A refined defense practice in a case of embezzlement of duty
Editor's Note: Under the system of leniency for guilty pleas and acceptance of punishment, criminal lawyers need to rely more on refined defense to promote the transformation of the parties' guilty pleas and acceptance of punishment from one-way acceptance to effective negotiation, and safeguard the legitimate rights and interests of the parties to the greatest extent. The defense practice of the embezzlement case presented in this article is a typical practical example of refined defense under the system of guilty plea and acceptance of punishment. Its defense ideas and practical methods can provide references for handling similar cases.
Abstract
The party involved in this case was initially investigated for fraud. The amount involved was determined to be 370,000 yuan, and the base sentence was approximately nine years in prison. The defense lawyer carried out a systematic defense around the core dispute of this case, promoting the adjustment of the case charge from fraud to embezzlement of duty, and the amount from 370,000 yuan to 150,000 yuan. On this basis, the compulsory measure was changed from arrest to bail pending trial. Eventually, the client was sentenced to eight months in prison and fined 15,000 yuan. During the case handling process, the defense attorney has formed a refined defense model based on process breakdown, centered on evidence review and legal argumentation, and oriented towards optimizing sentencing results by accurately grasping key nodes, systematically building the defense structure, and effectively promoting the negotiation between the prosecution and the defense.
1. Case Situation
The party involved in this case is an employee of a cargo station affiliated with a logistics company (the cargo station was separately registered as an individual business), responsible for the refueling of the station's vehicles. Specifically, they first paid the fuel cost to the gas station and then reimbursed it to the person in charge of the cargo station. As there was a situation of falsely increasing fuel costs during the write-off process, the investigation authority thus initiated an investigation into him on charges of fraud. On the fifth day after the investigation authority requested the procuratorial organ to approve the arrest, the party involved in this case entrusted Lawyer Li Shizeng from the Shanghai office of Dehe Hantong to act as the defense attorney.
During the pretrial defense stage, the charges and amounts involved in this case have been substantially adjusted, and the criminal responsibility of the parties has been significantly reduced. This case was initially filed under the charge of fraud. At the time when the procuratorate approved the arrest and the investigation authority transferred the case for review and prosecution, the charge was fraud and the involved amount was determined to be 370,000 yuan. According to the "Guiding Opinions on Sentencing for Common Crimes (Trial)" (Fa Fa [2021] No. 21) and relevant implementation rules, the base sentence is about nine years of fixed-term imprisonment and a fine.
After two rounds of supplementary investigation, two joint meetings of prosecutors for discussion and multiple rounds of communication between the prosecution and the defense, the procuratorial organ ultimately determined that the charge and the amount involved in this case need to be adjusted. It should not be classified as fraud, and the amount should not be recognized as 370,000 yuan. At the application of the defense attorney, the case lawfully initiated the leniency procedure for guilty pleas and acceptance of punishment. The parties and the procuratorial organ reached a written agreement, determining the charge as embezzlement of duty, the amount as 150,000 yuan, and the sentence as eight months of fixed-term imprisonment and a fine. At the same time, upon the defense attorney's application for a review of the necessity of detention, the procuratorial organ proposed to the judicial organ that the compulsory measures be changed and there was no need for continued detention. The judicial organ lawfully changed the compulsory measures to bail pending trial.
During the trial stage, the defense attorney, on the basis of consolidating the existing defense achievements, further put forward special opinions on the application of fines, pointing out that the provision of "a fine of more than 100,000 yuan" for the crime of embezzlement of duty in the "Guiding Opinions on Sentencing for Common Crimes (Trial)" and related implementation rules should not be mechanically applied in this case. Ultimately, while adopting the aforementioned sentencing recommendation, the judicial authority sentenced the party concerned to a fine of 15,000 yuan.
2. Key points of dispute and Defense strategies
There are obvious differences in this case mainly in the determination of charges, amounts, sentencing circumstances and the application of compulsory measures. The defense counsel, centering on the above four aspects, combined with facts, laws and guiding cases, put forward opinions on each dispute one by one, and at the same time carried out targeted investigation and evidence collection work to promote more accurate determination of case facts and application of laws. Specifically as follows:
(1) Debate on Charges: Is it fraud or embezzlement of duty?
The base sentence for a fraud amount of 370,000 yuan is approximately nine years in prison, while the same amount is only about 11 months in the crime of embezzlement of duty. There is a significant difference in sentencing between the two crimes. If it is claimed that the crime of embezzlement of duty as a special legal provision should be given priority in this case, the following four issues need to be addressed as a priority: First, can a freight station registered as an individual industrial and commercial household be recognized as "other units" in the crime of embezzlement of duty? Second, if the party concerned has not signed a labor contract with the unit, can they be recognized as "unit personnel" in the crime of embezzlement of duty? Thirdly, if the fuel cost is settled through the wechat account of the person in charge of the freight station, can it be recognized as "unit property" in the crime of embezzlement of duty? Fourth, if the fuel expenses are falsely reported and then written off, can it be recognized as "illegally appropriating the property of one's own unit for personal use" in the crime of embezzlement of duty?
Can an individual business operator be recognized as "other units"?
Some viewpoints cite the guiding case No. 318 of the "Criminal Trial Reference", "Zhang Jianzhong's Embezzlement Case", arguing that individual industrial and commercial households do not possess the organizational characteristics of a unit and are essentially individuals in the sense of criminal law, and thus cannot be recognized as "other units" in the crime of embezzlement of duty.
