Lawyer

Chapter 432 What?There will be additional punishment!

Two days later, Fang Yi called the former procurator in charge of Zou Guang's case to inquire about the protest, because the communication between the two parties was smooth and the other party did not hide anything. The charge was wrong, and the sentence was relatively light. It is possible that the city procuratorate will change its opinion on the protest.

Fang Yi's heart sank after hearing this, it seems that he needs to prepare well for the second trial.

Because the case was relatively simple, the procuratorate's protest and the defendant's appeal focused on the charges and sentencing, and the two parties had no dispute over the facts of the case. Therefore, the Intermediate People's Court quickly arranged for a hearing.

On the day of the trial, Zou Daliang also came. He sat in the public gallery, waiting for the final verdict like grass growing in his heart.

……

"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 prosecutor speak first. " said the presiding judge.

Where there are both protest and appeal cases, the prosecutor should speak first, followed by the appellant and defender.

"Presiding judge, judge: We believe that the original judgment was wrong and the sentencing was inappropriate. The reasons are as follows:
In this case, the defendant, Zou Guang, obtained the trust of the victim by fabricating facts. The victim voluntarily handed over the mobile phone and waited at the same place. The defendant left the scene openly with the consent of the victim. Sanctions have already been imposed.

The defendant did not commit the theft by taking advantage of others' surprise and fleeing secretly, so this case should be determined as a crime of fraud. In addition, the defendant Zou Guang constituted a repeat offender and should be given a heavier punishment. The original judgment was inappropriate.It is recommended that the court change the charge and sentence the defendant to two years in prison.complete. " said the inspector.

After hearing the prosecutor's opinion, Zou Darliang in the auditorium immediately became nervous, what?One and a half years is not enough, and the sentence will be increased to two years!
The appellant, Zou Guang, carried over the rhetoric from the first instance, pleaded guilty and accepted the punishment, affirming that the court would reduce his punishment.

"The defender of the appellant Zou Guang issued a defense opinion." The presiding judge said.

"The presiding judge and the judges: We believe that the court of first instance mischaracterized the case, and the sentence was too heavy. This case was caused by the victim's misunderstanding and property loss, which conforms to the essential characteristics of the crime of fraud, and should be classified as a crime of fraud. The reasons are as follows:
[-]. The court of first instance held that 'the victim only disposed of the "possession" of the mobile phone and other property due to being deceived, rather than its ownership, so it should not be determined as a crime of fraud." This view is wrong.

The defender believes that in the case of a crime of fraud, as long as the victim transfers property or property interests to the perpetrator or a third party, it can be determined that the victim has acted as a disciplinary action.Therefore, the object of disposition can be ownership or possession.analyse as below:
First, the object of punishment in the crime of fraud can be possession, not necessarily ownership.

Under normal circumstances, there is no doubt that the owner has the right to dispose of the property, but under special circumstances, the possessor also has the right to dispose of the property.

For example, in the situation where the actor pretends to be the owner to claim the lost property, the person who picks up the lost item only temporarily possesses the lost item and does not enjoy the ownership. established.

Second, if the owner falls into misunderstanding and transfers possession, it can also be punished as a crime of fraud.

Under normal circumstances, the owner will voluntarily dispose of the ownership of the property held by him if he falls into a misunderstanding.However, under special circumstances, the owner only disposes of the possession, and the disposition in the crime of fraud can also be established.

For example, A tells B that he wants to hold a painting exhibition, and wants to borrow a painting of B for the exhibition, but A sells the painting behind B's back, and then flees with the money. The object of punishment when the owner B lends the painting is limited to the possession of the painting rights, not ownership.But A still constitutes the crime of fraud.

Third, the perpetrator can completely infringe on the ownership of the property through the victim's disposition of the possession right.

In this case, the object of the victim's punishment is only the possession of the mobile phone, not the ownership.Each victim has ownership of the mobile phone, and he can transfer the ownership of the property to the appellant, and can also transfer the possession of the property to the appellant.

At the time of the incident, the victims only transferred the possession of the mobile phone to the appellant, but the behavior of the appellant Zou Guang has violated the integrity of the victim's property ownership.Therefore, although the victim only transferred the possession of the mobile phone, it did not affect the establishment of the crime of fraud.

[-]. The court of first instance held that 'possession refers to de facto domination, including only domination within the scope of physical domination', and the defender believed that this judgment was wrong.

We believe that domination includes not only physical domination, but also social conceptual domination.

In this case, when the victim and the appellant were at the scene of the crime, even if the appellant directly held the victim’s mobile phone, from the public’s understanding, it can still be considered that the victim’s possession of property is only a situation of lax possession.At this time, the possession and control relationship of the mobile phone has not been transferred legally, and the victim has not punished the mobile phone.

(Possession relaxation: The theory is too abstract, explain with examples: For example, when dining in a restaurant, the waiter brings a plate of dishes to the table. Although customers directly control the plates and chopsticks physically, from the perspective of the public, customers are When the plates and chopsticks are used in the restaurant, the restaurant still occupies the plates and chopsticks, which is lax occupancy.)
However, if the perpetrator takes the property away from the scene and the victim does not stop it, it should be considered that the possession and control relationship of the property has changed.

In this case, after the victim handed over the mobile phone to the appellant Zou Guang, the victim still possessed the property at the scene, and the victim could request the appellant to return the property at any time, which was only a situation of lax possession.

When the appellant Zou Guang left the scene with the victim's mobile phone on the grounds of driving a police car, etc., the victim did not request the return of the mobile phone, but acquiesced to the appellant's departure from the scene, which enabled the appellant to fully control the property. At this time, the appellant should be found Obtained legal possession.

If the appellant flees secretly after getting the victim's mobile phone, it constitutes the crime of theft; identified as robbery.

But the appellant in this case did not do so.After the victim knew that the appellant was going to leave the scene with the mobile phone, the victim did not express any objection, and some victims even explicitly agreed.

When the appellant took the mobile phone away from the scene, the reason why the victim did not object, but acquiesced and agreed to the appellant’s taking away the mobile phone, was entirely due to the deception of the appellant, which was in line with the essential characteristics of the crime of fraud, so this case should be classified as a crime of fraud .

In addition, according to the case file materials provided by the public prosecutor, the appellant truthfully confessed his crime after arriving at the case, and voluntarily confessed to the same crime that the public security organs have not yet grasped.In view of this, the court is requested to impose a lighter punishment on the appellant in accordance with the law, and instead sentence the appellant to one year in prison.complete. "Fang Yi said.

The one-year sentence was discussed with Zou Daliang, and Zou Guang also agreed with this sentence. Although he didn't want to go to prison, he had committed a mistake and had to bear the corresponding consequences.

……

(End of this chapter)