Lawyer

Chapter 406 Chapter 422 423 424 (Merge a large chapter) This is a trap!

"Have you seen the reports on the Internet?" the male lawyer asked in a low voice.

"Well, I see. The domestic lawyer system has been reformed for so many years, so I wondered, when did we become national civil servants! I have to see how the procuratorate and the court explain it." Said with an unbelievable expression.

"Who said it wasn't! It's so messy. In order to get rid of the lawyer, he changed his identity. What a big enmity, we have to be careful when doing criminal cases in the future." The male lawyer sighed with emotion in a low voice.

Some of the surrounding lawyers were chatting, some were smoking, and everyone had only one purpose, to observe the case of Lee Myung-bak deliberately leaking state secrets.

At nine o'clock in the morning, the gate of the court opened, and people outside the gate walked in one after another.

In the courtroom, the judge was reading out the content of the first-instance verdict. Fang Yi glanced at the auditorium. The seats were full of good guys. Director Sun, Zhao Zhongcheng and Li Mingbo's wife were sitting in the first row.

……

"Next, the appellant, Li Mingbo, will read out the appeal petition or state the reasons for the appeal." The presiding judge is a woman in her forties with short hair that reaches her ears. serious.

"In my opinion, the facts identified in the first instance were wrong, and the law used was wrong. The reasons are as follows:
[-]. Although I let Li Youpeng read the copy materials of the case file, I did not let him copy the case file.

[-]. The dossier materials copied by Li Youpeng neither indicate the level of secrecy nor state secrets.After I copied the file, no one informed me in any form that the copied file was a state secret.

[-]. The appraisal conclusion that the criminal case file copied by us is a state secret has no basis in law and cannot be used as evidence.

[-]. I am an ordinary lawyer, not a national official, and the court of first instance was wrong to determine that I am a public official..."

Li Mingbo is a lawyer, and he communicated with Fang Yi about the defense plan before, so before the trial, he wrote down all the content of the defense he could think of, no matter whether it was justified or not, and planned to beat the teacher to death. With one punch to the point, he can be freed, this is his true thought at this time.

"Next, the appellant's defense lawyer will announce the reasons for the appeal," said the presiding judge.

"The defender believes that the original judgment found the facts unclear, the evidence was insufficient, and the law was wrongly applied. The appellant Li Mingbo did not constitute a crime, and requested the court to revoke the original judgment and acquit him according to law. The reasons for the appeal are as follows:
According to Article 390 of the "Criminal Law", if the staff of a state organ violates the provisions of the Law on the Protection of State Secrets and discloses state secrets intentionally or negligently, if the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are particularly serious, they shall be sentenced to three years More than seven years of fixed-term imprisonment.Those who are not staff members of state organs who commit the crime mentioned in the preceding paragraph shall be punished according to the provisions of the preceding paragraph.

[-]. According to the above-mentioned provisions, the subject of the crime of intentionally leaking state secrets should be an employee of a state organ. The appellant is not an employee of a state organ, but an ordinary lawyer. He is not a qualified subject for this crime at all. It is a factual error.

[-]. The case file materials copied by the appellant were not marked with any words of confidentiality, and no court staff informed the appellant that the case file materials copied involved state secrets, and the appellant was not asked to sign any confidential documents.

When the appellant copied the case file materials of the corruption case, the case had already been transferred to the court for trial. Whether the case file at this time is a state secret depends on whether the content of the case file involves state secrets.

The appellant was dealing with an ordinary corruption case, and it was heard in public, which did not involve state secrets at all, so the case file copied by the above-mentioned person does not belong to state secrets.

Therefore, the defender believes that the appraisal opinion issued by the secrecy agency that the dossier material is classified as a state secret at the confidential level should not be used as the basis for conviction in this case.There is insufficient evidence in this case.

Ask the court to acquit the appellant in accordance with the law.complete! "Fang Yi said.

"Appellant Li Mingbo, do you have any objection to the facts and charges identified in the first-instance verdict?" The presiding judge followed the procedure step by step.

