerned, there is nothing improper in ascertaining the facts and applying the law.
In this case, the judgments of the first and second instance of the original trial found that the facts were basically the same and the applicable laws were completely the same. According to the court investigation of the retrial of this case, the defender believes that the appellant Li Changkui in the original trial committed the crime of intentional homicide, and the circumstances are particularly serious. Article 48 of the Criminal Law is cited as the legal basis for sentencing in the judgment of the second instance, which stipulates: "The death penalty is only applicable to criminals who commit extremely serious crimes. For criminals who should be sentenced to death, if they do not have to be executed immediately, they can be sentenced to death with a two-year suspension. " Therefore, the two courts of first instance both thought that Li Changkui should be sentenced to death, but the first one thought that it must be executed immediately, while the second one thought that it was not necessary to be executed immediately. Under what circumstances, the death penalty "must be executed immediately" is not clearly stipulated in the criminal law, which requires the judge to make a comprehensive judgment based on the criminal facts, criminal nature, plot and social harm of the case. This judgment is bound to be related to the judge's own experience, cultural background, social cognition and other factors, and everyone's judgment is bound to be different. As long as this difference is within the scope prescribed by law, it is reasonable discretion.
2. Based on the evidence obtained by the courts of first and second instance in this case, it is more appropriate for Li Changkui to suspend execution for two years.
According to the criminal law, surrender is not a situation that must be given a lighter punishment. The judgment of the first instance of the original trial that "Li Changkui has surrendered himself, but it is not enough to be given a lighter punishment according to law" conforms to the law. However, while emphasizing the great social harm and particularly cruel means of crime, this determination ignores many plots and facts of lenient and lighter sentencing in Li Changkui. However, the judgments of the original trial and the second trial comprehensively considered the following three facts and circumstances, which directly affected the sentencing and punishment of Li Changkui:
1, surrender
On the afternoon of May 16, 2009, Li Changkui absconded after committing the crime, because he killed his cousin and was a person he liked, and his heart was extremely painful. Four days later, he voluntarily surrendered himself to the Chengguan police station in Puge County, Sichuan Province, and truthfully confessed his crimes. Is to turn yourself in. According to Article 67 of the Criminal Law, surrender can be given a lighter or mitigated punishment.
2. Compensate the victim for economic losses and plead guilty and repent.
During the first trial of the original trial of this case, Li Changkui's family paid the victim's family a burial fee of 2 1838.50 yuan through the mediation of Zu Mao Township Social Contradictions Mediation Center in Qiaojia County. As far as the consequences of this case are concerned, the compensation of more than 20 thousand is really too small. However, this is all the property of Li Changkui and his family. Only after Li Changkui's family sold all their property, such as steel bars, cement, bricks, sheep and horses, did they get enough money. It must be pointed out that according to the provisions of the criminal law, compensation for victims is limited to the material losses caused by criminal acts, and compensation itself does not affect sentencing. In many judicial interpretations in the Supreme People's Court, compensation for the economic loss of the victim and confession and repentance are listed as cases where the defendant can be given a lighter punishment. It is because the defendant's compensation behavior can reflect the defendant's understanding and repentance attitude towards his crimes to a certain extent. Therefore, the amount, manner and attitude of criminal compensation reflect the degree of confession and repentance of the defendant, rather than just considering the amount of compensation. In Zu Mao, where Li Changkui is located, the per capita net income in 2009 (that is, the year of the crime) was only 20 15.7 yuan 3. Li Changkui's family was extremely poor, and the family members had tried their best to compensate the victims' families. If only the amount of compensation and full compensation are used to measure whether the punishment is lighter, it will inevitably lead to the misleading that lighter punishment is the privilege of the rich and the death penalty is the patent of the poor.
According to the mediation opinion reached by the defendant and the victim at the first hearing of the original trial, Li Changkui's family provided the burial place of the victim's body. At present, the bodies of the two victims are buried in the front and back of Li Changkui's house, a grave in front of the house and a grave behind the house. According to the agreement of this mediation opinion, Li Changkui's family will also bear the responsibility of protecting these two graves. This way of dealing with Li's mental pain also reflects the attitude of complete repentance and atonement.
3. This case is a crime caused by the intensification of civil conflicts such as love, marriage, family and neighborhood disputes.