In this regard, the defense mainly put forward that the "Zhang Jianzhong embezzlement case" no longer has guiding significance. The freight station in this case has organizational and property characteristics and should be recognized as "other units" in the crime of embezzlement of duty. The aforementioned guiding cases were published in Criminal Trial Reference in 2004. However, with the continuous development of the market economy, the People's Court of Chancheng District, Foshan City, which handled this case, has made substantive adjustments to the earlier viewpoints in similar case judgments since 2012, gradually forming a new judicial viewpoint: individual industrial and commercial households can constitute "other units" in the crime of embezzlement of duty. From the general judgment path of current criminal judicial practice, when determining "other units" in the crime of embezzlement by an employee, two core elements should be focused on for review and judgment: one is organizational characteristics, and the other is property characteristics.
Based on the aforementioned judgment criteria, the defense attorney carried out systematic investigation and evidence collection work from the perspective of evidence. Firstly, the rules and regulations of the freight station should be legally fixed as documentary evidence and submitted to the judicial authorities to prove that the freight station has formed a stable organizational management structure in terms of personnel management, business processes, etc. Secondly, based on clues such as the need to pay a deposit and open a settlement account for the establishment of a freight station, apply to judicial authorities in accordance with the law to obtain relevant witness statements, documentary evidence, etc. Finally, through multiple meetings, the favorable defenses of the parties involved were systematically sorted out, and the relevant defenses were reflected in the interrogation records.
Based on the above evidence, it is sufficient to prove that the freight station not only has established rules and regulations, but also has personnel division of labor and supervision and management relationships, and possesses organizational characteristics. At the same time, it has an independent settlement account and pays a deposit of 100,000 yuan. It has independent income and expenditure and possesses property characteristics, that is, it has property independent of that of an individual business operator. Therefore, the freight station in this case was ultimately identified as "other units" in the crime of embezzlement of duty.
Can personnel who have not signed a labor contract be recognized as "unit personnel"?
Some people hold the view that the party concerned has not signed a labor contract with the employer, which does not meet the subject requirements of the crime of embezzlement by an employee.
In this regard, the defense mainly points out that when determining the "unit personnel" in the crime of embezzlement of duty, it should be based on a substantive judgment of whether there is a labor relationship with the unit, rather than a formal judgment of whether a labor contract has been signed with the unit. The case of "He Song's Embezzlement of Duty" included in the People's Court case database clearly states that although the perpetrator did not sign a written labor contract with the company, if there is a "de facto labor relationship" between the two parties, they should still be recognized as a unit staff member in the crime of embezzlement of duty. Although the parties involved in this case did not sign a written labor contract, they have been employed by the unit for a long time to engage in transportation work, only accepting the management and work arrangements of the unit, and receiving labor remuneration from the unit's responsible person on a monthly basis. A stable and continuous de facto labor relationship has been formed between the two parties, and they should be recognized as "unit personnel" in the crime of embezzlement of duty.
3. Can the fuel expenses settled in an individual account be recognized as "unit property"?
Some people hold the view that since the fuel cost is settled through the personal wechat account of the person in charge of the freight station, the party concerned is infringing upon personal property rather than the property of the unit.
In this regard, the defense argued that settlement through personal accounts does not change the nature of the involved funds as the property of the unit. The purpose of the funds should be substantially examined to determine whether they are the property of the unit. Even if the involved funds are transferred through personal accounts, as long as their purpose is directed towards the unit's business activities, they should still be recognized as the property of the unit. Although the person in charge of the freight station paid the fuel fee to the party concerned through his personal wechat account, the relevant funds were used for the operation of the freight station rather than personal affairs. Therefore, the involved funds belong to the property of the unit rather than personal property.
Guiding Case No. 1515 of the "Criminal Trial Reference", "Zhang's Misappropriation of Funds Case", clearly states: "The company's use of personal bank accounts to pay and settle operating expenses does indeed violate financial regulations, but this cannot deny the essence of the company conducting business activities' in the name of the company ', nor can it deny the determination that it is a victimized entity."
4. Can the write-off of falsely reported fuel expenses be regarded as "illegally appropriating the property of one's own unit for personal use"?
Some people hold the view that if the party concerned first pays the fuel cost and then falsely reports the write-off to the person in charge of the freight station, it constitutes fabricating facts to defraud property and does not meet the criteria of "illegally appropriating the property of one's own unit for oneself" in the crime of embezzlement of duty. Therefore, it should be recognized as fraud.
In this regard, the defense argued that the act of fraud is also an act of committing the crime of embezzlement by an employee. To categorize fraudulent acts as fraud is an erroneous restriction on the scope of establishment of the crime of embezzlement by an employee. The behavioral patterns of the crime of embezzlement by an employee not only include embezzling the property of the unit, that is, taking the property of the unit that one already possesses for oneself, but also include stealing and defrauding the property of the unit.
In this regard, Case No. 1440 of the "Criminal Trial Reference", "Han Feng's Embezzlement of Duty Case", clearly states: "As long as the perpetrator illegally appropriates the property of the unit by taking advantage of the convenience of their position, regardless of whether they use theft, fraud or other means, it does not affect the fact that their behavior constitutes the crime of embezzlement of duty."