"I have objections. I don't agree with the charges and facts found by the court of first instance..." Li Mingbo said.

At this time, he will definitely not admit it. If he admits himself, he will have to go to jail, his lawyer's license will also be revoked, and his career will be terminated.

"The prosecutor questioned the appellant about the facts identified in the first-instance judgment," said the presiding judge.

The two male prosecutors sitting on the public prosecutor's bench opposite Fang Yi frowned. Since they took over the case, they have been saying hello to the eight generations of ancestors of the two prosecutors in the first trial.

play it!Can a lawyer be a public servant?You pay wages!This logic is truly unprecedented, and there is no common sense at all!Drink too much!

Now that the case has been accepted, the procedure must go on and on. The leading male prosecutor can only pick him up and say rationally: "Appellant Li Mingbo, did you go to the court to review the papers by yourself?"

"Yes, I went by myself." Li Mingbo said.

"But according to the surveillance video of the filing court, you didn't go alone, there were two people who entered the gate of the filing court with you," said the male prosecutor.

"Yes, Li Youpeng and Li Yong went to the filing court with me at the time, but they were not present when the case file was copied. They have been waiting in the filing court." Li Mingbo said.

"After leaving the court, who else has read the case file of Li Wen's corruption case, have you allowed others to read it?" the male prosecutor asked.

"Li Youpeng borrowed it from me, but he returned it to me early the next morning." Li Mingbo said.

"Did you know that Li Youpeng copied the case file again?" the male prosecutor asked.

"I don't know." Li Mingbo said.

"Later, when you went to investigate and collect evidence, who went with you?" the male prosecutor asked.

"A trainee lawyer from our law firm went with me." Li Mingbo said.

"How did you find the witnesses in Li Wen's corruption case?" the male prosecutor asked.

"Li Youpeng took us there. Because we are not familiar with the local area, we need someone to lead the way." Li Mingbo said.

"You went all the way to find witnesses to investigate and collect evidence. Did it go well?" the male prosecutor continued to ask.

"It's going well. The parties are very cooperative." Li Mingbo said.

In fact, when Li Mingbo saw Li Youpeng looking for a witness, he was very familiar with the road, especially when there was a witness who lived in the village. Li Youpeng drove directly there and stopped at the door of his house.But the witnesses were all colleagues of his father Li Wen, and Li Mingbo thought that maybe Li Youpeng knew them before and visited them at home, so he didn't pay much attention.

"The witnesses involved in the case gave different testimony and evidence. Have you ever doubted the authenticity?" the male prosecutor asked.

"At the time, there were only me, our trainee lawyer, and a witness. I asked questions, and the trainee lawyer took notes, and then asked the witness to issue a handwritten testimony. I don't think there is any problem." Li Mingbo said.

He really doubted the authenticity of the witness's testimony, because what the witness said was exactly the opposite of the testimony in the case file, and what he said was very slippery, as if he had memorized it, but the testimony was indeed written by the witness, signed and fingerprinted It's not the same, so Li Mingbo didn't ask more.

"Has Li Youpeng talked to you about witnesses testifying?" asked the male prosecutor.

"No, he never mentioned it to me, nor did I tell him." Li Mingbo said.

Fang Yi knew the reason why the procurator asked this question, and Li Mingbo also knew that this was a pitfall. The procurator's questioning was actually to ask if it was your testimony that Li Mingbo ordered Li Youpeng to find a witness to falsify. If so, then it's okay Relying on the crime of obstructing testimony, even if the charges in this case cannot be confirmed, they can be prosecuted separately, accusing Lee Myung-bak of obstructing witnesses to testify.

After Li Youpeng was arrested, he took all the matter of privately copying the case files and finding witnesses to provide false evidence and testimonies on himself. He did not involve Li Yong and Li Mingbo, but only mentioned that Li Mingbo had lent him the case files to watch.

Moreover, several witnesses also stated to the public security organs that Li Youpeng was the only one who asked him to tamper with his testimony at that time, and he had never seen anyone else.

The prosecutor wanted to find a breakthrough from Li Mingbo, so he asked this question, but now it seems that Li Mingbo did not know about the obstruction of the testimony.

