Lawyer

Chapter 855 Lao Meng's Defense

Seeing Meng Guangda like this, Yu Wendong knew that he was about to start "teaching" again.He was really afraid that the judge would be disturbed by what he heard, so he interrupted him directly and asked him to give his defense in a concise manner.

It is said that Meng Guangda committed this mistake when he was just practicing, and was reprimanded by the junior judge. That time, Meng Guangda lost face very much, and the parties had a lot of opinions on him.

Since then, although Meng Guangda has conducted self-reflection and self-criticism, and his defense style has improved a lot and is more down-to-earth, the literati spirit in his bones has always been there, but he has become more restrained.

Meng Guangda paused, and continued to express his defense opinion: "In this case, the defendant Zhang Han's purchase of the stolen goods by Yang Zugang and others from Yan Yunzhe, the criminal who sold the stolen goods, does not constitute an accomplice to the theft. The reasons are as follows:
[-]. Before the theft was committed, there was no collusion between defendant Zhang Han and Yang Zugang.

Joint crime requires that the joint criminals must have a common criminal intention, that is, the joint criminals have a certain intention to communicate, and realize the social harmfulness of their behavior, and agree to participate in the joint crime.

The defender believes that this kind of intentional communication must occur before the criminal act is committed (pre-conspiracy).

In other words, before the criminal act is committed, the co-offenders have already communicated with each other about the content of the crime, such as the determination of the criminal intent, the specific division of labor for the implementation of the criminal act, and the handling of criminal proceeds.

The Supreme People's Court once pointed out in the "Telephone Answer on How to Understand "Prior Collusion" in the Crime of Harboring and Covering up as a Joint Crime" (December 1985, 12): Collusion beforehand refers to harboring and sheltering criminals. Those who plan or conspire with criminals who are harbored or sheltered before committing crimes, and agree to harbor or shelter criminals after committing crimes, shall be treated as joint crimes.Those who only know that the perpetrator is going to commit a crime and harbor or cover up afterwards, or who know in advance that the perpetrator is going to commit a crime but fail to report the crime, and harbor and shelter the criminal after the crime has occurred, should not be treated as joint crimes, but constitute harboring alone. 28. The crime of concealment (the "Criminal Law Amendment of the People's Republic of China (2006)", which came into effect on June 6, 29, changed the crime to: the crime of covering up, concealing criminal proceeds, and crime proceeds).

The determination of prior collusion in the above reply is consistent with the provisions of the General Provisions of the Criminal Law on the subjective elements of a joint crime. Therefore, the defender believes that the spirit of the above reply can also be used to identify the "pre-conspiracy" of the criminal who sells stolen goods and the thief.

That is to say, if the person who sells the stolen goods plans or conspires with the perpetrator of the theft before the theft, and agrees to conceal, transfer, purchase, sell the stolen goods on behalf of others, or cover up or conceal the stolen goods in other ways after the theft, it is a joint crime. Aiding behaviors belong to different divisions of joint crimes and should be punished as accomplices of the crime of theft.

If there is evidence to prove that the person selling the stolen goods has formed a long-term, stable, and tacit cooperative relationship with the perpetrator of the theft, after the property is stolen, according to the prior agreement or tacit agreement, the perpetrator of the theft harbors, transfers, purchases, sells the stolen goods on behalf of the perpetrator, or in other ways Cover-ups and concealments should also be deemed to be pre-existing collusion between the two parties and punished as accomplices.

In this case, before Yang Zugang and others committed the theft, Zhang Han never had any direct or indirect prior contact with Yang Zugang and others regarding the purchase of stolen goods.

Yan Yunzhe contacted Zhang Han to buy the stolen cables because he had insufficient funds to buy all the stolen goods, so he contacted the defendant Zhang Han on a temporary basis. Yan Yunzhe's behavior was his own.

Before and during the theft, Yang Zugang and others did not know that Zhang Han had purchased the stolen cable from Yan Yunzhe.