Li Changkui's family and the victim's family live in a small village with more than 30 families (Niuping Society in Ying Ge Village). Li Changkui's mother and the victim Wang Jiafei's mother are cousins, while Li Changkui and Wang Jiafei are cousins. According to the defendant Li Changkui's multiple confessions after the murder and Chen Libo's testimony, Li Changkui and the victim Wang Jiafei began to fall in love in June 2007, and Wang Jiafei became pregnant with his child. Later, in April 2007, a kiss was offered, but it was rejected by the Wangs, and the relationship between the two families fell out. In 2008, Wang Jiafei and Li Changkui broke off their love relationship, and Li Changkui was dissatisfied with this, and the contradiction intensified, which eventually led to the tragedy of this case. Li Changkui and the victim, as immediate family members and neighbors, lived in harmony and were like a family. However, due to Li Changkui's serious crimes, he was deprived of two lives, which caused the whole family to fall into extreme pain and even caused hatred between families. Crimes caused by the intensification of civil conflicts such as love, marriage, family and neighborhood disputes are characterized by a deep family foundation between the defendant and the victim before the crime. If the defendant is sentenced too severely, it may cause greater harm to both parties and further deepen the irreconcilable contradiction. Therefore, article 22 of the Supreme People's Court stipulates that a lighter punishment should be given as appropriate.
To sum up, the first-instance judgment of the original trial only considered the plot of Li Changkui's surrender, while the second-instance judgment of the original trial considered three light and lenient plots and facts. Although these plots are only "light" plots in law, it is obvious that the first-instance judgment is more comprehensive and the reasons for the revision are more reasonable.
Three, Li Changkui's major meritorious service should be carefully checked to verify whether the circumstances of his meritorious service are established before making a judgment.
During the second trial of this case, Li Changkui submitted a written report written by Li Changkui to the court, reporting two major criminal clues suspected of abducting and selling women and children. One occurred in 1990. Two suspects lured a girl from Yunnan, who was only 14 years old, to Shandong and sold it to others at a price of 6,000 yuan. The trafficked girl was still writing to her family for help until 2005, but she didn't know what to do because she couldn't read at home. Another incident occurred on 20/2003 1 month. The above two suspects, together with two other suspects, sold two underage girls from Yunnan to Chongqing for prostitution at a price of 9,000 yuan. The report submitted by Li Changkui during the second trial of the original trial mentioned the names, home addresses and family members of the suspects and victims, the specific time and place of committing the crime, the names and addresses of the buyers, and even the names of at least six witnesses who may know these criminal facts. However, this material did not attract attention in the second trial of the original trial, and there was neither cross-examination in court nor post-trial review. There is no material in the file to prove that this important fact has been verified. If Li Changkui's tip-off clue is true, according to Article 240th of the Criminal Law, the above-mentioned criminal suspect is suspected of abducting and selling women and children and may be sentenced to death. 7. Li Changkui should have made meritorious service. According to the provisions of Article 68 of the Criminal Law, Li Changkui has not only surrendered himself, but also made great meritorious service, and should be given a mitigated punishment or exempted from punishment. 8. Therefore, the judgments of the original trial and the second trial may not be too light, but too heavy.
This important fact, which was omitted in the first instance and the second instance, has two unusual meanings for Li Changkui, the appellant in the first instance of this case: on the one hand, we have a chance to find this omission because the judgment of the first instance changed the immediate execution of the death penalty to a suspended execution. Otherwise, not only will Li Changkui be deprived of his life, but most importantly, we will lose the opportunity to save three kidnapped girls, and the criminals who committed serious crimes will still be at large. It shows the importance of careful use of the death penalty; On the other hand, even from the existing evidence, it cannot be ruled out that Li Changkui has made great contributions in lightening or mitigating punishment. According to the provisions of Article 36 of the Provisions of the Supreme People's Court on Several Issues Concerning the Examination and Judgment of Evidence in Handling Death Penalty Cases, he should be sentenced to death with special care. This coincides with the rationality that the original trial and the second trial changed the death penalty to a suspended execution.
To sum up, the defender believes that there is nothing wrong with the courts of first instance and second instance not verifying the clues of Li Changkui's major meritorious service. The judgments of first instance and second instance comprehensively consider a number of lighter and lenient circumstances and the facts of the case, and the death sentence of appellant Li Changkui is reduced to a two-year suspension. However, the clues of reporting major crimes submitted by Li Changkui during the second trial of the original trial should be investigated and verified according to law. Whether the clues reported are true or not directly determines whether Li Changkui should be sentenced to a penalty below the death penalty.
In the retrial hearing this afternoon, the public prosecutor submitted three pieces of evidence to the court, proving that the public security organs in the three places did not find the relevant report records, proving that Li Changkui's report materials were untrue. Moreover, it is worth noting that the procuratorial organ asked the public security organ to verify the three pieces of evidence on the day of the trial. It took less than three hours from lunch break to the afternoon court session, and the public prosecution agency provided the verification results. In such a hurry, it is impossible to carefully verify the above clues, only to inquire whether there is a report record.