……

"Do the prosecutors, defenders, and appellants have any new evidence to submit?" asked the presiding judge.

"There is no new evidence." The three parties agreed.

"The court investigation is over, and the court debate is now underway. Before the debate, the court draws the attention of both the prosecution and the defense. The debate should focus on determining charges, sentencing and other controversial issues.

Let the appellant speak first. " said the presiding judge.

Li Mingbak still used the same set of words, but his words were more detailed and broader.As a lawyer, Lee Myung-bak must be able to speak better than the average defendant, which is normal.

"The defender of the appellant Li Mingbak made a statement," said the presiding judge.

"The presiding judge and judges: the defender believes that the appellant Li Mingbo, as the defense lawyer in the Li Wen embezzlement case, asked the defendant's relatives to consult the evidence materials of the case he copied in the court, which did not constitute the crime of intentionally leaking state secrets. The reasons are as follows:
[-]. The criminal object of the crime of deliberately disclosing state secrets

The first paragraph of Article 390 of the "Criminal Law" stipulates: "An employee of a state organ who violates the provisions of the Law on the Protection of State Secrets and discloses state secrets intentionally or negligently, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are particularly serious, he shall be sentenced to Not less than three years but not more than seven years of fixed-term imprisonment. '

It can be seen that the criminal object of the crime of intentionally leaking state secrets is state secrets, and in this case the appellant Li Mingbo asked Li Wen's relatives to consult the case evidence materials copied in the court, which are not state secrets.

[-]. The subject of the crime of deliberately disclosing state secrets

According to the provisions of Article 390 of the "Criminal Law", the subject of the crime of intentionally leaking state secrets is the staff of state agencies, as well as the staff of non-state agencies who know state secrets.

Li Mingbo, the appellant in this case, is a lawyer. According to the "Lawyer Law of the People's Republic of China", a lawyer is a "practice who provides legal services to the society", not a staff member of a state agency, nor a member of the system bound by the confidentiality regulations of the procuratorial department. Knowledge of state secrets.

Moreover, the confidentiality regulations of the court system do not define the evidence materials of the case as state secrets, so the appellant in this case naturally has no obligation to keep the evidence materials of the case as state secrets.

It can be seen that it was wrong for the court of first instance to identify the appellant Li Mingbak as an employee of a state agency with specific obligations.

[-]. The subjective elements of the crime of deliberately disclosing state secrets

The subjective element of the crime of intentionally disclosing state secrets is knowingly disclosing them as state secrets.Since the confidentiality regulations of the procuratorate and the court system are all secret documents, it is impossible for the appellant Lee Myung-bak to know these documents and their contents.

According to the State Secrets Law and the relevant confidentiality regulations of procuratorial organs, procuratorial organs at all levels should mark the confidentiality level and confidentiality period of litigation documents formed in litigation activities, and should notify relevant personnel of litigation documents that are not suitable for direct marking, and make registration records.

In this case, Li Mingbo, the appellant of this case, copied the case files of the Li Wen embezzlement case in the court, which did not indicate the confidentiality level and the confidentiality period, nor did the personnel of the court and the procuratorate inform Li Mingbo that he should perform the confidentiality obligation and make relevant registrations.

Therefore, it is absolutely impossible for the appellant Li Mingbo in this case to know subjectively that the case file materials copied in the court are state secrets, and Li Mingbo does not have the intention to commit a crime.

To sum up, Li Mingbo, the appellant in this case, asked the relatives of Li Wen (the defendant in the embezzlement case) to consult the case file materials he copied in court, which did not constitute the crime of deliberately disclosing state secrets.

The court is requested to acquit the appellant Li Mingbo in accordance with the law.complete! "Fang Yi said.

"Now it's up to the prosecutor to speak." The presiding judge stopped the pen in his hand and looked up at the public prosecutor's bench.

"The presiding judge and the judges: We believe that the appellant Li Mingbo privately showed the criminal case file materials he copied from the court to Li Youpeng, the son of the defendant Li Wen, which led Li Youpeng to find the witnesses involved in the case and persuade him to tamper with the evidence, which caused serious damage to the trial of the case. obstacles, leading to serious consequences.