(2) Debate on the amount: Can 370,000 yuan be recognized?
During the review and prosecution stage, the defense attorney, after a comprehensive review of the case files, found that the alleged amount involved in the case of 370,000 yuan was based on the following three pieces of evidence: First, the wechat income and expenditure records of the party concerned, which proved that there was a difference between the total amount of fuel funds received by the party concerned and the fuel fees they paid, totaling 370,000 yuan. The second is the statement of the person in charge of the freight station, which proves that he believes the losses caused to him by the party concerned are approximately 300,000 yuan. The third is the confession of the co-conspirator, which proves that he has never seen the party involved carry or use cash.
After reviewing the relevant evidence from the perspectives of probative capacity and probative force regarding the aforementioned evidence and the facts to be proved, the defense counsel pointed out that the prosecution's current evidence is still insufficient to prove that the amount involved in the case is 370,000 yuan. Specifically:
First, the relevant statements of the person in charge of the freight station cannot be used as evidence in accordance with the law. The person in charge of the freight station was unaware of the amount and frequency of the fraud defrauded by the party concerned. His relevant statements were not his personal perception and had no basis for calculation. Therefore, they fall under the category of opinion evidence that cannot be used as evidence in accordance with the law. In this regard, Article 88, Paragraph 2 of the "Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law" clearly stipulates: "The speculative, critical or inferential testimony of witnesses shall not be used as evidence, except where it is judged to be in line with the facts based on general life experience."
Second, the relevant confessions of co-defendants cannot be used as the basis for a verdict. On the one hand, in terms of the stability of the confession, there are obvious contradictions in the confessions of this co-conspirator. He initially confessed that the party involved had never carried or used cash. Later, in order to reduce the amount of money he was involved in, he claimed that the part of the money transferred to him by the party via wechat was not the involved funds but the cash he had exchanged from him previously. Furthermore, during the trial, the defense attorney questioned the co-defendant, who admitted on the spot that the party had used cash. On the other hand, in terms of the consistency of evidence, the relevant confessions of this co-defendant are obviously contradictory to other evidence, while their subsequent and trial confessions can corroborate each other with other evidence. The evidence such as witness statements and fuel vouchers that the defense attorney lawfully applied to obtain can confirm that the party concerned has a source of cash and indeed completed the actual payment of fuel fees in the form of "part cash and part wechat transfer".
Article 96 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law stipulates: "When examining the confession and defense of the defendant, it shall be conducted in combination with all the evidence provided by both the prosecution and the defense as well as all the confessions and defenses of the defendant..." If the defendant's pretrial confession and defense are inconsistent but the defendant confesses during the trial and such confession corroborates other evidence, the defendant's trial confession may be accepted.
Therefore, the confession of the co-defendant that "the party concerned has never carried or used cash" cannot be used as the basis for the case in accordance with the law. On the contrary, its subsequent and court testimony should be accepted.
Thirdly, the wechat income and expenditure records cannot prove the actual losses of the victims. Judging from the content of the proof, this evidence can only reflect the fuel payment situation of the party concerned through wechat, but cannot cover the fuel expenses incurred through other payment methods. Therefore, it cannot be directly determined based on this that the amount involved in this case, that is, the actual loss of the victimized entity, is 370,000 yuan.
Finally, based on the above three pieces of evidence, it can be seen that the wechat income and expenditure records used to prove the "370,000 yuan difference in income and expenditure", the statement of the freight station manager used to prove the "loss of approximately 300,000 yuan", and the confessions of the co-defendants used to prove that "the party concerned never used or carried cash" do not form an effective mutual corroboration relationship among the three. This is not sufficient to determine that the amount involved in this case is 370,000 yuan.
(3) Debate on Sentencing Circumstances: Is Self-surrender Established?
After the public security organ filed a case, the investigators asked the person in charge of the unit to notify the party concerned by phone to go to the designated location to wait. However, the person in charge of the unit only informed the party concerned to go to the designated location and did not inform the investigators to wait at the scene. After the parties arrived at the designated location, their identities were verified by the investigators and they were forcibly taken away from the scene. However, there were no litigation documents such as summonses or compulsory appearance warrants in this case.
Some people hold the view that when the parties arrived at the scene, they did not have the subjective mentality of "voluntarily placing themselves under the control of the judicial authorities", and did not voluntarily surrender to the judicial authorities. In light of the fact that he was directly controlled and taken away from the scene by the investigators afterwards, it should be determined that he was arrested passively.
In this regard, the defense believes that this case should be recognized as voluntary surrender.
First, from the perspective of the scope of objects subject to voluntary surrender, surrendering to the person in charge of the unit also falls under voluntary surrender. The party concerned has surrendered to the person in charge of the unit. According to Article 1 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in Handling Self-Surrender and Meritorious Service" (Judicial Interpretation No. 8 [1998]), "Where a criminal suspect surrenders to his or her unit, urban or rural grassroots organization or other relevant responsible personnel..." Those who have been verified to have indeed prepared to surrender or are on their way to surrender and have been captured by the public security authorities... It should be regarded as voluntary surrender." In this case, the party concerned has developed the intention to explain the situation to the person in charge of the unit and confess the fact of falsely reporting fuel expenses, and has gone to the meeting place as agreed. The nature of their behavior is to surrender to the person in charge of the unit. Even if one is controlled by the public security authorities during the process of surrendering, according to the above regulations, it should still be recognized as voluntary surrender.
