Lawyer's character

"What if he is not sentenced to death?" Qian Wen said.

"That's better! Time will heal all pain. If time can't resolve the pain between their father and daughter, we lawyers will not be able to resolve it. Just put your words in perspective and fulfill our duties as lawyers!" Fang Yi looked at Qian Wendao.

"Well, I understand." Qian Wen walked towards the workstation thoughtfully.

"Hey! Old Fang, have you started taking on apprentices?" After Qian Wen left, Huang Yuanchao came over with a smile.

"Don't talk nonsense. I'm just cooperating with Lawyer Qian." Fang Yi glanced at Huang Yuanchao and said.

"Lawyer Qian is actually quite good. He is very patient with clients. However, he lacks a little momentum and his ability to withstand pressure is a bit poor. He may not be able to hold himself back when he encounters big clients. He is not suitable for big cases." Huang Yuanchao said in a low voice.

"That's it... Actually, it depends on whether the Grandmaster will reward you with food. If the Grandmaster will reward you with food, you can practice it in one or two years." Fang Yi hesitated and said.

"I see! By the way, let's discuss something serious with you." Huang Yuanchao said in a low voice.

"What's the matter?" Fang Yi asked seriously.

"I'm going to talk to a legal consulting company in a while. It's a big client. When the time comes, you and Ma Yi will go with me, and you will say that we are on the same team. So, help me support the situation." Huang Yuanchao Hehe said with a smile.

"What do I think it is? That's it. No problem." Fang Yi agreed happily: "But you have to tell me in advance so that I can arrange the time."

"Euler!" Huang Yuanchao stretched out his right hand and made an OK gesture, then turned and returned to his workstation.

A week later, at noon on a scorching summer day, Fang Yi and Qian Wen walked out of a small restaurant not far from the court after having lunch.

"Lawyer Qian, it's already like this, so don't worry about it anymore." Fang Yi glanced at Qian Wen, who had his head lowered beside him and advised him listlessly.

At 10:30 this morning, the trial of Xiao Wang's murder case started. The trial process was very simple. With the encouragement of Fang Yi, Qian Wen made the final defense speech. Of course, the defense speech was drafted by Qian Wen and revised by Fang Yi.

In the gallery of the court, many media reporters came to the court, preparing to use today's murder case as a negative lesson to warn the public that impulse is the devil. Relevant departments are also preparing to take this opportunity to launch a month-long purification live broadcast operation.

The court hearing was a one-sided situation. The prosecutor kept accusing Xiao Wang of the evil deeds he had committed, describing him as a heinous criminal who was extremely harmful to society. Maybe it was a public trial and there were reporters below. The prosecutor had a strong desire to perform, and the on-site effect was also very good.

Fang Yi argued hard and brought up the past events, describing Xiao Wang as a cuckold victim like Wu Dalang who had lost all his money, and pointed the source of the crime to the live broadcast.

Qian Wen's final defense opinion was to tell the victim's fault and the defendant's cooperation with the investigation after being brought to justice and other circumstances that were beneficial to the defendant's sentencing, and classified Xiao Wang's behavior as a passion killing.

I could hear the prosecutor being upset. The court appointed a lawyer to provide legal aid services. He just went through the motions and cooperated. Why did he keep talking about it?

The judge also frowned. Such a simple case, such a serious incident, a murder case! And it was his wife who was killed... The harm to society is so great, is it necessary to waste so much words? But this is fine, as the reporters in the provincial gallery did not write about it.

After the trial, the presiding judge pronounced Xiao Wang’s death sentence in court and was to be executed immediately!

"Hey! This is the only way. I didn't expect you to be right!" Qian Wen squinted at the sky and sighed.

"Is there any news from Xiao Wang's daughter?" Fang Yi asked.

"I told her the court date two days ago, but she didn't reply to my letter, and I don't know if she will come today." Qian Wen said.

There were a lot of people sitting in the auditorium, as well as media reporters. She didn't know Xiao Wang's daughter, so she didn't know if Xiao Wang's daughter was in the auditorium.

"Well, when the judgment comes out, mail it directly to her. Remember to ask the judge for a copy of the judgment for ordering." Fang Yi was not interested in the follow-up matters, so he left the rest of the work to Qian Wen.