Therefore, the prior agreement between Zhang Han and Yan Yunzhe to purchase stolen cables should not be considered as the prior collusion between Zhang Han and Yang Zugang and other perpetrators of theft.

In addition, the evidence on file in this case cannot prove that the defendant Zhang Han formed a long-term, stable and tacit cooperative relationship with Yang Zugang and others regarding the acquisition of stolen goods.

It can be seen from this that the defendant Zhang Han did not have any intentional contact with Yang Zugang and others before and during the implementation of the theft. Therefore, Zhang Han did not have the subjective elements to establish an accomplice in the joint theft.

[-]. The behavior of the defendant Zhang Han did not encourage or support Yang Zugang and others to commit the theft.

An accomplice in a joint crime must have provided assistance to the defendant before or during the crime, which is the time limit requirement for establishing an accomplice.In general, there are two types of accomplices:
The first is psychological assistance, which mainly refers to motivating the perpetrator's behavior, giving advice, and agreeing to help escape afterwards, etc., so as to strengthen the defendant's criminal determination or enhance the perpetrator's sense of psychological security during the crime.

The second is physical assistance, which mainly refers to providing criminal tools and creating criminal conditions for the defendant.

In this case, the defendants Yang Zugang and others were the perpetrators of the theft at the scene, and the defendants Yan Yunzhe and Zhang Han did not go to the scene of the theft to carry out the theft, so Yan Yunzhe and Zhang Han were not the culprits in this case.

When the defendant Yan Yunzhe contacted Zhang Han, Zhang Han had clearly learned that the stolen goods he was about to acquire were cables.Therefore, before Zhang Khan acquired the stolen goods, he had already realized that someone was about to commit the theft.

It can be seen that before Zhang Han bought the stolen goods, the criminal determination of Yang Zugang and others to steal had been formed long before that, and Zhang Han's behavior did not produce any psychological help to this determination.

Before and during the theft, Yang Zugang and others did not know that Zhang Han was going to buy the stolen goods, and Zhang Han's behavior did not give Yang Zugang and others some psychological encouragement during the theft.

It can be seen from the above that Zhang Han did not provide psychological assistance to Yang Zugang and other perpetrators in this case.

During the theft by Yang Zugang and others, Zhang Han did not go to the scene of the theft, nor did he provide them with tools or create conditions for the crime.

When Zhang Han brought cash to the transaction site to buy the stolen goods from Yan Yunzhe, the crime of theft by Yang Zugang and others had already been completed (accomplished).Zhang Han’s act of buying stolen goods from Yan Yunzhe with cash took place after Yang Zugang and others had stolen and transferred the stolen goods, so this behavior was not an act of aiding Yang Zugang and others in their theft.

In view of this, Zhang Han did not provide physical assistance to Yang Zugang and others in this case.

To sum up, the defendant Zhang Han did not conspire with Yang Zugang and others in advance. During the theft process of Yang Zugang and others, Zhang Han subjectively did not have the criminal intention to help Yang Zugang and others carry out the theft; Behavior, neither psychological help nor physical help was implemented.Zhang Han's purchase of stolen goods was not an act of assisting Yang Zugang and others in stealing, but a simple act of selling stolen goods afterwards. Therefore, his behavior was not an act of assisting in joint theft and did not constitute an accomplice to theft.

Although the behavior of the defendant Zhang Han did not constitute the crime of theft, but he bought the stolen goods knowing that Yang Zugang and others had stolen them. His behavior has violated the provisions of Article 312 of the "Criminal Law", and Zhang Han's behavior should be determined to constitute the crime of concealing criminal proceeds .

In view of the truthful confession of the defendant Zhang Han after his return to the case, and the fact that he showed remorse, the defender suggested that the defendant Zhang Han should be sentenced to probation.complete. "Meng Guangda's mouth was dry, and he didn't know if the judge could accept it.

……

(End of this chapter)