Second, there is an objective basis for determining that the party concerned has surrendered to the person in charge of the unit. In this case, the person in charge of the freight station still owes the party concerned several months 'salary. The person in charge of the unit informed the party concerned to come to the designated location on the grounds of dismissal. Although the party concerned was far from the meeting place, he still went there voluntarily. His original intention was to give up part of the unpaid wages during the meeting and confess the previous false reporting of fuel expenses in order to make up for the losses of the freight station. Therefore, it should be determined that the party concerned has voluntarily surrendered.
(4）
The Debate on Compulsory Measures: Is direct Arrest Applicable?
The party concerned was sentenced to two years in prison with a two-year probation for the crime of intentional injury 16 years ago. Some people hold the view based on this that he has committed "intentional crimes in the past", and the existing evidence proves that he has committed a crime and may be sentenced to imprisonment or a more severe punishment. Therefore, he should be arrested according to law.
Article 81, Paragraph 3 of the Criminal Procedure Law stipulates: "Where there is evidence proving the existence of a criminal fact and the offender may be sentenced to fixed-term imprisonment of not less than ten years, or where there is evidence proving the existence of a criminal fact and the offender may be sentenced to fixed-term imprisonment of not less than one year, and the offender has committed an intentional crime before or his identity is unknown, he shall be arrested."
In addition to raising objections to the evidence required for arrest and the elements of punishment, the defense counsel, from the perspective of the element of social danger, proposed that direct arrest should not be applied to the party concerned. Although the party concerned has a previous record of intentional crime, the first point is that this record dates back 16 years, which is obviously too long. Second, the party concerned was previously granted probation, which indicates that the circumstances of the crime were relatively minor and the necessity of prevention was low. Taking a criminal record from 16 years ago that is eligible for probation directly as the basis for determining social danger not only fails to meet the requirements of substantive judgment but also violates the principle of proportionality. This case can refer to the expert opinions and practical practices mentioned in the article "Understanding and Applying 'Intentional Crime in the Past' from the Perspective of Social Danger Standards" on the 3rd page of the People's Procuratorate Daily on April 8, 2023 (during the epidemic, some procuratorates in Beijing made a limited interpretation of "intentional crime in the past", essentially judging the social danger of the suspect and limiting the scope of application of direct arrest) : On the one hand, the restriction of "once" in "once intentionally committed a crime" is interpreted as: within five years after the completion of the execution of the sentence or a pardon. On the other hand, the restriction of "crime" in "intentional crime in the past" is interpreted as: a serious situation where one may be sentenced to fixed-term imprisonment or above and has not been granted probation. However, as there were no special circumstances such as the epidemic in this case, the above viewpoint was not adopted and the party involved was eventually approved for arrest.
3 Defense Insights
(1) Skillfully Utilize the litigation process to achieve a comprehensive review
Take the review and approval of arrest process as an example. Lawyers can systematically put forward defense opinions from three dimensions: The first is the evidence dimension: Centering on whether the facts are clear, whether the evidence is solid and sufficient, and whether there is any illegal evidence, they can put forward evidence review opinions. The second is the substantive dimension: propose legal application opinions of innocence or lesser guilt; The third dimension is social danger: Put forward opinions on the application of compulsory measures that are not necessary for arrest. Based on the accuracy of the accusations and the quality of case handling, procuratorial organs generally listen to the aforementioned opinions put forward by lawyers and adopt the reasonable viewpoints among them.
During the review and approval of arrest in this case, the defense attorney precisely focused on three dimensions: evidence, application of law, and social danger, and put forward the lawyer's opinion of not approving the arrest from both legal and emotional perspectives. Although the party involved was eventually approved for arrest, the opinions at this stage prompted the procuratorial organs to conduct a more comprehensive and in-depth review of the case again, shaking their confidence in the determination of the charges and the amount involved in this case. They transformed the defense plan into key points in the outline for further investigation, laying an important foundation for the subsequent defense work. In some cases, the function of a defense attorney's application for a review of the necessity of detention is similar to that of presenting an opinion not to approve arrest. It is not merely to release the party from detention but also aims to prompt judicial authorities to conduct further reviews of the case.
In this specific case, the defense counsel put forward the opinion of not approving the arrest from the following three perspectives:
First, from the perspective of evidence. The application of arrest measures must meet the proof standard of "having evidence to prove the existence of criminal facts". This standard not only requires evidence indicating that the criminal suspect has carried out relevant acts, but also should have evidence proving that the acts have reached the criminal case-filing standard. In this case, although the party concerned admitted to the act of falsely reporting fuel expenses, there is no evidence to confirm the specific amount, which does not meet the evidence conditions for arrest.
Second, from the perspective of legal application. Previously, the crime of embezzlement by an employee was not within the scope of the prosecution's consideration, or the prosecution simply ruled out the possibility of its application. After the defense's intervention, it was pointed out that there were facts in this case that the prosecution was not aware of. Overall, this case constituted the crime of embezzlement of duty. If the final evaluation is based on this charge, the final sentence declared by the party concerned may be less than fixed-term imprisonment, which does not meet the conditions for arrest.