The next week, Fang Yi took a train to Lu Province. The hotel he chose was not far from the District Court, less than ten minutes' walk. Because at nine o'clock tomorrow morning, Peng Huanan's theft case will be heard in the district court.

The summer sun at eight or nine o'clock is not very comfortable for people. After the door of the district court opened, Fang Yi and Peng Huanan's daughter-in-law Liu Fangzhi walked into the courtroom.

Although it was a public trial, there were not many people in the auditorium. Liu Fangzhi listened nervously as the prosecutor read out the indictment.

"...After the defendant Peng Huanan terminated the labor contract with the victim's technology company, he still kept the keys to the workshop and warehouse, and took the opportunity to steal property in the victim's warehouse, and after selling it, he kept the stolen money as his own. After verification, the stolen property was found The total value is more than 53,800 yuan.

The public prosecutor believes that his behavior has violated the provisions of Article 264 of the Criminal Law of the People's Republic of China. The criminal facts are clear and the evidence is reliable and sufficient. He should be held criminally responsible for the crime of theft. According to the provisions of Article 176 of the Criminal Procedure Law of the People's Republic of China, if a public prosecution is instituted, please be sentenced in accordance with the law. "Inspector Gao's tone was as cold as ice.

"Defendant Peng Huanan, did you hear clearly the indictment just read out by the prosecutor? Do you have any objection to the criminal facts and charges charged against you in the indictment?" The presiding judge is a tall man with a square face.

"Listen clearly, I have no objection to the facts of the crime, but I have an objection to the charge. The keys to the workshop and warehouse were given to me by the company. During the company's suspension of production, I was still responsible for the workshop affairs. The general manager also approached me and told me that he would be waiting for the company. After resuming work, I will still serve as the workshop director.

Until the time of the incident, the company did not take back the workshop and warehouse keys from me. It asked me several times to open the door to the workshop to check the condition of the machinery and equipment, and to sell off old equipment. In fact, after the labor contract expired, I was still managing the workshop and warehouse, so I was not guilty of theft. "Peng Huanan defended.

A few days ago, when Fang Yi went to the detention center to meet with Peng Huanan, he informed him of the defense plan and answered his inquiries. Peng Huanan is a smart man. He naturally knows what to say during the trial without Fang Yi reminding him.

"The public prosecutor can interrogate the defendant regarding the criminal facts charged in the indictment," the presiding judge said.

"Okay, presiding judge." Prosecutor Gao turned to look at Peng Huanan in the defendant's seat and asked: "Defendant Peng Huanan, what position did you hold in the victim's unit before it stopped production?"

"Be the workshop director." Peng Huanan said.

"After the victim unit stopped production, how were the workers in your workshop relocated?" Inspector Gao asked.

"It's already been a long vacation! Later, people started to resign one after another, and basically everyone left." Peng Huanan said.

"After the labor contract expired, did you ask the company to renew the labor contract?" Inspector Gao asked.

"No, the company was half-dead at the time, so I didn't mention renewing my contract," Peng Huanan said.

"You mentioned before that the general manager intends to keep you as the workshop director after work resumes. So has the company mentioned to you about renewing the labor contract?" Inspector Gao asked.

"I never mentioned it, but..." Peng Huanan said.

"Defendant Peng Huanan, you answer whatever I ask you. You don't need to defend yourself, do you understand?" Prosecutor Gao interrupted Peng Huanan.

"Understood!" Peng Huanan said.

"After the labor contract expires, will the company still pay you social security and pay you wages?" Inspector Gao asked.

"After the labor contract expired, social security was stopped! During the suspension period, living expenses were paid without wages. Later, when the labor contract expired, the living expenses were also stopped." Peng Huanan said.

"How many door locks are there in the workshop and warehouse? Have they been changed?" Inspector Gao asked

"There are four locks in total, two of which have been replaced." Peng Huanan said.

"Who replaced it?" Inspector Gao asked.

"I changed it." Peng Huanan said.

"What was your motive for changing the locks on the gate and warehouse?" Inspector Gao asked.

"I had no income at the time and couldn't find a suitable job, so I wanted to use the things in the warehouse to exchange for some money to supplement my family's income." Peng Huanan looked ashamed.

"Did you take the items out of the warehouse and sell them for money before or after the labor contract expired?" Inspector Gao continued to ask.

"After the labor contract expires." Peng Huanan said.

"Presiding Judge, I'm done asking!" Prosecutor Gao said.