The court of first instance determined the facts clearly and applied the law correctly, and requested the court to reject the appellant's claim in accordance with the law.complete. " said the male prosecutor.

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

"With regard to the defender's defense opinion, our views are as follows:
According to the "Regulations on the Specific Scope of State Secrets and Their Classes in Procuratorial Work" and its appendix "Regulations on Determining the Classification and Period of Confidentiality of Procuratorial Procedural Documents", the "Interrogation of the Defendant's Transcript" and the "Interrogation of the Witness's Testimony" are state secrets at the confidential level and are kept confidential. The time limit is stated as 'before trial'.

Article 20 of the Provisions No. [-] on the Specific Scope of State Secrets and Their Classification in Procuratorial Work stipulates that case files and materials transferred for review of arrests, prosecutions, and protests must be strictly registered and handed over.Records of reading files, supplementary investigation materials, defense outlines, procuratorial committee and collective discussion records, etc. shall be kept strictly confidential.It shall not be provided to unrelated persons without approval.

According to the above regulations, when the appellant Li Mingbo copied the case file materials, the Li Wen corruption case had not yet been heard in court, which was before the trial, and the case file materials copied by Li Mingbo included supplementary investigation materials, so the case file materials belonged to the confidential state secrets.

Although the appellant Lee Myung-bak is not a state official, he still constitutes the crime of intentionally leaking state secrets if he knows and leaks state secrets.complete! " said the male prosecutor.

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

"The presiding judge and the judges: the defender issued the following defense opinions based on the prosecutor's defense opinions and responses:
First, the procuratorate’s secrecy rules do not apply to lawyers.

The "Regulations on the Specific Scope of State Secrets and Their Classification in Procuratorial Work" and its annex "Regulations on Determining the Classification of Procuratorial Procedural Documents and the Period of Confidentiality" and other secrecy regulations of the procuratorial organs aim to make the people's procuratorates at all levels strictly abide by the relevant laws and regulations in handling cases. Confidentiality laws and regulations to maintain the security of state secrets and ensure the smooth progress of various procuratorial activities.This regulation applies to the case-handling personnel of the procuratorial organ and the personnel within the procuratorial organ who need to be in contact with the case due to their work.

Determining "interrogation of the defendant's transcript" and "interrogation of witness testimony" as confidential state secrets is mainly to ensure the smooth progress of the investigation work of the case accepted by the procuratorial organ. The purpose of the personnel who contact the case is to prevent relevant personnel from leaking case file materials and bending the law for personal gain.

According to Article 30 of the Criminal Procedure Law (amended in 30) No. 40, a defense lawyer may consult, extract, and copy the case file materials from the day the People's Procuratorate examines and prosecutes the case. (After the "Criminal Procedure Law" was amended in [-], the above article was changed from No.[-] to No.[-])

Therefore, during the review and prosecution stage, the procuratorate's confidentiality regulations do not apply to defense lawyers.

Second, after the case file is transferred to the court, if the defense lawyer consults, extracts, and copies the criminal factual materials according to law, and leaks them, it does not constitute the crime of leaking state secrets.

When the procuratorate initiates a public prosecution and the case files of the criminal case are transferred to the court, whether the criminal facts in the case files are state secrets depends on whether the criminal case involves state secrets and is a classified case.If the case involves confidentiality or there are confidentiality-related documents in the case, the confidentiality level and confidentiality period shall be marked on the confidentiality-related materials involved, and the personnel involved in confidentiality shall abide by the current and effective confidentiality regulations of the court system.

The Li Wen corruption case handled by the appellant Li Mingbo was just an ordinary corruption case and did not involve state secrets. Neither the word "secret" nor the level of confidentiality was marked.

In addition, after the defenders searched for relevant laws and regulations, the current confidentiality regulations of the court system do not include the materials of alleged criminal facts involved in cases other than those involving state secrets, including "interrogation of the defendant's transcript" and "examination of witness testimony" in the Inside, it is stipulated as a state secret.