Third, from the perspective of social danger. Firstly, when applying the direct arrest as stipulated in Article 81, Paragraph 3 of the Criminal Procedure Law, the investigation authority should transfer the judgment document regarding "having committed an intentional crime before" along with the case. If the investigation authority of this case does not transfer the aforementioned judgment document along with the case, the party concerned shall not be arrested directly in accordance with the law.
In this regard, Article 135, Paragraph 1 of the "Rules of Criminal Procedure of the People's Procuratorate" stipulates: "When the People's Procuratorate examines and determines whether a criminal suspect has social danger, it shall base it on the relevant evidence of social danger transferred by the public security organ and make a comprehensive determination in combination with the specific circumstances of the case."
Secondly, directly using a criminal record from 16 years ago that is eligible for probation as the basis for determining social danger not only fails to meet the requirements of substantive judgment but also violates the principle of proportionality.
Furthermore, the defense attorney, based on the certificate issued by the community where the party is located and other relevant materials that can reflect the circumstances that make arrest inappropriate, earnestly requests the judicial authorities from the perspective of reason and emotion not to approve the arrest of the party in accordance with the law.
(2) Produce professional reports and establish a defense system
During the review process, in order to enhance the quality of defense, the defense attorney drew on the analytical framework of the procuratorial organs' review reports and produced a "lawyer's version of the review report", namely the "defense report". The defense report can systematically present the following defense process: First, it is the procedural defense process of sorting out the litigation progress of the case, dynamically assessing the necessity of detention, and comprehensively reviewing the legality of criminal prosecution activities; The second is the evidence defense process of identifying and dismantling the prosecution's proof system, uncovering favorable evidence or clues, and reconstructing the proof path. The third is the defense process of extracting and analyzing the key points of dispute in the case and gradually forming an opinion of innocence or lesser guilt. The fourth is the process of sentencing defense that sorts out and evaluates the sentencing circumstances and puts forward precise sentencing recommendations. Therefore, a high-quality defense report can not only significantly enhance the depth and breadth of case research but also serve as a fundamental document for subsequent defense work; It can also be submitted to the procuratorial organs and judicial organs as an important reference basis for communication and discussion among the prosecution, defense and trial.
Structurally, a defense report consists of three parts: the introduction, the main body and the conclusion. The first section should be filled with the lawyer's case acceptance situation, litigation process, and basic information such as the judicial organ handling the case and the case handler. The last section should indicate the names of the handling lawyer and the lawyer's assistant, as well as the date of report preparation. The main body of the defense report includes:
(1) Basic information of the parties and other participants in the litigation. Including the parties involved, co-defendants, victims, witnesses and expert witnesses, etc.
(2) Present the process of solving the case. All the evidence materials of the case, including the case acceptance registration form, the report on filing a case, the decision on filing a case, the process of arrival, relevant situation explanations and interrogation records, should be comprehensively considered to accurately determine whether the party involved has any circumstances that affect the determination of guilt and sentencing, such as self-surrender, meritorious service or escape.
(3) Facts and opinions as determined by judicial authorities. First, extract the facts and opinions determined by different case-handling authorities respectively, including the investigation (investigation) authorities, procuratorial organs and judicial authorities; Secondly, systematically sort out the facts and opinions of each stage in chronological order, and compare the changes in factual determination and legal evaluation at key nodes (such as submitting for approval of arrest, approving arrest, transferring for review and prosecution, initiating public prosecution, etc.). Finally, on this basis, analyze the logic of the charges or the judicial thinking behind the case.
(4) The facts and evidence as determined by the defense. Although the factual section is placed before the evidence section, in terms of the sequence of production, it should be to first extract the evidence, then analyze it, and finally determine the facts. When extracting evidence, evidence with consistent proof directions or similar proof contents can be grouped together. For instance, physical evidence and the corresponding extraction procedures, including search records, seizure records, seizure decisions, seizure lists, on-site investigation records, etc., can be placed in one group for extraction. When analyzing evidence, it is necessary to provide a clear explanation of the matters proved by each piece of evidence and review its evidential capacity and probative force. The facts to be determined should have: completeness (centered around elements such as when, who, where, what behavior, what means, what tools, and what consequences, covering all facts regarding whether a crime is committed, the severity of the crime, and whether punishment should be aggravated or mitigated or exempted), rigor (each sentence should be supported by corresponding evidence), and standardization (accurate and concise expression, closely centered around the elements of the crime).
(5) The defense's opinion on the entire case. This includes:
① Opinions on facts and evidence
Unlike the review reports prepared by prosecutors, defense reports do not provide comprehensive and straightforward positive arguments. Instead, they focus on the factual determination differences between judicial authorities and defense attorneys, clearly define specific sub-facts in dispute, and on this basis, systematically sort out the related evidence materials, conduct targeted reviews and evaluations, thereby revealing the weak links in the prosecution's proof system. And reconstruct a more convincing proof path. That is to say, on the basis of the aforementioned analysis of individual evidence, further conduct a comprehensive analysis of the related evidence around the disputed sub-facts.
In addition, evidence that may be subject to the exclusion rules of evidence will also be specifically emphasized here, including evidence that may be subject to the exclusion rules of illegal evidence, defective evidence, and opinion evidence, etc.
