Lawyer

Chapter 367 Chapter 378 379 380 (Three chapters in one) Demo, I don't believe I can't argue with you!

"What if he is not sentenced to death?" Qian Wen said.

"That's better! Time will heal all pain. If time can't solve the pain between their father and daughter, our lawyers can't solve it even more. Just say the right words and do our lawyer's duty!" Fang Yi looked at Qian Wendao.

"Well, I understand." Qian Wen walked to the workstation thoughtfully.

"Hey! Lao Fang, have you started taking apprentices?" After Qian Wen left, Huang Yuanchao approached with a smile.

"Don't talk nonsense. I'm just working with Lawyer Qian." Fang Yi glanced at Huang Yuanchao and said.

"Lawyer Qian is actually pretty good. He is very patient with clients, but he lacks a bit of momentum and his ability to withstand pressure is a bit weak. He might not be able to hold back big clients, so he is not suitable for big cases." Huang Yuanchao said in a low voice.

"That's it... Actually, it depends on whether the grand master rewards the rice or not. If the grand master rewards the rice, it can be practiced in a year or two." Fang Yi hesitated.

"I see Xuan! By the way, I'll discuss something serious with you." Huang Yuanchao lowered his voice.

"What's the matter?" Fang Yi asked seriously.

"I'm going to talk about a legal consultant unit in a while, and it's a big client. When the time comes, you and Ma Yi will go with me, and you will say that I am on the same team. That's right, help me support the situation." Huang Yuanchao Hehe said with a smile.

"What should I do? That's all, no problem." Fang Yi readily agreed, "But you have to tell me in advance, so I can arrange the time."

"Ola!" Huang Yuanchao stretched out his right hand, made an OK gesture, then turned and went back to his work station.

A week later, at noon on a scorching summer day, Fang Yi and Qian Wen, who had lunch, walked out of a small restaurant not far from the court.

"Lawyer Qian, it's already like this, so don't worry about it anymore." Fang Yi glanced at Qian Wen, who was beside him with his head lowered and listless.

At 10:30 this morning, the trial of Xiao Wang's murder case started. The trial process was very simple. Encouraged by Fang Yi, Qian Wen gave a final defense speech. Of course, the defense was drafted by Qian Wen and revised by Fang Yi.

In the auditorium of the court, many media reporters came with long guns and short guns, planning to use today's murder case as a negative teaching material to warn the public that impulsiveness is the devil.Relevant departments are also preparing to take this opportunity to carry out a one-month purification live broadcast operation.

The scene of the trial was one-sided. The prosecutors kept accusing Xiao Wang of evil deeds, and described him as a heinous murderer, which was extremely harmful to society.It may be a public trial, because there are media reporters below, the procurator has a strong desire to perform, and the on-site effect is also very good.

Fang Yi argued hard, brought up the past, and described Xiao Wang as a victim who wore a cuckold like Wu Dalang and had no money, and pointed the root of the crime to the live broadcast.

In Qian Wen's final defense opinion, he recounted the victim's fault and the defendant's cooperation in the investigation after being brought to justice and other circumstances that are beneficial to the defendant's sentencing, and classified Xiao Wang's behavior as a murder of passion.

Hearing the prosecutor's displeasure, the court appointed a lawyer to provide legal aid services, just go through the motions and cooperate with it, why can't it stop talking!
The judge frowned, such a simple case, such a serious incident, a murder case!And it was my wife who killed..., the social harm is so great, is it necessary to spend so much talking?But that's good too, the media reporters in the provincial auditorium didn't have anything to write about.

After the trial was over, the presiding judge pronounced the sentence in court, and Xiao Wang was sentenced to death, to be executed immediately!
"Hey! That's the only way to go. I didn't expect you to hit the mark!" Qian Wen squinted his eyes and looked up at the sky, sighing.

"Is there any letter from Xiao Wang's daughter?" Fang Yi asked.

"I told her the court time two days ago, but she didn't reply to me, and I don't know if she came today." Qian Wendao.

There were quite a few people sitting in the auditorium, as well as media reporters. She didn't know Xiao Wang's daughter, so she didn't know whether Xiao Wang's daughter was in the auditorium.

"Well, when the verdict comes out, mail it to her directly. Remember to ask the judge for an extra copy of the verdict for ordering the file." Fang Yi was not interested in the follow-up matters, so he left the rest of the work to Qian Wen.