In view of this, after the prosecution by the procuratorate and before the court session, the appellant Li Mingbo, as the defense lawyer in the Li Wen corruption case, consulted, copied, and copied the "interrogation of the defendant" and "examination of witness testimony" in accordance with the law. "The act of giving defendant Li Wen's relatives to watch does not constitute the crime of leaking state secrets.

If the appellant Lee Myung-bak uses the information in the case file to induce relevant witnesses to change their testimony against the facts or give false testimony, he will be suspected of committing the crime of obstructing testimony.However, the appellant did not have the above-mentioned acts, so it did not constitute the crime of obstructing testimony. After Fang Yi finished speaking, his throat felt a little dry, and he stopped and swallowed.

The reason why the crime of obstructing testimony was mentioned was mainly because the prosecutor had the intention of citing it here before. Fang Yi was afraid that the other party would not let him go, so he simply mentioned it in this case to dispel the prosecutor's idea of ​​prosecuting separately.

"Third, criminal factual materials are no longer state secrets after they are transferred to the court.

As mentioned above, although the confidentiality regulations of the procuratorate set the confidentiality period for criminal factual materials (such as "interrogation of the defendant's transcript" and "interrogation of witness testimony") as "before trial", this regulation is not consistent with the provisions of the "Criminal Procedure Law". Inconsistent regulations.

"Criminal Procedure Law" (amended in 30) No. [-] stipulates that defense lawyers may consult, extract, and reproduce the litigation documents and technical appraisal materials of the case from the day the people's procuratorate examines and prosecutes the case.From the day when the people's court accepts the case, the defense lawyer may consult, extract, and copy the materials of the criminal facts charged in the case...

The so-called "materials of criminal facts" mainly refer to various evidence materials including the defendant's confession and witness testimony.

According to the above regulations, once a criminal case is transferred to the court for prosecution, all evidence materials including the defendant’s statement and witness testimony must be publicly presented, read out and cross-examined in court. There is no longer any secret at all, and it no longer belongs to the state Secret, so the law does not prohibit lawyers from giving it to others to watch.

In 30, the amended "Criminal Procedure Law" changed the above article to No. [-]. The specific content is that defense lawyers may consult, extract, and copy the content of the case from the date when the People's Procuratorate examines and prosecutes the case. File materials.

At the same time, Paragraph 30 of Article [-] of No.[-] stipulates that from the date when the case is transferred for review and prosecution, relevant evidence may be verified with the criminal suspect or defendant.

In other words, after the revision of the Criminal Procedure Law in [-], defense lawyers can consult and copy case file materials, no matter whether they are in the review and prosecution stage of the procuratorate or after the court accepts the case, without distinguishing whether they are criminal facts or not.

It can be seen from this that it is incorrect to set the confidentiality period of criminal factual materials as 'before trial', which is in conflict with the "Criminal Procedure Law", and the "Criminal Procedure Law" should prevail.

The defender believes that after the court accepted the case, the defendant's confession, witness testimony and other criminal fact materials in the case file materials copied by the appellant Li Mingbo should not be classified as state secrets.

To sum up, the appellant Li Mingbo’s act of letting Li Wen’s relatives consult the evidence materials of the case during the process of handling Li Wen’s embezzlement case does not constitute the act of leaking state secrets, nor does it constitute the crime of intentionally leaking state secrets.complete. "Fang Yi said.

……

After the gavel sounded, the presiding judge announced a 10-minute adjournment, and the verdict will be pronounced in court later.

Fang Yi sat on the defense bench and drank mineral water gulpingly. He looked at his watch and saw that it was already eleven forty. At this time, his stomach was growling, and he was already fighting with each other before he knew it. One morning.

Fang Yi didn't dare to look at the people in the auditorium. He was afraid of seeing Li Mingbo's wife's hopeful eyes. Her eyes put more pressure on him than Mount Tai. He was afraid that the court would reject the appeal and uphold the original sentence.

Ten minutes later, the collegial panel entered the courtroom.

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(End of this chapter)