② Opinions on the application of the law
This section incorporates reasonable elements of the German forensic report (see Chen Xuan, Criminal Law Thinking and Case Studies, Peking University Press, 2023). The specific approach is:
The first is to divide the factual units. The scope of the breakdown should not only cover all the criminal facts that the party is accused of, but also extend to the relevant criminal facts committed by the personnel related to the party in the case, so as to explore the possible meritorious circumstances of the party. In this case, such a situation exists: First, the party concerned had purchased diesel from a merchant who did not have the qualification to operate diesel, and this merchant was suspected of the crime of illegal business operation or the crime of dangerous operation; Secondly, the party involved had purchased diesel from a person holding a fuel card at a gas station. The person selling the card is suspected of the crime of issuing false value-added tax special invoices. Based on this, the defense counsel assists the client in lawfully reporting clues to the judicial authorities to strive for the determination of meritorious service.
The second is to list the suspected charges. When it comes to the concurrent relationship of legal provisions, judicial practice often only applies ordinary legal provisions and neglects special ones. For instance, during the review and approval of arrest stage of this case, the prosecution failed to fully consider the possibility of its application as a special legal provision for the crime of embezzlement of duty. Therefore, a comprehensive review of the legal provisions that the parties may be involved in should be conducted to avoid any unfavorable omissions. Furthermore, when judicial authorities have already conducted evaluations in accordance with special legal provisions, a systematic review of all charges can also provide support for a defense of leniency. For instance, in a certain case of duty-related crime, the judicial authorities simultaneously identified the party involved as the crime of shielding a mafia-like organization and the crime of accepting bribes. In response, the defense attorney started by denying the former charge, arguing that the relevant behavior was more in line with the crime of abuse of power, and further advocated that in terms of the number of crimes, it should be evaluated as the crime of perverting justice for personal gain in accordance with the law.
The third is to split the constituent elements. The key points of dispute in the case should be discussed under the specific constituent elements to avoid each party speaking their own way when communicating with judicial authorities, thereby enhancing communication efficiency and the possibility of viewpoint adoption. For instance, the registration of a freight station as an individual business is related to the determination of "unit" in the crime of embezzlement of duty, and the false reporting of fuel expenses is related to the determination of "illegally appropriating the property of one's own unit for personal use" in the crime of embezzlement of duty.
The fourth is to form a conclusion for the entire case. Where a party or other relevant personnel are suspected of two or more crimes, further measures should be taken to address issues such as the conjunctions of legal provisions, imagined conjunctions, and associated crimes, to prevent the adverse consequence of being punished for multiple crimes concurrently when a single crime could have been evaluated. At the same time, it should be clarified whether all the involved personnel will ultimately bear or what kind of criminal responsibility they will bear.
③ Opinions on the application of criminal penalties
First, regarding sentencing circumstances. Comprehensively review the sentencing circumstances of this case, and analyze and argue the controversial sentencing circumstances in combination with specific laws, judicial interpretations, etc.
Second, regarding sentencing opinions. First, the starting point of sentencing should be determined within the corresponding statutory penalty range based on the basic facts of the crime. Secondly, based on other criminal facts that affect the composition of the crime, such as the amount of the crime, the number of crimes, and the consequences of the crime, the penalty should be increased on the basis of the starting point of sentencing to determine the benchmark sentence. Finally, the base sentence is adjusted based on the sentencing circumstances, and the declared sentence is determined. Here are three tips:
Youdaoplaceholder0 First, distinguish between two types of sentencing circumstances. On the one hand, in terms of the sequence of adjustment, the 13 statutory sentencing circumstances stipulated in the General Provisions of the Criminal Law shall be given priority for the initial adjustment of the base sentence. Based on the aforementioned adjustment results, further adjustments should be made by comprehensively applying other sentencing circumstances. The aforementioned 13 sentencing circumstances include: crimes committed by minors, crimes committed by the elderly, crimes committed by mentally ill persons with limited capacity for conduct, crimes committed by deaf or mute persons or the blind, excessive defense, excessive avoidance of risks, completed crimes (only referring to the situation where the base sentence is determined based on the attempted part of the crime), preparatory crimes, attempted crimes, crime cessation, accessory crimes, coerced accessory crimes, and abettors. On the other hand, in terms of the adjustment method, for the 13 preferred sentencing circumstances, the base sentence is adjusted by the method of consecutive multiplication. For other sentencing circumstances, the overall adjustment ratio is determined by adding in the same direction and subtracting in the opposite direction, and the base sentence is finally adjusted accordingly.
Youdaoplaceholder0 Secondly, the sentencing circumstances shall not be evaluated repeatedly. Confession and acceptance of punishment shall not be evaluated repeatedly with sentencing circumstances such as self-surrender, confession, voluntary confession in court, return of ill-gotten gains and compensation, compensation and forgiveness, criminal reconciliation, and good performance during detention. Where a person confesses and accepts punishment and also has the aforementioned circumstances, the base sentence may be reduced by less than 60%. Where the crime is relatively minor, the base sentence may be reduced by more than 60% or the person may be exempted from punishment in accordance with the law.
Youdaoplaceholder0 Thirdly, there are restrictions on the reduction of the term of imprisonment for concurrent sentences. When multiple crimes are punished concurrently, the reduction range should be determined based on the total term of each crime: if the total term of imprisonment is less than five years, the reduced term of imprisonment generally shall not exceed one year. Where the total term of imprisonment is more than five years but less than ten years, the reduction in the term of imprisonment generally shall not exceed two years. Where the total term of imprisonment is more than ten years but less than fifteen years, the reduction in the term of imprisonment generally shall not exceed three years.