The next week, Fang Yi took the train to Lu Province. The hotel he chose was not far from the district court, and it seemed that he could walk for less than 10 minutes.Because at nine o'clock tomorrow morning, Peng Huanan's theft case will be held in the district court.

The sun at eight or nine o'clock in summer is not very comfortable for people. After the gate of the district court opened, Fang Yi and Peng Huanan's daughter-in-law Liu Fangzhi walked into the trial room of the court.

Although the trial was open, there were not many people in the auditorium. Liu Fangzhi listened nervously to the prosecutor reading the indictment.

"... After the defendant Peng Huanan terminated the labor contract with the technology company of the victimized unit, he still kept the keys of the workshop and warehouse, and took the opportunity to steal the property in the warehouse of the victimized unit, and took the stolen money as his own after the verification. After verification, the stolen property The total value is more than RMB [-].

The public prosecutor believes that his behavior has violated the provisions of Article 260 of the Criminal Law of the People's Republic of China. The facts of the crime are clear and the evidence is reliable and sufficient. He should be investigated for criminal responsibility for the crime of theft.According to the provisions of Article 170 of the "Criminal Procedure Law of the People's Republic of China", if a public prosecution is filed, please sentence it according to law. "Inspector Gao's tone was as cold as an ice cube.

"Defendant Peng Huanan, did you hear clearly the indictment read out by the public prosecutor just now? Do you have any objection to the criminal facts and charges charged in the indictment?" The presiding judge is a tall man with a square face.

"Listen clearly. I have no objection to the facts of the crime, but I have objection to the charges. The company gave me the keys to the workshop and warehouse. I am still in charge of the workshop affairs during the company's suspension of production, and the general manager also approached me and told me to wait for the company. After returning to work, I will still be the workshop director.

Until the time of the incident, the company did not take back the keys to the workshop and warehouse in my hand, and asked me to open the door several times to the workshop to check the condition of the machinery and equipment, and sold the old equipment.In fact, after the labor contract expires, I am still managing the workshop and warehouse, so I am not guilty of theft. "Peng Huanan argued.

A few days ago, when Fang Yi went to the detention center to meet with Peng Huanan, he informed him of the defense plan and answered his inquiries.Peng Huanan is a smart person, without Fang Yi's reminder, he naturally knows what to say in court.

"The public prosecutor can interrogate the defendant on the criminal facts charged in the indictment." The presiding judge said.

"Okay, presiding judge." Prosecutor Gao turned to look at Peng Huanan who was in the dock, and asked, "Defendant Peng Huanan, what position did you hold in the victimized unit before the victimized unit stopped production?"

"As the workshop director." Peng Huanan said.

"After the victim's unit stopped production, how did you arrange the workers in your workshop?" Inspector Gao asked.

"It's a long vacation! Later, they proposed to resign one after another, and basically all left." Peng Huanan said.

"After the labor contract expired, did you ask the company to renew the labor contract?" Inspector Gao asked.

"No, the company was half-dead at the time, so I didn't mention renewal." Peng Huanan said.

"You mentioned earlier that the general manager intends to let you continue to be the workshop director after returning to work. Has the company mentioned to you about renewing the labor contract?" Inspector Gao asked.

"I haven't mentioned it, but..." Peng Huanan said.

"Defendant Peng Huanan, you can answer whatever I ask you. You don't need to defend yourself, understand?" Prosecutor Gao interrupted Peng Huanan.

"Understood!" Peng Huanan said.

"After the labor contract expires, will the company still pay you social security and pay wages?" Inspector Gao asked.

"When the labor contract expired, the social insurance stopped! During the suspension period, the living expenses were paid, and no wages were paid. Later, the labor contract expired, and the living expenses also stopped." Peng Huanan said.

"How many locks are there in the workshop and warehouse? Have they been replaced?" Inspector Gao asked
"There are four locks in total, two of which have been replaced." Peng Huanan said.

"Who replaced it?" Inspector Gao asked.

"I changed it." Peng Huanan said.

"What was your motivation for changing the door locks of the gate and warehouse?" Inspector Gao pursued.

"At that time, I had no income and couldn't find a suitable job, so I wanted to use the things in the warehouse to exchange for some money to supplement my family." Peng Huanan was ashamed.

