Lawyer's character

After a pause, Fang Yi continued: "In addition, the defender brought to the attention of the presiding judge that the buyer named Wu mentioned in this case is an investigator of the Forestry Public Security Bureau, and this person's true identity is recorded in the court records of the first instance. , on the fifth line of page 93. Cross-examination completed."

After listening to Fang Yi's words, the three judges of the collegial bench lowered their heads and whispered a few words, and one judge began to look through the case files.

…

“The court investigation is over and now the court arguments will begin.

Before the debate, the court drew the attention of both the prosecution and the defense that the debate should mainly focus on determining guilt, sentencing and other controversial issues. Let the appellant and defender speak first.

The appellant Zhao Cuixia can defend herself. "The chief judge said.

“I don’t think I am guilty of selling rare and endangered wild animals. I was lured by Wu to help him buy wild animals. I only played a matchmaking role and should not be considered a crime.

In addition, the person surnamed Wu is from the forest police. I think they deliberately induced me to commit a crime. The court of first instance found me guilty, which is against natural justice. I'm done. " Zhao Cuixia said

"The defender of the appellant Zhao Cuixia spoke." the presiding judge said.

“Judging from the facts of this case, it was the buyer surnamed Wu who had been urging Zhao Cuixia to help him purchase wild animals for as long as six months. It can be seen that Zhao Cuixia had no criminal intention to actively sell nationally protected wild animals.

Without knowing the fact that Zhao Cuixia was selling state-protected wild animals, the forest police sent investigators to actively lure Zhao Cuixia into selling state-protected wild animals. Only then did Zhao Cuixia participate in the transaction of two whooper swans as an intermediary. The referral fee obtained from it is only fifty yuan.

The investigation agency's collection of evidence by inducement is contrary to the provisions of the Criminal Procedure Law. The evidence collected is illegal and the evidence should not be admitted. The court is requested to revoke the criminal judgment of the first instance court in accordance with the law and change the acquittal of the appellant (defendant in the original trial) Zhao Cuixia.

The defender finished speaking. "Fang Yi said.

"Now the prosecutor will speak," the presiding judge said.

"Okay, Judge.

The appellant Zhao Cuixia illegally sold whooper swans, a national second-class protected wild animal, for profit. Her behavior constituted the crime of illegally selling precious and endangered wild animals.

Subjectively, Zhao Cuixia had the idea of ​​selling wild animals for profit, and objectively she did carry out the act of selling precious and endangered wild animals. We believe that the facts found in the first instance are clear and the applicable penalty is appropriate. We ask the court to reject the appellant’s request in accordance with the law.

The presiding judge and the prosecutor have finished speaking. "Prosecutor Song said.

"The prosecutor can respond to the defender's defense opinions," the presiding judge said.

"Okay, in response to the defender's defense opinion, we believe that even if the appellant Zhao Cuixia's illegal behavior was influenced by others, if she did not have the subjective intention to illegally make profits, it would be impossible for her to commit illegal and criminal acts.

Although the big swan does not belong to Zhao Cuixia, she participated in the trade of wild animals protected by the state and played a role in fueling the flames. No matter how much she profited, it was a crime. "Prosecutor Song said.

"The defender can respond to the prosecutor's opinions." the presiding judge said.

Fang Yi looked at the record on the paper and said: "In response to the prosecutor's opinions, the defender responded as follows:

1. The appellant’s criminal behavior was caused by the investigators’ temptation to investigate.

The so-called seduction investigation means that investigators set up traps or baits to imply or induce the subject of investigation to reveal their criminal intentions and commit criminal acts. The seduced person will be arrested when the criminal act is committed or after the result occurs.

In this case, the appellant Zhao Cuixia was originally engaged in the hotel business and occasionally purchased hares and other non-precious and endangered wild animals as a legitimate trader. The investigation agency did not know that she had any criminal intention or criminal behavior to sell wild animals protected by the state.

Under this circumstance, the investigators pretending to be the buyer surnamed Wu repeatedly asked Zhao Cuixia to purchase precious and endangered wild animals and lured Zhao Cuixia. Zhao Cuixia then contacted Liu Sanding and reported the news of the giant swan to the buyer surnamed Wu, and asked for The deposit is five thousand yuan.

As an investigator, the buyer surnamed Wu asked Zhao Cuixia to actively facilitate the transaction and paid a deposit in advance. When Zhao Cuixia handed over the big swan to the buyer named Wu as an intermediary and asked for the intermediary fee, she was caught on the spot by forest police officers who were ambushing around.

It can be seen from the above that Zhao Cuixia had no criminal intention to sell state-protected animals before being tempted to investigate. The criminal behavior she committed was caused by the repeated temptation of the proactive purchase behavior of the buyer named Wu. The defender believes that this case should be a typical "criminal intent-induced" temptation investigation.

2. The appellant who committed the crime because he was lured by the temptation investigation method should not be guilty of the crime.

Seduction investigation is deceptive to a certain extent, contradicts the pursuit of justice value in criminal proceedings, and has insurmountable flaws. It can easily make people lose trust in the impartiality of the judiciary, lead to the abuse of investigative power, etc., and it also violates the legality of seduction investigation. Sex and appropriateness have always been controversial.

At present, there are few legislative regulations on seduction investigation in the judicial field, and there are only some scattered regulations. For example, the Ministry of Public Security's "Criminal Special Situation Work Regulations" stipulates: "Criminal special circumstances induce crimes are strictly prohibited." "Minutes of the Symposium on Criminal Case Work" provides guidance on sentencing for drug-related death penalty cases uncovered through seduction investigation.

In view of the irreplaceable special role of temptation investigation in solving some serious crimes, it should be recognized that its use is allowed under certain conditions. The above relevant regulations also reflect this spirit, but in order to reduce its possible negative impact , when the relevant legislative provisions are not yet complete, it is particularly important to strictly restrict the investigation of temptation in the judicial process.

The defender believes that the purpose of seduction investigation is to discover criminals, not to "create" criminals. The essence of law is to manage citizens, maintain social order, and encourage citizens to be kind and abide by the law and order. If relevant agencies use legal means to induce the ugliness in human nature to sprout and encourage citizens to commit crimes, this is contrary to the justice of the law.

Therefore, as for the "criminal-intention-induced" temptation investigation, since it is essentially the creation of a crime in the name of temptation investigation, this situation should not be allowed.

In this case, the investigative agency used the "criminal intention induction" temptation investigation method, which caused Zhao Cuixia, who originally had no criminal intention, to have criminal intention and commit a criminal act. This is "creating a crime" and this investigation method is not legal. Since the evidence obtained by this investigation method violates the provisions of my country's Criminal Procedure Law prohibiting the collection of evidence by inducement and deception, it should be illegal evidence and should be excluded. "