Lawyer's character

"Second, there was property confusion between the two during their cohabitation. According to the evidence provided by the public prosecution agency, during the period of cohabitation, Zhao Xiaojie transferred a total of 1,467,000 yuan in salary income to Zhou Yingqi. The public prosecution agency did not transfer this Part of the amount was included in the crime amount, which also shows that the public prosecution agency recognized the mixing of the two people's properties.

Third, the defendant Zhou Yingqi sought benefits for Zhao Xiaojie and Zhao Xiaojie sent money to Zhou Yingqi. It cannot be ruled out that voluntary contributions were driven by emotional factors.

According to the provisions of Article 55 of the Criminal Procedure Law, "reliable and sufficient evidence" requires that "the evidence in the entire case has been comprehensively reviewed and reasonable doubt has been eliminated as to the facts identified."

The so-called 'reasonable doubt' must not be general or vague, but should be specific, based on ordinary people's judgment standards and rules of thumb, and based on the existing evidence to judge legal facts. If it is believed that there are other possible results , and it is enough to shake the basis of fact determination and constitute reasonable doubt.

In this case, Zhou and Zhao had the will and emotional foundation to reorganize their family. Under this situation, one party tipped off the other party in terms of job promotion and accountability, and intervened with relevant leaders. Although it is suspected of violating discipline, it is also considered a violation of discipline. Human nature.

According to the confessions and witness testimonies of Zhao Xiaojie and Zhou Yingqi, it can be seen that the financial transactions between Zhou and Zhao were based on the idea of ​​living together in the future, as well as to please, win the trust of the other party, or to provide spiritual compensation to the other party because they could not get married.

Assuming that Zhou Yingqi and Zhao Xiaojie finally get married, the financial exchanges between them will become their common property, and they will become a real community of interests, and there will be no room for power-money transactions.

The evidence in the case can reflect that the two subjectively never regarded it as a transaction, but a voluntary contribution driven by emotional factors.

Therefore, there is no correspondence between Zhou Yingqi’s behavior of accepting money from her lover (Zhao Xiaojie) and her behavior of asking for bribes from her lover (Zhao Xiaojie), and the existing evidence cannot prove that Zhou Yingqi solicited bribes. The existing chain of evidence cannot lead to a single conclusion. The payments received by Zhou Yingqi should not be characterized as bribes.

2. Defendant Zhou Yingqi’s acceptance of 300,000 yuan from Jiayue Company should not be considered bribery.

According to Article 388 of the Criminal Law, state functionaries take advantage of the convenience created by their powers or status, and through the behavior of other state functionaries in their duties, seek illegitimate benefits for the client, demand property from the client, or accept Anyone who entrusts someone with property will be punished for accepting bribes.

In this case, Zhou Yingqi only recommended Jiayue Company to a third-party private technology company, and this recommendation was also based on Zhao Xiaojie's request and the special relationship between the two parties.

Moreover, the third-party technology company also cooperated with Jiayue Company to carry out business after comprehensively considering its strength. It was not affected by Zhou Yingqi's authority, and there was no unfair interest relationship between the two parties.

To sum up, although the defendant Zhou Yingqi had violated regulations, his acceptance of money from Zhao Xiaojie and Jiayue Company was not considered bribery. complete. "Fang Yi said.

Regarding the characterization of the 300,000 yuan payment given by Jiayue Company, Fang Yi deliberately diverted the judge's attention to the relationship between Zhou Yingqi and the technology company. In fact, it was a smoke bomb he deliberately set off. He wanted to lead the judge by the nose. As for whether the judge is fooled, that is not something he can control.

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

"Presiding Judge, Judge: Regarding the defense opinions of the defender, we mainly express the following two opinions:

1. The special relationship between Zhou Yingqi and Zhao Xiaojie should not be an obstacle to determining that Zhou Yingqi had accepted bribes.

Taking the entire case into consideration, the two are suspected of using their special relationship to cover bribery and bribery. The possibility that the two formed an offensive and defensive alliance before the incident due to their special relationship cannot be ruled out. Therefore, all the money received by Zhou Yingqi should be regarded as bribery money.

2. The 300,000 yuan received by Zhou Yingqi from Jiayue Company should be classified as bribery money

According to the "Minutes of the National Court Symposium on Trial of Economic Crime Cases" ([2003] No. 167), "taking advantage of one's power or position to create convenient conditions" as stipulated in Article 388 of the Criminal Law refers to behavior Although there is no subordinate or restrictive relationship between the person and the GJ staff who are exploited by him, the perpetrator has taken advantage of his authority or status to have influence and certain work connections, such as between GJ staff in different departments within the company. , between GJ staff in superior and subordinate units who have no functional affiliation or restriction relationship, between GJ staff in different units who have working relationships, etc.

Specifically in this case, the third-party technology company is a supplier of the company where the appellant Zhou Yingqi works. As the deputy general manager of the company, Zhou Yingqi has a certain influence on the selection of suppliers, so there is a restrictive relationship between the two parties.

In this case, it cannot simply be determined based on the formal requirements that the relationship between Zhou Yingqi's company and the technology company is an equal civil subject relationship. In fact, Zhou Yingqi's company and herself have restrictions and influence on the third-party technology company. In addition, Zhou Yingqi's influence is also confirmed from the fact that after Zhou Yingqi recommended Jiayue Company to the general assistant of the technology company, the two parties quickly reached a business cooperation.

It can be seen that the cooperation between Jiayue Company and the technology company took advantage of Zhou Yingqi's position. Zhou Yingqi's acceptance of money from the two should be regarded as bribery. complete! "The prosecutor said.

…

After the trial ended, the presiding judge announced a ten-minute adjournment and would make a decision in court later. Zhou Yingqi felt that Fang Yi's defense was very good. As for the verdict of the second trial, she could only do her best and leave it to fate.

Zhou Yingqi waited anxiously, just like waiting for a loved one to come to her door, afraid that he would come, afraid that he would not come, and even more afraid that he would do whatever he wanted.

Ten minutes passed quickly, and the three judges of the collegial bench entered the court.

"... Now the trial continues, and the collegial panel has reached a verdict in this case. Based on the opinions of the prosecution and defense, combined with the focus of the dispute in this case, and based on the facts and evidence of this case, this court makes the following comments:

Based on the facts, nature, circumstances and degree of harm to society of Zhou Yingqi's crime, the court of first instance made a judgment in accordance with the law with clear facts, reliable and sufficient evidence, appropriate sentencing, and legal trial procedures. However, the legal application of some criminal facts was wrong and the judgment was made in accordance with the law. Change the sentence.

This court held that Zhou Yingqi’s acceptance of 300,000 yuan from Jiayue Company constituted the crime of accepting bribes. Therefore, the protest opinion of the procuratorial organ shall be adopted. Other protest opinions from the procuratorial organs will not be adopted. The verdict is as follows:

1. Uphold the first and third items of the first-instance criminal judgment of the Intermediate People’s Court;

2. Revoke the second item of the first-instance criminal judgment of the Intermediate People’s Court;

3. Of the RMB 2.8 million seized in the case, RMB 300,000 will be confiscated as illegal gains, RMB 300,000 will be included in Zhou Yingqi’s fine, and the remaining money will be returned to Zhou Yingqi. "The presiding judge pronounced the verdict.