"You took out the items in the warehouse and sold them for money, before or after the expiration of the labor contract?" Inspector Gao continued to ask.

"It was after the labor contract expired," Peng Huanan said.

"Presiding Judge, I'm done asking!" Inspector Gao said.

"Does the defender of the defendant Peng Huanan need to ask the defendant questions?" asked the presiding judge.

"Need to ask a question." Fang Yi said.

"Defendant Peng Huanan, who has the keys to the workshop and warehouse?" Fang Yi asked.

"There are two big locks on the doors of the workshop and the warehouse. One workshop key and one warehouse key are considered as one set. There are two sets in total. The deputy director and I each get one set." Peng Huanan said.

"During the company shutdown, what is your main job before the labor contract you signed with the company expires?" Fang Yi asked.

"During the company's shutdown, all the workers in the workshop left. The deputy director and I took turns on duty, responsible for the management of the workshop and warehouse. Sometimes the company would bring investors over to check on the situation in the workshop. We were responsible for cooperating," Peng Huanan said.

"What about after the labor contract expires? Are you still staying in the workshop?" Fang Yi said.

"After the labor contract expires, the company will no longer pay me living expenses and social security, so I usually stay at home when I have nothing to do, and occasionally go to the workshop, and the company will call me if there is an emergency." Peng Huanan said.

"Did the company call you after the labor contract expired? I mean when you were at home?" Fang Yi asked.

"In the beginning, the company called me and the deputy director once, asking us to cooperate with the lawyers and accountants sent by the investor to count the belongings in the workshop, but then they disappeared.

Later, the deputy director went to work in a friend's company, and I saw that the company would not resume work, so I had evil thoughts..." Peng Huanan said.

"Did the company ask you to hand in the keys to the workshop and warehouse?" Fang Yi asked.

"No, at that time I had the keys to the workshop and warehouse, and the management of the company knew about it. After my labor contract expired, the company never asked me to hand over the keys," Peng Huanan said.

"Presiding judge, the defender's questioning is over," Fang Yi said.

"The next step is to present and cross-examine evidence. Do the prosecution and the defense and the defendant have any new evidence to submit?" asked the presiding judge.

"No." Sanfang said.

"The public prosecutor will present evidence next," said the presiding judge.

……

Fang Yi and Peng Huanan had no objection to the evidence presented by the public prosecutor, and Peng Huanan had no excuses for the fact of stealing the company's property, he admitted both.The focus of the dispute between the prosecution and the defense in this case is the qualitative issue of the case, that is, the charges.

"The facts of this case have been investigated clearly, the court investigation is over, and the court debate is now beginning. The court debate mainly revolves around the disputed facts that have not been certified by the court and how to apply the law based on the facts.

Let the public prosecutor speak first. " said the presiding judge.

"...The public prosecutor believes that after the expiration of the labor contract, the defendant Peng Huanan, for the purpose of illegal possession, stole the property of the victim's technology company, sold it, and took the stolen money as his own. His behavior has constituted the crime of theft, and the amount Huge, we recommend that the defendant Peng Huanan be sentenced to six years in prison. I ask the court to rule in accordance with the law. It’s over!” Prosecutor Gao said.

"The defendant, Peng Huanan, is defending himself," said the presiding judge.

"I didn't renew the labor contract with the technology company because the technology company stopped production at that time, and the general manager told me that I would still be the workshop director after the resumption of work, and he planned to renew the labor contract with me after the resumption of production.

I admit that I stole the company's property, but I took advantage of the convenience of being in charge of the keys to the workshop and warehouse door, which should be regarded as occupational occupation..." Peng Huanan argued.

"The defender of the defendant, Peng Huanan, will give his defense opinion." said the presiding judge.

"Presiding Judge, Judge:

Defenders believe that the nature of criminal cases should focus on substance rather than form. To judge whether a person is a unit employee, the substantive basis is whether he has certain job responsibilities or undertakes certain business activities in the unit. As for whether he has signed a contract with the employer The employment contract, and whether it is within the period of the employment contract are only part of the formal inspection content of reviewing and judging the identity of the subject.

In other words, whether the defendant Peng Huanan constituted the crime of occupational embezzlement should examine whether he actually assumed certain "responsibilities" in the victimized unit and used his duties to facilitate the illegal occupation of the victimized unit's property.

