Lawyer's character

Today is the day for the second trial of Li Song's administrative litigation case. The Intermediate People's Court notified Fang Yi that the court would start at 9:30 in the morning. The client had an appointment the previous afternoon, so Fang Yi had to get up early and rush to the city.

After Fang Yi took out the case file, he placed the necessary items on the table of the appellee. He glanced at the table of the appellant opposite. This time, there was only Mr. Fang, a big-eared lawyer. It was estimated that Officer Zhao, who attended the trial last time, was mentally disturbed. I was hurt and I won’t come this time.

The collegial panel of the second-instance court is composed of three judges. Sitting in the middle is a female judge in her forties with short hair and a heroic face. She is the presiding judge; sitting on the left and right are a male judge, aged He looks to be in his thirties.

…

"Appellant, please state the appeal request, facts and reasons." The female judge said.

“Appeal request: 1. To revoke the [2013] Hebei 0113 Xingchu No. 63 Administrative Judgment of the District People’s Court, and change the judgment to reject the appeal of the appellee. 2. To order that the litigation costs shall be borne by the appellee.

Facts and reasons: The appellant found out that at around 13:00 on June 1, 2013, the appellee smoked DP at home. His urine test showed positive for morphine, and he was identified as having a serious addiction to DP. The above facts are supported by the confession, appraisal opinions, transcripts and other evidence of the illegal perpetrator Li Song.

In accordance with the provisions of Article 72 (3) of the Public Security Administration Punishment Law of the People's Republic of China, the appellant imposed an administrative penalty of 15 days of administrative detention on the respondent. The facts are clear, the evidence is reliable and sufficient, and the application of the law is correct. .

The appellant believed that the important evidence determined by the court of first instance as the basis for punishment, including the transcript of the interrogation of the plaintiff Li Song, was obviously illegal in terms of procedures and was not admissible. Therefore, although the appellee Li Song’s statement on June 3, 2013 The urine test was positive, but it was not enough to prove the fact that the appellee Li Song had smoked DP on June 1, 2013. The judgment to revoke the "Administrative Penalty Decision" made by the appellant was due to unclear facts.

On June 3, 2013, the appellant confessed to the illegal behavior of smoking DP at his own home in the interview transcript and simultaneous audio and video of the appellee. This is consistent with the fact that the urine test report on that day was positive. The facts corroborated each other, and the respondent signed to confirm the above facts.

Therefore, the interrogation record and the simultaneous audio and video recordings are authentic as evidence. Although the police officer who conducted the interrogation is different from the police officer who appeared in the video, the above evidence can fully prove the fact that the respondent violated the law on June 3, 2013.

Although there were flaws in the questioning procedure throughout the entire process, these procedural flaws did not affect or infringe upon the rights of the appellee.

According to the provisions of Article 74 of the Administrative Litigation Law: 'If an administrative act falls under any of the following circumstances, the people's court shall confirm the violation, but shall not revoke the administrative act:... (2) The administrative act procedure is slightly illegal, but the plaintiff rights that have no real impact'.

The facts of the administrative punishment imposed by the appellant on the appellee's illegal behavior are clear, the evidence is indeed sufficient, and the law is applied correctly. Although there was a minor procedural violation, it did not have any actual impact on the rights of the appellee, and the court of first instance should not revoke the administrative penalty imposed on the above-mentioned person. "

Speaking of this, the big-eared male lawyer paused for a moment, worked up his emotions and then said: "'DP is as fierce as a tiger'. Many wives have been separated and families have been destroyed, all because of it. The social harm of DP is well known, and the number of drug users is huge. personal danger.

Combating DP illegal and criminal activities is not only a long-term and arduous struggle responsibility of the public security organs, but also an unshirkable obligation of the whole society.

DP illegal and criminal acts have the characteristics of "strong concealment, high resistance to investigation, and difficulty in investigation and evidence collection". If you are not careful, you may indulge in illegal and criminal acts. The public security organs attach great importance to this. Under the leadership of the district government, we will intensify the investigation and punishment of DP illegal and criminal activities and purify the social atmosphere.

In this case, the appellant has recognized the flaws in the law enforcement procedures. The court of first instance confirmed that the administrative penalty was illegal as a warning to the appellant. However, the illegal fact that the appellee smoked DP did exist. Therefore, revoking the appellant’s administrative penalty would not be beneficial. Crack down on DP illegal activities. The appellant implored the court of second instance to correct it in accordance with the law. complete! "

Fang Yi looked at the indictment in his hand, listened to the speech of the big-eared male lawyer, and thought to himself: It seems that the other party has done a lot of work before the trial. Not only did he apply the laws and regulations, but he also played the emotional card. It is not easy to be a lawyer. , not only do you have to understand the law, but you also have to be able to perform and be full of emotions, which is not easy!