(3) Effective consultation between the prosecution and the defense to implement the defense outcomes
1. Is there any consultation between the prosecution and the defense?
The current normative documents have established the mechanism for prosecution and defense consultation.
Article 33 of the "Guiding Opinions on the Application of the Leniency System for Guilty Pleas and Acceptance of Punishment" (October 11, 2019) issued by the Ministry of Justice, the People's Procuratorate and the Ministry of Public Security stipulates: "If a criminal suspect confesses and accepts punishment, the People's Procuratorate shall put forward sentencing suggestions regarding the principal punishment, additional punishment, and whether to apply probation, etc." Before the People's Procuratorate puts forward a sentencing recommendation, it shall fully listen to the opinions of the criminal suspect, the defense attorney or the on-duty lawyer and try to reach a consensus through consultation. Subsequently, Article 25, Paragraph 2 of the "Guiding Opinions of the Supreme People's Procuratorate on Conducting Sentencing Recommendation Work in Handling Cases of Guilty Pleas and Acceptance of Punishment" (December 3, 2021) issued by the Supreme People's Procuratorate further stipulates: If a criminal suspect, his or her defense counsel or duty lawyer raises different opinions on the sentencing recommendation or submits evidence materials that affect the sentencing, and the People's Procuratorate, after review, deems the opinions of the criminal suspect, his or her defense counsel or duty lawyer reasonable, it shall adopt them and adjust the sentencing recommendation accordingly. If the review deems the opinions unreasonable, Explanations and clarifications should be made in light of legal provisions, the overall circumstances of the case, and judgments of similar cases.
2. Why is it necessary to conduct prosecution and defense consultations?
The sentencing recommendations for cases involving guilty pleas and acceptance of punishment reflect the procuratorial organs' right to seek criminal penalties and also possess the attribute of "commitment". After reviewing the voluntariness, authenticity and legality, the courts will generally fully respect and adopt them.
Article 201 of the Criminal Procedure Law stipulates: "For cases where the defendant pleads guilty and accepts punishment, when the people's court makes a judgment in accordance with the law, it generally shall adopt the charges and sentencing recommendations brought by the people's procuratorate."
This means that in cases where the defendant pleads guilty and accepts punishment, the sentencing recommendations formed through negotiation between the prosecution and the defense often have high stability and predictability. Therefore, conducting effective negotiations between the prosecution and the defense can help the parties reach a relatively certain and favorable outcome before the case enters trial.
Moreover, the signing of the plea agreement by the parties does not mean that the case has entered the final stage of defense. The defense attorney still independently expresses defense opinions in accordance with the law: on the one hand, they work together with the prosecution to persuade the judge to adopt the negotiation results that have already been formed; On the other hand, further efforts can be made to safeguard the legitimate rights and interests of the parties involved in terms of the charges, amounts involved, sentencing circumstances, terms of imprisonment, and fines.
3. When will the prosecution and defense consultations be held?
The prerequisite for conducting prosecution and defense consultation is to complete the defense consultation, that is, both the defense attorney and the client reach a consensus on whether to plead guilty and accept punishment and the application of procedures after pleading guilty and accepting punishment. Its core principle can be summarized as "Lawyers draw the map, and clients choose the path."
First, assess the facts and evidence of the case. The defense attorney should first systematically sort out the evidence on file, determine which evidence can prove that the party committed the criminal act, and assess whether the relevant evidence has reached the criminal proof standard and whether the facts of the case can be recognized. On the one hand, if the facts of the case are clear and the evidence is solid and sufficient, the lawyer should promptly clarify to the client the differences in the extent of sentencing reduction for those who plead guilty and accept punishment at different stages: for those who plead guilty and accept punishment throughout the investigation stage, the base sentence can be reduced by less than 25%. The review and prosecution stage can be reduced by up to 15% or less. The trial stage can be reduced by less than 10%. If the client firmly denies the facts of the accusation, even if the evidence is very sufficient and the facts are very clear, the lawyer should respect the client's will and defend them. On the other hand, when the evidence is not particularly sufficient and the facts are not particularly clear, the lawyer should assist the client in analyzing: if the client chooses to admit the facts of the accusation, in what direction the case will develop; And what would the outcome of the case be if one chose to insist on not admitting it? In practice, there are cases where the innocent are admitted. For instance, some parties, despite lacking the element of subjective knowledge, ultimately choose to "admit" that they have knowledge based on practical considerations such as changing compulsory measures, striving for relative non-prosecution, applying for conviction, exemption from punishment or probation.
Second, assess the legal consequences of pleading guilty and accepting punishment. When the party concerned indicates that they can admit the facts of the charges, the lawyer should further precisely assess the legal consequences of pleading guilty and accepting punishment, and assist the party concerned in rationally deciding whether and under what conditions to reach a plea agreement with the procuratorial organ. Specifically, it includes: First, assessing the possible charges involved, whether it is one crime or multiple crimes, and whether it is a minor crime or a serious crime; Second, sort out the sentencing circumstances of the parties involved, including statutory, discretionary, mitigating and aggravating circumstances; Thirdly, on this basis, predict the possible prison terms, fines and the application of compulsory measures.