Returning to this case, although the criminal behavior of the defendant Peng Huanan occurred after the expiration of the labor contract, Peng Huanan was still actually exercising management duties at that time, and had management authority over the workshop and warehouse, which met the conditions for the crime of occupational embezzlement.

Therefore, the defender believed that Peng Huanan's behavior constituted the crime of occupational embezzlement. Given that the amount of his crimes was not high and he actively cooperated with the investigation by the public security organs, the circumstances of a mitigated punishment suggested that the defendant Peng Huanan be given a suspended sentence.complete. "Fang Yi said.

"The prosecutor can respond to the defender's opinion." The presiding judge said.

"...The public prosecutor believes that Peng Huanan's crimes occurred after the labor contract he signed with the victim technology company expired, and the two parties did not renew the labor contract. At this time, Peng Huanan was no longer an employee of the technology company, and the technology company was in a shutdown In addition, Peng Huanan has no "office" to exercise, therefore, Peng Huanan does not meet the main requirements of the crime of embezzlement, and should be punished as the crime of theft. Finished." Prosecutor Gao said.

"Defenders can respond to the prosecutor's opinion." The presiding judge said.

"Okay, the defense made the following comments in response to the prosecutor's comments and responses:
The defendant Peng Huanan, as the director of the workshop, was jointly responsible for keeping the keys of the workshop and warehouse with the deputy director, and he was responsible for keeping the property in the warehouse.

Although the labor contract signed by Peng Huanan and the technology company has expired, according to the evidence submitted by the public prosecutor, the general manager of the technology company and Peng Huanan both confirmed that the technology company plans to continue to hire the defendant Peng Huanan as the workshop director after the resumption of work.

Technology companies know the importance of workshop and warehouse keys. If they do not want Peng Huanan to continue working as a workshop director, they can take back the keys. But in fact, technology companies have never asked for the keys to be taken back. Still fulfilling the responsibility of keeping the property in the warehouse, so there is a de facto labor relationship between the two parties.

Therefore, the failure to renew the labor contract does not affect the labor relationship between Peng Huanan and the technology company, and Peng Huanan still meets the requirements of the subject of the crime of occupational embezzlement.complete. "Fang Yi said.

"Should the prosecutor continue to respond to the defense?" asked the presiding judge.

"A response is needed." Prosecutor Gao felt that he had encountered a difficult opponent: "We believe that the defendant Peng Huanan did not have independent management rights over the embezzled properties. It should be defined as the crime of theft, not as taking advantage of one's position."

"The defender can respond to the prosecutor's opinion." The presiding judge said.

"Okay, in response to the prosecutor's comments, the defense responds as follows:
The defenders believed that establishing the crime of occupational embezzlement objectively requires the use of the convenience of the position, that is, the defendant Peng Huanan took advantage of the convenience of managing the property of the unit to illegally take the property of the unit as his own.

The "management" we talk about means that the actor is directly responsible for the custody, handling, and use of the property of the unit, and also has a certain right to dispose of the property of the unit.

In practice, in order to realize the company management requirements of mutual restraint and mutual supervision, the control, disposal and management rights of the property of the unit are often exercised by multiple people. supervision.

Therefore, after the expiration of the labor contract, the defendant Peng Huanan's management authority over the technology company of the victimized unit still covers the entire scope of his duties when he was in office (workshop director), and the convenience arising from this management right will not be due to the existence of other common The manager is affected, and his behavior of using the convenience of management power to steal the property of the victim unit does not affect the determination of "using the convenience of his position".

In this case, the keys to the workshop and warehouse gates of the technology company were kept by the defendant Peng Huanan and the deputy director of the workshop respectively.Although the management power is jointly exercised by the workshop director and the deputy director, Peng Huanan's management authority over the property in the workshop warehouse is not reduced because of the existence of a co-manager.Therefore, the defendant Peng Huanan should constitute the crime of occupational embezzlement. "Fang Yi said.

The presiding judge wanted to stop here, but seeing that Prosecutor Gao seemed to have something to say, he continued: "The prosecutor can continue to respond to the defender's opinion."

"Okay, presiding judge. We believe that in this case, the defendant Peng Huanan used the most common method in theft crimes—picking the lock. This just shows that the defendant Peng Huanan's behavior of stealing property from the warehouse has exceeded the limit of 'taking advantage of his position'." Therefore, this case should be classified as the crime of theft." Prosecutor Gao was dissatisfied, let's make a small sample, I don't believe that I can't argue with you.

