Lawyer

"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. "The presiding judge looked at the public prosecutor's seat.

"Presiding judge, judge: The public prosecutor believes that the defendant, Jin Dachun, used the pretext of exorcising ghosts and illegally occupying other people's property to defraud the victim of money. The facts are clear, the evidence is reliable and sufficient, and the defendant has constituted a crime of fraud. And the amount of fraud is huge. , it is recommended that the defendant be sentenced to eight years in prison. It's over." The female prosecutor spoke confidently.

……

"Defendant's defender expresses his defense opinion." The presiding judge followed the procedure step by step.

"The presiding judge and judges: The defender does not disagree with the criminal facts charged by the public prosecutor, but disagrees with the nature of this case. The defendant's behavior in this case does not constitute a crime of fraud, but should constitute a crime of theft. The reasons are as follows:

[-]. In this case, the defendant not only used deception (expelling ghosts and fooling people), but also used the means of stealing (substitution) to embezzle other people’s property. Whether the nature of the defendant’s behavior in this case is theft or fraud depends on the behavior Stealing or cheating is the decisive method for people to obtain property.

The defender believes that in the crime of fraud, the disciplinary actions of the deceived must be based on misunderstandings, and the misunderstandings are due to the perpetrator's deceitful behavior.

In general fraud cases, the victim’s awareness of disposing of property has three characteristics:

1. Based on this misunderstanding, the victim has the intention to dispose of specific property.

2. The victim "voluntarily" disposes of specific property under the guidance of misunderstanding.

3. The victim clearly knows that disposing of specific property is the transfer of control over the property.

The act of disposal means transferring the property to the defendant or a third party for possession, that is, the perpetrator or the third party actually controls the property, and does not require the deceived person to dispose of the ownership of the property to the defendant.

In the case of theft, the victim has neither the awareness nor the behavior to dispose of the property.

In this case, the purpose of the temporary delivery of property by the victim Niu Tianyu and others was to allow the defendant to use the property to ask the gods to "exorcise ghosts". within legal control.

Of course, the victim has actual control over the property in his home. Even if the victim handed over the property to the defendant, according to the general concept of society, the victim still dominates and controls the property, that is, the victim temporarily handed over the property without transferring the control of the property, let alone The ownership of the property is transferred, so this kind of delivery cannot be regarded as having the intention and act of disposing of the property.

In this case, although the property is temporarily held by the defendant, subjectively, the victim did not intend to allow the defendant to obtain control of the property, and objectively, the defendant did not obtain actual control of the property. He used the property to ask the gods to 'exorcise ghosts' and did not agree to the defendant taking away the property. Therefore, although the victim was deceived, he did not have the intention and behavior to transfer the property to the defendant for domination and control.

The reason why the defendant obtained the dominance and control of the property was entirely due to the later behavior of subcontracting and stealing secrets.

The public prosecutor accused the defendant's behavior of constituting the crime of fraud, that is to say, the defendant established the consummation of fraud when he received the property, even if the defendant returned the property to the victim afterwards, it was also an act of returning the property after the consummation of fraud, which is inconsistent with the facts of this case , is also not legal.

[-]. The defendant's illegal acquisition of property was realized by the secret stealing method of subcontracting.

The defendant used "casting spells to exorcise ghosts" to induce the victim to give the property as a prop to the defendant, which is in the nature of fraud, but the defendant did not rely on the fraud to directly obtain the property, but it was only to create conditions for the subsequent secret theft.

During this process, the defendant only held the property temporarily. When the defendant "casts out the ghosts", the victim still did not lose the right to possession of the property, and the defendant could stop casting the spell and return the property at any time.

Therefore, obtaining temporary possession of property through fraud is not the defendant's purpose, but only an auxiliary means to achieve the purpose of possessing property.

In addition, according to the evidence in the case, the defendant's "subcontracting" behavior is a secret theft, and its secrecy is reflected in:

1. When subcontracting, the defendant drove the victim away from the scene of the law enforcement on the grounds of avoiding disaster, and the defendant subjectively did not want the victim to know.

2. The method of subcontracting is unknown to the victim

3. After subcontracting, the victim did not know that the property had actually been controlled by the defendant.

To sum up, the defendant implemented the secret method of "subcontracting", which transferred the property in this case from the victim to the defendant. The defendant finally obtained the actual control of the property through subcontracting. Therefore, the defendant's behavior is consistent with theft. Behavioral characteristics of criminal secret theft.The defender believes that the defendant's behavior constitutes the crime of theft
In view of the fact that the defendant confessed the facts of the crime truthfully and showed remorse after being brought to justice, the defender suggested that the court give the defendant a lighter punishment and sentence the defendant to a suspended sentence.complete. "Meng Guangda spoke.

……

After more than two hours of trial, the collegial panel finally pronounced the verdict in court.

The county court held that the defendant, Jin Dachun, used secret means to steal other people's property for the purpose of illegal possession. The amount was huge, and his behavior constituted the crime of theft.

In the process of committing a crime, Jin Dachun first used fictitious facts to trick others into taking out property, and then took the opportunity to steal the property by means of subcontracting. The deception and theft were connected, but the main method of illegally obtaining property was stealing secretly to deceive others. The act does not directly obtain the property to be illegally occupied, but only creates conditions for the realization of theft, so its act should not be identified as a crime of fraud.

The fact that the public prosecution agency accused Jin Dachun of illegally occupying other people's property is clear, and the evidence is solid and sufficient, but the charge of fraud is inappropriate and should be changed.

The defendant, Jin Dachun, truthfully confessed the facts of the crime after returning to the case, and may be given a lighter punishment as appropriate.In accordance with Article 264 of the "Criminal Law of the People's Republic of China", No. 20 Article [-] Paragraph [-], Article [-], and Article [-], the defendant Jin Dachun committed the crime of theft and was sentenced to three years in prison and a fine of RMB [-].

Zhao Huilan kept wiping away her tears in the auditorium. She was sentenced to three years in prison, and after deducting the previous time in custody, she would spend more than two years in prison.

Today's fourth update, there is still a chapter, which is being typed by hand, and will be updated at six o'clock in the evening.