The defender expressed admiration for the working attitude of the procuratorate to check immediately after lunch break, but the evidence submitted by the procuratorate could not achieve its purpose of waiting for evidence. Of these three pieces of evidence, two are copies (or faxes), and there is no original to check, which cannot be used as the basis for finalizing the case according to law. There is also a piece of evidence, although it is the original, which only proves that there is no relevant report record. Defenders believe that Li Changkui's report materials include the names, home addresses and family members of the suspects and victims, as well as the names and addresses of the buyers and the names of at least six witnesses. Procuratorial organs have not verified these clear clues, and it is obviously imprudent to think that Li Changkui's report is inaccurate just because there is no report record of public security organs.
Please pay full attention to this plot. No matter whether the contents reported by Li Changkui during the second trial are true or not, the defendant should be sentenced according to law after finding out this fact.
Please adopt the above defense opinions according to law.
Defenders: Lawyer Zhang Qingsong and Lawyer Wang Guan of Beijing Shangquan Law Firm.
2011August 22nd
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1 Page 6 of Volume 2, Page 20 of Volume 2.
Article 4 of the Provisions of the Supreme People's Court on the Scope of Criminal Incidental Civil Action: "If the defendant compensates the victim for material losses, the people's court may consider it as a sentencing circumstance".
Article 23 of the Supreme People's Court: "If the defendant actively compensates the victim after committing a crime and pleads guilty and repents, it can be considered as a discretionary sentencing circumstance according to law."
3 See the portal of Yunnan provincial government information disclosure "General Situation of Zu Mao" and "Basic Situation of Social Economy, Land and Forestry in Zu Mao Township in 2009".
Page 20 of Volume 2, Page 2 1 of Volume 2, Page 26-27 of Volume 2.
Crimes caused by the intensification of civil conflicts such as love, marriage, family and neighborhood disputes, crimes caused by labor disputes and mismanagement, crimes without bad motives, and sudden crimes caused by the fault of the injured party or based on indignation or defense factors should be given a lighter punishment as appropriate.
On page 59 of the trial volume of the second instance, Li Changkui personally wrote the report materials.
Article 240th of the Criminal Law of People's Republic of China (PRC): "Whoever abducts and sells women and children shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years and shall also be fined; Under any of the following circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated; If the circumstances are especially serious, he shall be sentenced to death and his property shall be confiscated:
(1) The ringleader of a group that abducts and sells women and children;
(2) Abducting and selling more than three women and children;
(3) raping a trafficked woman;
(4) luring or forcing trafficked women to engage in prostitution or selling trafficked women to others for forced prostitution;
(5) Kidnapping women and children by violence, coercion or anesthesia for the purpose of selling;
(6) Stealing infants and young children for the purpose of selling;
(7) Causing serious injury, death or other serious consequences to abducted women, children or their relatives;
(8) Trafficking women and children abroad.
Abduction and trafficking in women and children refers to one of the acts of abducting, kidnapping, buying, selling, picking up and transferring women and children for the purpose of selling. "
Article 68 of the Criminal Law of People's Republic of China (PRC): "If a criminal has made meritorious deeds such as exposing other people's criminal acts, verifying them, or providing important clues to solve other cases, he may be given a lighter or mitigated punishment; Those who have made significant meritorious service may be mitigated or exempted from punishment.
Whoever surrenders himself after committing a crime and has made great meritorious service shall be given a mitigated punishment or exempted from punishment. "
Article 36 of the Supreme People's Court's Provisions on Several Issues Concerning the Examination and Judgment of Evidence in Handling Death Penalty Cases: "After the defendant is found guilty, the people's court determines the sentencing facts of the defendant. In addition to reviewing the statutory circumstances, the following circumstances affecting sentencing should also be reviewed: (1) the reasons for the case; (two) whether the victim is at fault and the degree of fault, whether he is responsible for the intensification of contradictions and the size of the responsibility; (three) whether the close relatives of the defendant assisted in the capture of the defendant; (four) the defendant's usual performance and attitude of no regrets; (five) the compensation of the victim's incidental civil action, and whether the defendant has obtained the understanding of the victim or his close relatives; (6) Other circumstances that affect sentencing. If there are circumstances such as lighter or mitigated punishment and heavier punishment, it shall be considered according to law. It cannot be ruled out that the defendant may be given a lighter or mitigated punishment, and the death penalty should be particularly cautious. "