"Defenders can continue to respond to the prosecutor's opinions." The presiding judge felt that the debate between the two was very interesting, the reasoning was not clear, the debate was clear, and it was convenient to write the judgment later.

"Okay, presiding judge. What the prosecutor said just now is the special feature of this case.

The defendant, Peng Huanan, used the two keys he kept to open the big lock and simultaneously pried open the other two big locks to steal property from the warehouse of the technology company of the victimized company.

The defender believed that there were four locks in the workshop and the warehouse. In the process of stealing property, the defendant Peng Huanan used the two keys he was responsible for keeping to open the two locks, and then entered the warehouse to steal property by means of common lockpicking methods. It seems that the lockpicking behavior played a major role, but judging from the entire implementation process, the key to defendant Peng Huanan's smooth realization of the purpose of illegally occupying the property of the unit was to take advantage of his position as the workshop director.

To put it bluntly, if the defendant Peng Huanan did not take advantage of his position, his crime would not have been successful.Because the workshop was in a state of shutdown at the time of the incident, the entry and exit of non-unit personnel was restricted by the guards, and it was precisely because the defendant Peng Huanan had served as the workshop director and held the keys to the workshop and warehouse. After his labor contract expired, He is still performing the duties of the workshop director, so he can drive in and out of the factory area many times after that and commit criminal acts.This is essentially different from the perpetrator in the crime of theft, who is familiar with the environment of the crime.

It can be seen that the convenience of the defendant Peng Huanan's position is the main factor for the success of his crime, which also determines his essential difference from those ordinary lockpicking and theft.Therefore, the behavior of the defendant Peng Huanan should still be occupational occupation. "Fang Yi said.

"Does the prosecutor need to continue to respond to the defender's opinion?" The presiding judge looked at Prosecutor Gao.

"Thank you, presiding judge. According to Article 270 of the "Criminal Law", the description of the crime of embezzlement of position is: "The staff of a company, enterprise or other unit take advantage of their position to illegally take the property of the unit as their own..."

This law does not specify the specific behavior of the crime of embezzlement. We believe that the behavior of the crime of embezzlement described in this article should not include the behavior of theft.Therefore, the behavior of the defendant Peng Huanan should still be classified as the crime of theft. "Prosecutor Gao was a little out of his wits, and although he was upset, he couldn't find a better point to refute.

"Defenders can respond to the prosecutor's opinion." Regardless of what the prosecutor thinks, the presiding judge listened with gusto and found it quite interesting.

"The defender believes that the method of stealing secrets is also one of the forms of embezzlement in the crime of occupational embezzlement. Although Article 270 of the "Criminal Law" does not provide detailed regulations on the means of behavior in the crime of occupational occupation, it does not prevent us from drawing the above conclusion. The reasons are as follows :
According to the Interpretation of Several Issues Concerning the Application of Law in Handling Criminal Cases Violating the Company Law of Bribery, Embezzlement, and Misappropriation issued by the Supreme People's Court in [-], the term "embezzlement" was clarified, which means that the actor uses embezzlement, embezzlement, The act of stealing, defrauding or illegally occupying the property of the company or enterprise by other means.

Although the above interpretation was abolished in January [-], we can still see the Supreme Court's understanding of the term 'embezzlement' in the crime of occupational embezzlement.

In addition, compared with ordinary property crimes such as theft and fraud, the crime of occupational embezzlement is special in that it takes advantage of the convenience of the position, which not only infringes on the property rights of the victim unit, but also violates the employer’s requirements for the perpetrator to be diligent and responsible. As for the specific means of implementation, I believe that as long as the infringement of property is carried out by taking advantage of the convenience of the position, whether it is secret theft, fraud, or other means, it will not affect the determination of the perpetrator's infringement of the property rights of the victim unit. One of the reasons why Article 270 does not enumerate the specific behavior.

There are many forms of embezzlement behavior in the crime of occupational embezzlement, and there is no need to restrict the specific behavior methods implemented by the perpetrator. As long as the perpetrator takes advantage of his position and takes the property of the victim unit as his own, it is an act of occupational embezzlement Way.

Therefore, the defendant's misappropriation of the unit's property by means of secret theft should be identified as occupational misappropriation.complete. "Fang Yi said.

……

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(End of this chapter)