"Does defendant Peng Huanan's defender need to ask questions to the defendant?" the presiding judge asked.

"I need to ask a question." Fang Yi said.

"Defendant Peng Huanan, who has the keys to the workshop and warehouse doors?" Fang Yi asked.

"There are two large locks on the doors of the workshop and the warehouse. A workshop key and a warehouse key are one set. There are two sets in total. The deputy director and I each get one set." Peng Huanan said.

"During the company's shutdown, what was your main job before the labor contract you signed with the company expired?" Fang Yi asked.

"During the company's shutdown, all the workers in the workshop left. The deputy director and I took turns on duty, responsible for the management of the workshop and warehouse. The company sometimes brought investors over to check on the situation in the workshop. We were responsible for cooperating," Peng Huanan said.

"What happens after the labor contract expires? Will you still stay in the workshop?" Fang Yi said.

"After the labor contract expired, because the company no longer paid me living expenses and paid social security, I was at home when I had nothing to do. Occasionally I would go to the workshop and the company would call me if something happened," Peng Huanan said.

"After the labor contract expired, did the company call you? I mean during the time you were at home?" Fang Yi asked.

“Initially, the company called me and the deputy director once and asked us to cooperate with the lawyers and accountants sent by the investors to inventory the workshop property, but then nothing happened.

Later, the deputy director went to work in a friend's company, and I saw that there was no timetable for the company to resume work, so I had evil thoughts..." Peng Huanan said.

"Did the company require you to hand over the keys to the workshop and warehouse?" Fang Yi asked.

"No, I had the keys to the workshop and warehouse in my hand at that time, and the company management knew it. After my labor contract expired, the company never mentioned asking me to hand over the keys." Peng Huanan said.

"Presiding judge, the defender has finished asking questions." Fang Yi said.

"The following is the presentation of evidence and cross-examination. Do the prosecution and defense parties and the defendant have any new evidence that needs to be submitted?" the presiding judge asked.

"No." Sanfang said.

"The prosecutor will present evidence below," the presiding judge said.

…

Fang Yi and Peng Huanan had no objections to the evidence presented by the prosecutor, and Peng Huanan had nothing to defend against the fact of stealing the company's property. He accepted both. The focus of the dispute between the prosecution and the defense in this case is the qualitative issue of the case, that is, the crime.

“The facts of this case have been clearly investigated, the court investigation has ended, and now the court debate has begun. The court debate mainly revolves around the disputed facts that have not been certified by the court and the issue of how the law should be applied based on the facts.

Next, the prosecutor will speak first. "The chief judge said.

"...The prosecutor believes that after the expiration of the defendant Peng Huanan's labor contract, he stole the property of the victim's technology company for the purpose of illegal possession, sold it, and kept the stolen money as his own. His behavior has constituted the crime of theft, and the amount It’s huge, we recommend that the defendant Peng Huanan be sentenced to six years in prison. Please ask the court to judge according to law. Over!” said Prosecutor Gao.

"The defendant Peng Huanan defended himself," the presiding judge said.

“I did not renew my labor contract with the technology company because the technology company stopped production at that time, and the general manager told me that I would still serve as the workshop director after resumption of work, because he planned to renew the labor contract with me after production resumed.

I admit that I stole the company's property, but I took advantage of the convenience of being in charge of the keys to the workshop and warehouse doors, which should be considered job embezzlement..." Peng Huanan argued.

"The defendant Peng Huanan's defender will give his defense opinion below," the presiding judge said.

"Presiding Judge, Judge:

The defender believes that the characterization of criminal cases should focus on the substance rather than the form. The substantive basis for judging whether a person is an employee of the unit is whether he has certain job responsibilities or undertakes certain business activities in the unit. As for whether he has signed a contract with the employer The employment contract and whether it is within the employment contract period are only part of the formal examination to review and determine the identity of the subject.

In other words, whether the defendant Peng Huanan committed the crime of job embezzlement should be examined whether he actually assumed certain "responsibility" in the victim unit and used his duties to facilitate the illegal misappropriation of the property of the victim unit.

Returning to this case, although defendant Peng Huanan's criminal behavior occurred after the expiration of the labor contract, Peng Huanan was still actually performing management duties at that time and had management authority over the workshop and warehouse, which met the conditions for the crime of job embezzlement.