In fact, from the bottom of his heart, Fang Yi also hates people who smoke DP. Back then, Grandpa Lin sold out cigarettes in Humen so that Chinese people could have a good body. Now in this new society, there are still people who are willing to degenerate. Hey! The woods are big and there are all kinds of birds.

But since you take this case, you have to put aside your inner disgust and maximize the interests of the client. This is what a lawyer should do. To be honest, sometimes lawyers have a hard time handling cases.

"Appellee, please respond." The female judge said.

As a lawyer, it is always polite to come back without reciprocating. Fang Yi did a lot of homework after getting the appeal letter. He spent a lot of time on this defense letter.

“The respondent disagrees with the appellant’s appeal request. The reasons are as follows:

1. The "Administrative Penalty Decision" (Xingfangjuezi [2013] No. 10113) made by the appellant was based on insufficient main evidence and unclear facts.

The inquiry transcripts and urine test reports based on the above-mentioned "Administrative Punishment Decision" have serious procedural flaws, which are enough to render the above-mentioned evidence unreliable and should not be admitted. The respondent believes that the judgment of the court of first instance confirming that the respondent’s administrative punishment was illegal and revoking it was correct and appropriate and should be upheld.

The main evidence used by the appellant to determine that the appellee was addicted was only the interrogation transcript and the urine test report. However, the interrogation transcript was not produced in accordance with the "Procedural Regulations for the Handling of Administrative Cases by Public Security Organs".

The interrogators recorded in the interrogation record are Zhao Yidong and Feng Sheng, and the recorder is Zhao Yidong. However, the simultaneous audio and video submitted by the appellant at the first instance clearly showed that the interrogators were Zhao Yidong and Zhou Tao, and later Li Bing joined them, and the recorder was not Zhao Yidong.

Zhou Tao and Li Bing, persons unrelated to the case, entered the interrogation room and modified the interrogation transcript. During the first-instance trial, Zhao Yidong, the interrogator recorded in the transcript, participated in the trial as the appellant’s attorney. When the appellee and the first-instance judge questioned the interrogator in the simultaneous audio and video recordings, Zhao Yidong deliberately avoided answering. This shows that, Zhao Yidong was fully aware of his illegal behavior of failing to make records and collect evidence in accordance with legal procedures.

In addition, the urine collectors and testers shown in the urine test report are both Zhao Yidong and Feng Sheng. These two people are not only the case handlers, but also the urine collectors and testers, seriously violating the "Drug Drug Testing Procedure Regulations" promulgated by the Ministry of Public Security. ", not only is it a serious violation of the law in terms of procedures, but the test report produced also lacks the necessary rigor, scientificity, and fairness, and should not be used as evidence to determine the fact that the appellee has smoked D.

The two main pieces of evidence used by the appellant to conclude that the appellee was addicted to sex both contained serious procedural flaws, and there was no other relevant evidence, because the appellee believed that the evidence used by the appellant to determine that the appellee was addicted to sex was seriously insufficient.

Therefore, the first-instance court's judgment found that the main evidence and facts based on the respondent's administrative penalty decision were insufficient and the facts were unclear, so it was correct and appropriate to revoke it and should be upheld.

2. The appellant’s grounds for appeal are untenable.

We all know the basic principles of the construction of the socialist legal system: 'There are laws to abide by, laws must be followed, law enforcement must be strict, and violations must be investigated.'

"Enforcement must be strict and violations must be prosecuted" is an inherent requirement of the law and a basic requirement for law enforcement agencies and law enforcement personnel.

It not only requires that everyone is equal before the law, and no individual or organization exceeds the legal norms; it also requires law enforcement agencies and law enforcement personnel to enforce the law strictly and seriously... rather than abusing the law enforcement power granted by the state and putting power in a cage. The original intention of enacting the Administrative Litigation Law.

Public security organs are organs of state power and bear the important responsibility of combating illegal crimes. They should follow the principles of legality, fairness, openness and timeliness, respect and protect human rights, and protect the personal dignity of citizens.

The appellant not only turned a blind eye to the two pieces of serious illegal evidence involved in the administrative penalty in this case, but also blatantly believed that the transcripts and urine test reports provided were authentic.

What the respondent does not understand is who is breaking the law? Without sufficient evidence to prove that the respondent has violated the law, the appellant can arbitrarily impose administrative penalties on the respondent and restrict his personal freedom; in fact, the respondent's legal rights have been seriously violated.

