Lawyer's character

At this moment, the waiters began to serve the dishes one after another, and the three of them chatted while eating.

"Mr. Yuan, have you brought the first-instance judgment and relevant case materials?" Fang Yi asked.

He thought: Now that Lawyer Zhao and the partner have already entered, and Yuan Changzheng came all the way over, this case may really continue.

"I brought it, but I only have the first-instance judgment and not the protest. I heard about the protest from lawyer Zhao. After the prosecutor's office protested, I asked him to go to the detention center to meet my son.

I would like to hear your opinion and see if the second trial will change the sentence. Yuan Changzheng said as he took out a document bag. It was thick and should contain a lot of documents.

After Fang Yi took the document bag, he pulled out the case materials inside: "The county court believes that Yuan Wei has a good attitude of pleading guilty, actively compensates, and obtains the victim's understanding, so the punishment can be reduced.

But according to what you just said, the procuratorate disagrees with the court’s judgment and raised two objections:

Article 1: The procuratorate believes that the first-instance judgment and sentencing were inappropriate.

The Procuratorate believes that Yuan Wei, who committed a huge amount of fraud and partially compensated the victim and obtained forgiveness after the trial, can be given a 'lighter punishment' as appropriate and should not be 'mitigated'. In the absence of statutory mitigating circumstances, the first-instance court's reduced punishment for Yuan Wei was obviously inappropriate. The procuratorate believed that Yuan Wei should be sentenced to more than three years in prison. "

After speaking, Fang Yi picked up a settlement agreement and asked: "Mr. Yuan, the settlement agreement states that the compensation will be paid in installments. Fifty percent will be paid first, and the balance will be paid after the court's judgment takes effect. The first payment Has compensation been paid?”

"I'll give it to you after signing the settlement agreement." Yuan Changzheng said.

"Why didn't it be paid in one lump sum instead of in installments?" Fang Yi asked.

"The main reason is that I'm afraid that the other party will regret it after getting the money. This can restrain the other party. I consulted Lawyer Zhao at that time, and he said that I signed it only if it was okay. Is there any problem?" Yuan Changzheng said.

"Well, there is indeed a problem.

Article 502 of the "Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China" stipulates that the defendant shall perform the compensation for losses stipulated in the settlement agreement immediately after the agreement is signed. The so-called immediate performance means that the performance must be completed in one go after signing the agreement, and payment cannot be made in installments.

Article 505 of the Interpretation stipulates that for cases in which a settlement agreement has been reached, the people's court shall give the defendant a lighter punishment; if the conditions for the application of non-custodial punishment are met, the non-custodial sentence shall be applied; if the statutory minimum sentence is still too severe, The punishment can be reduced; if the crime is deemed to be minor and does not require a punishment based on the whole case, the criminal punishment can be exempted.

In other words, if the settlement agreement stipulates payment in installments and only part of the compensation is paid at the time of trial, the court should not apply Article 505 of the Interpretation to reduce the punishment of the defendant. From this perspective, there is no problem with the prosecutor's office's protest. "Fang Yi explained.

Although Yuan Changzheng didn't quite understand the literal legal terms, he understood that he should not pay the compensation in installments, because in this case, the court could not apply the above-mentioned explanation of Article 505 to reduce Yuan Wei's criminal sentence. punishment. This means that the second instance may change the sentence and extend Yuan Wei's sentence.

After hearing what Fang Yi said just now, Yuan Changzheng felt regretful. In addition to hating himself, he was even more cruel to Lawyer Zhao, because all the documents at that time were drafted by Lawyer Zhao.

"Lawyer Fang, is there a big difference between a lighter punishment and a reduced punishment that you just mentioned? Is the court's decision really wrong?" Yuan Changzheng wanted to find loopholes in the law, but he didn't know the law very well, so he could only seek advice from Fang Yi.

"Well, the difference is quite big. Mitigation means that a lighter type or smaller punishment is applied to the defendant within the legal type and range of punishment. Mitigated punishment means that the defendant is below the legal lightest punishment type and minimum punishment range. Give punishment.

Let me give you an example. For example, according to the provisions of the Criminal Law, the defendant should be sentenced to fixed-term imprisonment of not less than three years but not more than ten years. If there is a lighter punishment, the court will take into account the circumstances of the case and the defendant's guilty plea and sentence the defendant. A sentence of three or four years is considered a lighter punishment.

If the defendant has mitigating circumstances, the court may sentence the defendant to a fixed-term imprisonment of less than three years, such as one and a half or two years.

That's the difference. "Fang Yi explained.

"Does the settlement agreement have to be paid immediately in order to apply the mitigating penalty? Are there any other ways to work around it?" Yuan Changzheng's business mind started to work quickly. For a businessman, there is nothing that cannot be changed, even if it is just If there is even a slight possibility, he will try it.

“According to the guiding spirit of the Supreme Court, the reconciliation system has three principles: first, the principle of voluntariness; second, the principle of immediate and full performance; and third, the principle of estoppel.

In fact, from the date when the settlement agreement signed by you and the other party takes effect, the other party cannot go back on it. Even if the other party does go back on it, the court will not support it. So your initial worries are unnecessary.

Your question relates to the second principle, the principle of immediate and full performance.

To be honest, in judicial practice, various courts have different opinions on whether the compensation stipulated in the criminal settlement agreement can be deferred or performed in installments. This may also be the reason why the county court applied a reduced penalty and sentenced your son to one year and six months in prison. "Fang Yi explained.

"According to your statement, the judgment of the first-instance court may not be changed by the second-instance court. The second-instance court may still uphold the original judgment, is that true?" After hearing Fang Yi's words, Yuan Changzheng felt a little more at ease.

“It is possible, but of course there is a lot of luck involved.

However, according to the guidance of the Supreme Court, if the delay or installment of the compensation agreed in the settlement agreement is allowed, the court's leniency to the defendant will be based on uncertain facts. Once the defendant is granted leniency, Afterwards, if the person refuses to perform or does not fully perform the obligation to compensate, subject to the principle of no increase in punishment on appeal, the court of second instance cannot increase his punishment.

In addition, since it is a settlement agreement reached between the parties, it does not have the effect of applying for compulsory execution. This will undoubtedly damage the authority of the referee and make it difficult to effectively protect the legitimate rights and interests of the injured party.

Therefore, I cannot say whether the second-instance court will change the verdict, but I suggest you prepare for the worst and not be too optimistic. "Fang Yi said.

"Well, I understand what you mean. We were too optimistic during the first trial. As a result, my wife still can't accept the fact that my son has been sentenced." Yuan Changzheng understood that Fang Yi's words were right, and there may be exceptions in everything. situation, be well prepared.