Therefore, the defender believes that Peng Huanan’s behavior constitutes the crime of job embezzlement. In view of the small amount of his crime and his active cooperation with the public security organs in the investigation, which has mitigating circumstances, it is recommended that the defendant Peng Huanan be given a suspended sentence. complete. "Fang Yi said.

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

“...The prosecutor believes that Peng Huanan’s criminal behavior occurred after the labor contract he signed with the victim’s technology company expired, and the two parties did not renew the labor contract. At this time, Peng Huanan was no longer an employee of the technology company, and the technology company was in the process of shutting down at the time. In this state, Peng Huanan has no "position" to exercise. Therefore, Peng Huanan does not meet the main requirements of the crime of job embezzlement and should be punished with the crime of theft. Over." Prosecutor Gao said.

“The defender can respond to the prosecutor’s opinions,” the presiding judge said.

“Okay, the defender made the following comments regarding the prosecutor’s opinions and responses:

The defendant Peng Huanan, as the workshop director, and the deputy director were jointly responsible for keeping the door keys of the workshop and warehouse, and he was responsible for the safekeeping of the warehouse property.

Although the labor contract signed between Peng Huanan and the technology company has expired, according to the evidence submitted by the prosecutor, both the general manager of the technology company and Peng Huanan confirmed that the technology company plans to continue to hire the defendant Peng Huanan as the workshop director after resumption of work.

Technology companies know the importance of workshop and warehouse keys. If they don’t want Peng Huanan to continue to be the workshop director, they can take back the keys. But in fact, the technology company has never made a request to take back the keys. After the labor contract expires, Peng Huanan They still perform their duties of custody of the warehouse property, so there is a de facto labor relationship between the two parties.

Therefore, the failure to renew the labor contract does not affect the labor relationship between Peng Huanan and the technology company. Peng Huanan still meets the requirements for the subject of the crime of job embezzlement. complete. "Fang Yi said.

"Does the prosecutor need to continue to respond to the defender?" the presiding judge asked.

"Response is needed." Prosecutor Gao felt that he had encountered a difficult opponent: "We believe that the defendant Peng Huanan has no independent management rights over the embezzled property. His behavior of using joint management rights to steal the property of his unit is still It should be classified as the crime of theft, not as taking advantage of one’s position.”

“The defender can respond to the prosecutor’s opinions,” the presiding judge said.

"Okay, in response to the prosecutor's comments, the defender responded as follows:

The defender believes that the objective aspect of establishing the crime of official embezzlement requires that the convenience of his position must be used, that is, the defendant Peng Huanan took advantage of his convenience in managing the unit's property to illegally take the unit's property as his own.

The "management" we are talking about means that the actor is directly responsible for the safekeeping, handling and use of the unit's property, and also has certain rights to dispose of the unit's property.

In practice, in order to realize the company management requirements of mutual restraint and mutual supervision, the control, disposal and management rights of the unit's property are often exercised by multiple people. For example, the financial department has both finance and cashiers. This is to restrain and control each other. supervision.

Therefore, after the expiration of the labor contract, the defendant Peng Huanan's management authority over the victim's technology company is still within the scope of his responsibilities when he was (workshop director). The convenience arising from this management authority will not be affected by the existence of other common The manager is affected, and his behavior of taking advantage of the management power to steal property of the victim unit does not affect the determination of "taking advantage of the position".

In this case, the keys to the technology company’s workshop and warehouse doors were kept by the defendant Peng Huanan and the deputy director of the workshop respectively. Although the management rights are jointly exercised by the workshop director and deputy director, Peng Huanan's management authority over the workshop warehouse properties is not reduced by the existence of a joint manager. Therefore, the defendant Peng Huanan should be guilty of job embezzlement. "Fang Yi said.

The presiding judge wanted to stop there, but seeing that Prosecutor Gao seemed to have something more to say, he continued: "The prosecutor can continue to respond to the defender's opinions."

"Okay, presiding judge. We believe that in this case, the defendant Peng Huanan used the most commonly used method in theft crimes - picking locks. This just shows that the defendant Peng Huanan's behavior of stealing warehouse property has gone beyond the scope of 'taking advantage of his position' The scope of the case has changed, and the nature of the case has changed, so this case should be classified as the crime of theft." Prosecutor Gao was dissatisfied, so give it a try, I don't believe you and I can't defeat you.