Now let's look back at this case. Can the serious flaws in the administrative penalty basis and law enforcement procedures provided by the appellant be ignored? Is it legal to reach a conclusion that is procedurally illegal? Wouldn't it be conducive to combating DP's illegal activities if the court of first instance revoked the administrative penalty imposed on the appellant? Obviously not right!

Justice must not only be achieved, but must be achieved in a visible way. Without procedural justice, there is no substantive justice.

Therefore, the respondent believes that the appellant’s grounds of appeal are groundless in law, unreasonable and untenable.

To sum up, the appellee believes that the facts found in the first-instance judgment are clear, the evidence is indeed sufficient, the law is applied correctly, the procedures are legal, and the judgment is fair and just. The appellant’s appeal request is not valid, and requests the second-instance court to reject its appeal request in accordance with the law and uphold the original decision. Judgment. complete. "

Fang Yi put down his defense form and thought to himself: You have a good plan, I have a wall ladder. The spring breeze blows the war drums, who is afraid of whom in this era!

Fang Yi is very satisfied with the defense opinions he wrote. Of course, this is his first time doing administrative litigation. What he writes cannot be too demanding. He must be exhausted to demand perfection in everything.

After Fang Yi read the defense opinions, he accidentally glanced at the other party. On the other hand, the big-eared male lawyer was very professional and his eyes were cold and not mixed with swords, guns or sticks.

"Now let's begin the evidence and cross-examination. Appellant, do you have any new evidence to submit?" the female judge asked.

"There is no new evidence." Fang, the big-eared male lawyer said.

"Appellee, do you have any new evidence to submit?" the female judge looked at the appellee table and asked.

"No." Fang Yi said.

"Do you have anything to add to your cross-examination opinions on the evidence submitted in the first instance?" the female judge asked.

"No." Both parties said.

"Let's summarize, the focus of the dispute in this case is whether the evidence based on the appellant's administrative penalty is illegal and whether it is sufficient, right? Do you have any different opinions?" asked the female judge.

"Yes." Both parties said.

"Okay, next, this trial will focus on the focus issues just summarized. Please answer truthfully from both of you." The female judge said.

"Appellant, we noticed that the examiners on the urine test report were Zhao Yidong and Feng Sheng. Are these two people the ones responsible for the administrative penalties involved in this case?" The female judge looked at the materials in her hand and asked.

"Yes, Zhao Yidong and Feng Sheng are the persons in charge of the case, but we believe that the procedural flaws in the case do not infringe on the rights of the appellee Li Song." Fang Daernan lawyer said.

"Appellant, how did you know that the appellee was taking DP? Did anyone see him on the spot?" the female judge asked.

"The appellant summoned the appellee Li Song to the appellant's office after receiving reports from the masses. During the interrogation process, Li Song himself admitted it." Fang Daernan lawyer said.

"Have any witnesses seen the appellee sucking dick?" the female judge asked.

"No, it's just that some people reported that the appellee was behaving abnormally, and they didn't see it with their own eyes," said the big-eared male lawyer Fang Fang.

"That is to say, no one saw it with their own eyes, only the appellee admitted it. Is that true?" said the female judge.

"Yes, that's true." Fang, the big-eared male lawyer said.

…

Since both parties had no new evidence, the dispute in the case was only whether the evidence on which the public security organs' punishment was based seriously violated relevant regulations, so the entire second instance process was relatively simple.

After leaving the court gate, Fang Yi called Zhou Deguang to briefly introduce the trial situation. Originally, Zhou Deguang wanted to go to the scene to observe, but then he thought that the two sides were talking about legal provisions, and he couldn't quite understand it, so he didn't go and waited for the good news in the office.

Seeing that it was not yet noon, Fang Yi thought of Li Shuming, whom he had not seen for a long time, so he took the bus to Huihuang. When he arrived at Glory, Li Shuming happened to have just returned.

"What's wrong with you? Why are you feeling a little down?" Fang Yi asked, looking at Li Shuming who was holding a leather bag in his hand and looking disappointed at the brilliant gate.

"I lost my favorite little cotton-padded jacket!" Li Shuming shook his head and said with a frustrated look on his face, then walked inside.

"Old Li, you are so funny. Who wears cotton-padded jackets these days..." Before Fang Yi could finish his words, he immediately realized something and quickly chased after Li Shuming.

In the general manager's office, Li Shuming lit a cigarette and then buried himself in the smoke, looking particularly lonely.

Fang Yi did not disturb him, took out a cigarette from the cigarette case on the coffee table, lit it, sat on the sofa and enjoyed it alone, waiting for Li Shuming to confide in him.

After smoking a cigarette, Li Shuming leisurely walked to the coffee table, sat down, leaned against the soft sofa, put his hands behind his head, and looked up at the ceiling.

Fang Yi saw tears shining in his eyes.