Lawyer's character

In the remote mountainous area of ​​the county below, there is a village called Sankeshu. This village is a natural village under the national poverty-stricken county. The village has a small population and is mostly mountainous.

During spring plowing, villager Li Jicai could not find any land for large animals to cultivate, so he had to rely on manpower to plow the land with pickaxes, which made him run around in a hurry.

One day he went to the county to do business. When he came back, he passed by the next village and found a strong ox drinking water and eating fodder in the cowshed. His eyes lit up. There was still a lot of uncultivated land in his own land. Seeing no one around, he started to fight. Got the scalper's idea. He planned to take the ox back to plow the land for his family, and then send it back after plowing the land.

It was noon and there was no one on the road. People in the village were all eating and taking a nap at home. Li Jicai has a simple character and has never done anything illegal. After a fierce ideological struggle, in order to not miss the farming season, he finally took the cattle out of the cattle pen and took the cattle home along the road.

After returning home, he immediately drove the cattle to plow the land. The next day, when the cattle were plowed until about 5 pm, the cattle owner Song and his men found Li Jicai, who then took him to the public security organ. The public security organ detained him for theft, and then the procuratorate approved his arrest and the case file was transferred to the court.

Xie Youhe had already gone to the detention center to meet with Li Jicai before. Fang Yi looked at the case records made by lawyer Xie and the case files obtained from the court.

"Well, what do you think of this case?" Xie Youhe sat down and whispered: "After lunch later, let's discuss this case. It just so happens that Xiaomei and Xiao Zhou also want to get involved in the litigation business. If they have nothing to do at noon, they can Listen too.”

"Okay." Fang Yi nodded.

The midday sun poured down through the glass windows and filled the small conference room. Xie Youhe still held the big teacup and drank tea leisurely. Mei Xiaoting sat at the conference table, spinning the pencil skillfully with the five fingers of her right hand. On the table in front of her was the record book issued by the team.

Maybe it's because Boss Gu has been in a hurry recently for documents and works a lot of overtime. After lunch, Zhou Yunyuan felt a little lazy, yawning nonstop, with tears in his eyes. He sat on the chair and glanced at the big screen in front of him from time to time.

After adjusting the projector, Fang Yi cleared his throat: "The case I'm sharing with you today is a criminal case signed by Lawyer Xie some time ago.

The cause of the matter was that a villager named Li Jicai secretly took home the scalpers raised on the roadside in a neighboring village..." After Fang Yi introduced the case, he looked at Lawyer Xie.

"The facts of this case are relatively simple. I was the one who negotiated the case at the time. Li Jicai's wife came to sign the entrustment procedures and received a lawyer's fee of 10,000 yuan.

Lawyer Fang, please tell me your thoughts first, and then we will discuss it. "Xie Youhe put down the big teacup and said.

"Okay. I personally think that Li Jicai's behavior does not constitute the crime of theft.

According to Article 1 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Theft Cases" (Fa Interpretation [1998] No. 4), according to the provisions of Article 264 of the Criminal Law, for the purpose of illegal possession, secret possession Stealing a relatively large amount of public or private property or stealing public or private property multiple times constitutes the crime of theft.

Although the above judicial interpretation was abolished with the implementation of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Theft" (implemented on April 4, 2013), the interpretation's description of the crime of theft It is worth learning from.

It can be seen from this that the so-called crime of theft is subjectively aimed at illegal possession; objectively, it is the act of secretly stealing a large amount of public and private property. If the above requirements are met, it constitutes the crime of theft.

According to the obtained case files and lawyer Xie’s interview records, Li Jicai secretly took away the scalpers to cultivate his own land. After the land was cultivated, he secretly returned the scalpers, not for illegal possession.

Judging from his behavior, although Li Jicai took the scalper away with the owner of the cow on his back, he led the cow on the main road. Many people saw him along the way and did not cover up his whereabouts. Otherwise, it would not be so easy for the owner of the cow to find the scalper. turn up. So I don't think it should be a crime of theft. "Fang Yi said.

"Lawyer Fang, how should we explain this "secret theft"?" Zhou Yunyuan asked, scratching his head.

He had done some litigation cases before, but they were all civil litigation cases, and the number was small. Criminal cases were risky, so he had never done them. Later, after joining Gu Datong's team, he has been doing non-litigation business and rarely does litigation anymore. .

He participated in the discussion of criminal cases more to join in the fun, listen to stories, and seek novelty. He had never thought about engaging in criminal business.

After hearing what he said, Mei Xiaoting blinked her big eyes, held her cheeks, and looked at Fang Yi, waiting for the next words. Xie Youhe continued to drink tea and enjoy himself.

“The so-called ‘secret theft’ can be divided into two situations:

1. The process of obtaining other people's property was not discovered by anyone and was carried out in secret. That is to say, the criminal suspect subjectively believes that he has not been discovered, and objectively he has indeed not been discovered. For example, if someone steals your wallet while squeezing in a car, the suspect, the surrounding people, and the victim will not know that the theft has occurred.

2. The criminal suspect thought that the victim had not discovered it (in fact, it had been discovered) and obtained other people's property. In other words, the criminal suspect "believes" that he has not been discovered, but in fact has been discovered, which can be understood as "hiding his ears and stealing his bell." There are many such situations. For example, after a burglary is discovered, the victim does not alert the thief and calls the police.

If someone finds and stops someone during the theft, but still takes it by force, it is not a secret theft and constitutes a crime of robbery or other crimes.

In addition, there is another situation that is also very common in reality. When a criminal suspect steals property, everyone around him clearly sees it, but because of fear or numbness (sometimes, the victim himself is the same), they pretend to turn a blind eye, causing damage to the victim's property. There are also many incidents of losses and such 'blatant' thefts. Does it constitute the crime of theft? This depends on the situation and it is not easy to generalize. "Fang Yi explained.

"Oh, I understand." Zhou Yunyuan nodded.

"Lawyer Mei, do you have anything to say?" Xie Youhe looked at Mei Xiaoting with a smile.

"No." Mei Xiaoting shook her head.

She understood everything Fang Yi said, but asked her to ask questions... She really couldn't think of what to ask, because she had never done litigation before, and she had been doing non-litigation business since she was a trainee lawyer.

"I agree with Lawyer Fang's opinion, but in reality many situations are beyond our control, especially what the judge thinks. Therefore, lawyers are needed to guide the judge's thinking during the trial. If it can succeed, then basically there will be no big problem in this case. .

This case will be heard next Wednesday. Lawyer Fang, I leave it to you. "Xie Youhe said.

Happy New Year, book friends! Whether you have money or not, you have to celebrate the New Year! More updates tomorrow!