"The defender can continue to respond to the prosecutor's opinions." The presiding judge found the debate between the two to be quite interesting. The rationale was not clear, and the debate was thorough, making it easier to write the verdict later.

"Okay, presiding judge. What the prosecutor just said is the special feature of this case.

The defendant Peng Huanan used two keys he kept to open a large lock and at the same time pried open two other large locks to steal property from the warehouse of the victim's technology company.

The defender believes that there are four locks in the workshop and warehouse. In the process of stealing property, the defendant Peng Huanan used the two keys he was responsible for keeping to open the two locks, and then used the general theft method of picking locks to finally enter the warehouse and steal the property. It can be seen that It seems that the act of picking locks played a major role, but judging from the entire implementation process, the key to defendant Peng Huanan's ability to successfully achieve the purpose of illegally possessing the unit's property was to take advantage of his position as the workshop director.

To put it bluntly, if the defendant Peng Huanan had not taken advantage of his position, his criminal behavior would not have been successful. Because the workshop was in a state of shutdown at the time of the incident, non-unit personnel were restricted from entering and exiting the factory area by the guards. Precisely because the defendant Peng Huanan once served as the workshop director and held the keys to the workshop and warehouse, after his labor contract expired, He was still performing his duties as the workshop director, so he was able to drive in and out of the factory many times and commit crimes. This is essentially different from the crime of theft where the perpetrator has visited the location and is familiar with the environment where the crime was committed.

It can be seen that the convenience of the defendant Peng Huanan's position is the main factor in the success of his crime, which also determines that it is essentially different from ordinary lock picking and theft. Therefore, the defendant Peng Huanan's behavior should still be regarded as official embezzlement. "Fang Yi said.

"Does the prosecutor need to continue to respond to the defender's opinions?" The presiding judge looked at Prosecutor Gao.

"Thank you, presiding judge. According to Article 271 of the Criminal Law, the crime of occupational embezzlement is described as: 'Staff of a company, enterprise or other unit who take advantage of their position to illegally take possession of the unit's property as their own ...'

This article of law does not specify the specific behavior of the crime of embezzlement. We believe that the behavior of the crime of embezzlement described in this article should not include theft. Therefore, defendant Peng Huanan's behavior should still be classified as the crime of theft. "Inspector Gao is already a bit out of his depth. Although he feels unhappy, he really can't find a better point to refute.

"The defender can respond to the prosecutor's opinions." The presiding judge didn't care what the prosecutor thought, but he listened with interest and found it interesting.

“The defender believes that the method of secret theft is also one of the forms of embezzlement in the crime of official embezzlement. Although Article 271 of the Criminal Law does not provide detailed provisions on the means of conduct in the crime of official embezzlement, it does not prevent us from reaching the above conclusion. Conclusion. The reasons are as follows:

According to the "Interpretations on Several Issues Concerning the Application of Law in Handling Criminal Cases Violating the Company Law, Embezzlement, Misappropriation and Other Criminal Cases" issued by the Supreme People's Court in 1995, the word "misappropriation" is clarified, which means that the perpetrator embezzles, misappropriates, and other criminal cases. Stealing, defrauding or illegally possessing the company or enterprise's property by other means.

Although the above interpretation was repealed in January 2013, we can still see from it the Supreme Court’s understanding of the word ‘misappropriation’ in the crime of official embezzlement.

In addition, compared with common property infringement crimes such as theft and fraud, the special feature of the crime of job embezzlement is that it takes advantage of the position, which not only infringes upon the property rights of the victim unit, but also violates the employer's requirement for the perpetrator to be diligent and responsible. As for the specific means of implementation, I believe that as long as the person takes advantage of his position to commit property infringement, whether it is secret theft, fraud, or other means, it will not affect the perpetrator's determination of the property rights infringement of the victim unit. This is also Article 1 of the Criminal Law. One of the reasons why Article 271 does not list specific behavioral methods.

There are various forms of embezzlement in the crime of official embezzlement. There is no need to restrict the specific behavioral methods of the perpetrator. As long as the perpetrator takes advantage of his position and takes the property of the victim unit as his own, it is an act of the crime of official embezzlement. Way.

Therefore, the defendant in this case misappropriated the unit's property by secret theft method should be determined as official embezzlement. complete. "Fang Yi said.

…

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