Lawyer

Chapter 163 Don't Be Too Optimistic

At this moment, the waiter began to serve dishes one after another, and the three of them chatted while eating.

"Mr. Yuan, have you brought the first-instance judgment and relevant case materials?" Fang Yi asked.

He pondered: Since Lawyer Zhao and that partner have already gone in, and Yuan Changzheng came all the way, this case might really continue.

"I brought it, but I only have the judgment of the first instance, I don't have the protest. I heard about the protest from lawyer Zhao. After the procuratorate's protest, I entrusted him to visit my son in the detention center.

I want to hear your opinion and see if the second trial will change the sentence. "Yuan Changzheng said as he took out a file bag, which was thick and contained a lot of documents.

After Fang Yi took the file bag, he pulled out the case materials inside: "The county court believed that Yuan Wei had a good attitude of pleading guilty, actively compensated, and obtained the victim's forgiveness, so the punishment can be mitigated.

But according to what you just said, the procuratorate disagrees with the court's judgment and puts forward two protest opinions:
Article [-], the procuratorate believes that the first-instance judgment was inappropriate.

The procuratorate believes that Yuan Wei, who defrauded a huge amount, partially compensated the victim and obtained an understanding after the trial, which can be considered as a "lighter punishment" as appropriate, and should not be "mitigated".In the absence of statutory mitigating circumstances, the first-instance court's mitigation of Yuan Wei's punishment was obviously inappropriate, and the procuratorate believed that Yuan Wei should be sentenced to more than three years in prison. "

After finishing speaking, Fang Yi picked up a settlement agreement and asked: "Mr. Yuan, the settlement agreement states that the compensation will be paid in installments, 50.00% will be paid first, and the balance will be paid after the court's judgment takes effect. The first compensation will be paid to Yet?"

"Yes, I will give it after signing the settlement agreement." Yuan Changzheng said.

"Why didn't you pay in one lump sum and pay in installments?" Fang Yi asked.

"The main reason is that I am afraid that the other party will regret it after getting the money, so as to restrain the other party. At that time, I consulted Lawyer Zhao, and he said it was OK before I signed it. Is there any problem?" Yuan Changzheng said.

"Well, there is indeed a problem.

Article [-] of the Interpretation of the Supreme People's Court on the Application of the "Criminal Procedure Law of the People's Republic of China" stipulates that the content of compensation for losses stipulated in the settlement agreement shall be performed by the defendant immediately after the agreement is signed.The so-called immediate performance means that after the agreement is signed, it must be performed in one go, and payment cannot be made in installments.

Article [-] of the Interpretation stipulates that in cases where a settlement agreement is reached, the people's court shall impose a lighter punishment on the defendant; if the conditions for the application of a non-custodial sentence are met, a non-custodial sentence shall be applied; if the statutory minimum penalty is still too heavy, The punishment may be mitigated; if it is considered that the circumstances of the crime are minor and do not require a criminal punishment based on the overall case, the criminal punishment may be exempted.

In other words, if the settlement agreement agreed to pay in installments, and only part of the compensation was paid during the trial, the court should not apply Article [-] of the Interpretation to reduce the defendant's punishment.From this point of view, there is nothing wrong with the Procuratorate's protest. "Fang Yi explained.

Although Yuan Changzheng didn't quite understand the legal clauses that were written in words, he understood that he should not pay the compensation in installments, because in this case, the court would not be able to apply Article [-] of the above interpretation to reduce Yuan Wei's criminal sentence. punishment.This means that the second trial may change the sentence and extend Yuan Wei's sentence.

Hearing what Fang Yi said just now, Yuan Changzheng regretted it for a while. Apart from hating himself, he hated Lawyer Zhao even more, because Lawyer Zhao drafted all the documents at that time.

"Lawyer Fang, is there a big difference between the lighter punishment and the mitigated punishment you mentioned just now? Could it be that the court's decision is really wrong?" Yuan Changzheng wanted to find loopholes in the law, but he didn't know the law very well. Fang Yi.

"Well, the difference is quite big. Lighter punishment refers to the application of a lighter type or smaller punishment to the defendant within the statutory punishment type and range. Mitigating punishment refers to the punishment below the legally lightest punishment type and minimum punishment range. Give punishment.

Let me give you an analogy. For example, according to the provisions of the Criminal Law, the defendant should be sentenced to fixed-term imprisonment of not less than three years but not more than ten years. Three or four years in prison, which is a lighter punishment.

If the defendant has the circumstances to mitigate the punishment, the court may sentence the defendant to a fixed-term imprisonment of less than three years, such as one and a half or two years.

That's the difference. "Fang Yi explained.

"Does the settlement agreement have to be paid immediately before the mitigating penalty can be applied? Is there any other flexible method?" Yuan Changzheng's business mind quickly activated. For businessmen, there is nothing that cannot be flexible, even if only If there is a slight possibility, he will try it.

"According to the guiding spirit of the Supreme Court, the reconciliation system has three principles: first, the principle of voluntariness; second, the principle of immediate and comprehensive performance; third, the principle of estoppel.

In fact, from the day when the settlement agreement signed by you and the other party becomes effective, the other party can no longer go back on his word. Even if the other party really goes back on his word, the court will not support it.So your worries at the beginning are unnecessary.

Your question deals with the second principle, the principle of immediate full performance.

To be honest, in judicial practice, there are differences among courts on issues such as whether the compensation agreed in the criminal settlement agreement can be postponed or performed in installments.This may also be why the county court applied a reduced sentence and sentenced your son to a year and six months in prison. "Fang Yi explained.

"According to what you said, the judgment of the court of first instance may not necessarily be reversed by the court of second instance, and the court of second instance may still uphold the original judgment, isn't that true?" After hearing Fang Yi's words, Yuan Changzheng felt a little more at ease.

"There is such a possibility, of course there is a lot of luck involved.

However, according to the guidance of the Supreme Court, if the delay in performance and the installment of the compensation agreed in the settlement agreement are allowed, the court will base the court's lenient punishment on the defendant on the basis of uncertain facts. Once the defendant receives a lenient punishment Afterwards, the court of second instance cannot aggravate its punishment if it refuses to perform or fails to fully perform the obligation of compensation, limited by the principle of no additional penalty for appeal.

In addition, since it is a settlement agreement reached between the parties, it does not have the effect of applying for enforcement, which will undoubtedly damage the authority of the referee and make it difficult to effectively protect the legitimate rights and interests of the injured party.

So I can't say whether the court of second instance will change the sentence, but I suggest that you plan for the worst and don't be too optimistic. "Fang Yi said.

"Well, I understand what you mean. We were too optimistic during the first trial. As a result, my wife still can't accept the fact that my son was sentenced." Yuan Changzheng understands that Fang Yi's words are right, and there may be exceptions in everything. situation, be well prepared.

(End of this chapter)