4. How to prepare for the prosecution and defense consultation?
The occurrence of prosecution and defense negotiation is subject to the necessary condition that both parties have the need for negotiation. Generally speaking, when the facts of a case are not particularly clear, the evidence is not particularly sufficient, or the application of the law is not so explicit, but there is a certain space for discussion, there are multiple possibilities for handling the case, or the judicial authorities are under pressure to close the case, the prosecution is more likely to develop a willingness to negotiate. On the contrary, in cases where the facts are clear, the evidence is solid and sufficient, the application of law is explicit, and the judicial authorities do not pursue the speed of case closure, the public prosecutor's office usually lacks the need for negotiation. At this point, even if the party concerned pleads guilty and accepts punishment, leniency is one-way. It is a discretionary decision made by judicial authorities on their own initiative after considering the attitude of the criminal suspect or defendant, rather than the result of mutual consultation.
Therefore, defense lawyers should create conditions for effective negotiation between the prosecution and the defense from four aspects: procedural review, fact determination, application of law, and sentencing assessment, and strive for negotiation chips that can substantially influence the negotiation outcome: First, conduct a comprehensive review of the legality of criminal prosecution activities and identify the procedural violations of the prosecution. Second, identify the loopholes in the prosecution's proof system, eliminate unfavorable facts, and construct favorable ones. Third, argue for the deviations in the application of the law and put forward well-grounded opinions on the application of the law. Fourth, prevent the application of unfavorable sentencing circumstances, explore favorable sentencing circumstances, and put forward precise suggestions for sentencing declaration.
4 Conclusion: The Four Connotations of Refined defense
In the current era when refined defense is widely advocated, the industry has different understandings of the connotation of "refinement". In the author's view, refined defense is not merely about paying attention to details; it should at least encompass the following four aspects:
First, the refinement of the defense process. Refined defense first requires breaking down the defense process. Within the three stages of investigation, review and prosecution, and trial, key nodes should be further subdivided, and the work priorities, methods and contents of lawyers at each node should be clearly defined, so that the defense work is closely linked and progresses step by step. In terms of the investigation stage, it can be further divided into key nodes such as case filing, first interrogation, criminal detention, application for approval of arrest, approval of arrest, review of the necessity of detention, and conclusion of the investigation. Each link corresponds to different defense work. Take fraud cases as an example. During the investigation and verification stage after accepting the case and before filing it, lawyers can promptly assist the parties in negotiating with the victims, facilitating compensation and reconciliation, and fully utilize the rule of "deduction if returned before the case is discovered". Under the premise of controlling losses, they can minimize or even defuse criminal risks as much as possible.
Second, the refinement of evidence review. Evidence defense is the core of criminal defense. Refined defense is also reflected in a comprehensive, in-depth and systematic review of all the evidence in the case. For instance, the review of case files should be divided into two levels: rough review and meticulous review. Rough review focuses on quickly grasping the overall context of the case, the logic of the prosecution's charges and its proof system. Intensive reading focuses on the examination of the evidential capacity and probative force of individual evidence, as well as the analysis of the relationships among pieces of evidence. For instance, in terms of fact-finding, it is necessary to not only weaken unfavorable facts but also proactively construct favorable ones, ultimately forming an objective and independent fact-finding based on evidence by the defense attorney.
Third, the refinement of legal argumentation. Refined defense also requires lawyers to comprehensively and accurately identify the key points of dispute in the case at the application level of criminal law, conduct a clear and organized analysis of them, and provide in-depth and effective reasoning and argumentation. To this end, the defense attorney should comprehensively sort out the possible charges involved in the case, break down the constituent elements of specific crimes, compare and deeply argue the objective facts of the case with them one by one, and at the same time clarify the relationship of the number of crimes such as the conjunctions of legal provisions, imagined conjunctions, and associated crimes, and ultimately form a hierarchical and persuasive opinion on the application of criminal law.
Fourth, the refinement of sentencing opinions. The ultimate goal of refined defense lies in putting forward precise, reasonable and well-grounded sentencing opinions to safeguard the legitimate rights and interests of the parties to the greatest extent. On the one hand, it is necessary to comprehensively review the sentencing circumstances of the entire case and conduct in-depth arguments on whether the disputed circumstances are valid or not. On the other hand, quantitative sentencing methods should be employed. First, a reasonable starting point for sentencing should be determined. Then, the benchmark sentence should be set based on the amount of the crime and the circumstances of the crime. Finally, the benchmark sentence should be adjusted according to the sentencing circumstances, and a specific and clear sentencing opinion should be formulated. Accurate sentencing opinions can not only serve as an important reference for the parties to decide whether to plead guilty and accept punishment, but also form a solid foundation for defense negotiations and also provide a solid basis for subsequent effective negotiations between the prosecution and the defense.
Ultimately, refined defense is not merely about being "more serious" at the attitude level, but rather a systematic and professional defense approach, specifically covering four aspects: refined defense process, refined evidence review, refined legal argumentation, and refined sentencing opinions. For criminal defense lawyers, meticulous defense is a concentrated manifestation of professional competence and professional ethics. It is also an important path to promote effective negotiation between the prosecution and the defense and achieve effective defense under the system of leniency for those who plead guilty and accept punishment. For the parties involved in the case, the existence of refined defense means that they can obtain professional and definite legal protection in the complex and uncertain criminal legal risks, thereby safeguarding their own legitimate rights and interests to the greatest extent.
