Lawyer's character

"The procuratorate has charged my brother with fraud and pretentiousness. If these two charges are proven, will the sentence be more severe?" Director Zhao asked.

"How should I put it? The procuratorate has charged your brother with two crimes, and it is recommended that several crimes be punished together. We believe that your brother's behavior is inconsistent with the law and should be punished according to the crime of pretentiousness and deception (choose a felony).

Generally speaking, the penalty for multiple crimes is more severe and the prison term is longer than the penalty for a single felony. "Fang Yi explained.

"Does concurrent punishment for several crimes mean that the sentences for the two crimes are added together to determine the sentence? For example, my brother is sentenced to three years for fraud and five years for pretentiousness and deception. How about concurrent punishment for several crimes and a total of eight years?" Director Zhao asked road.

"That's not the case. There is a special algorithm for punishing multiple crimes, and it is not a simple addition.

Article 69 of the "Criminal Law" stipulates that if a person commits several crimes before the judgment is pronounced (that is, the crimes should be punished together), except for those sentenced to death or life imprisonment, the total sentence shall be less than the total sentence and more than the highest sentence among the several sentences. , the sentence to be executed shall be determined at the discretion.

For example, as you just said, if someone commits fraud and is sentenced to three years, and if he commits pretentiousness and deception, he will be sentenced to five years. If the several crimes are punished concurrently, the total sentence is eight years, and the maximum among the several sentences is five years. The court will choose a sentence within the range of five to eight years, depending on the circumstances of the case. It may be six years, or it may be seven or eight years, depending on the circumstances of the trial. "Fang Yi explained.

"Oh, I understand. I thought it was just a simple addition and the verdict was over. There are so many things to say about feelings, which means that the trial is very important. Right, Lawyer Fang?" Director Zhao suddenly felt enlightened.

"Yes, you can say that. The circumstances of the case determined during the trial will affect the judge's sentencing." Fang Yidao.

Director Zhao finally went through the entrustment procedures and paid the legal fees. The legal fees were 40,000 yuan. Adding the previous 10,000 yuan, it was exactly 50,000 yuan.

Zhao Changguang's case went to trial a week later.

…

“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.

The prosecutor will speak first. "The chief judge said.

"Presiding Judge, Judge: ... This court believes that the defendant Zhao Changguang pretended to be a judge of the Provincial Court, and after defrauding the trust of others, he successively defrauded others of their property and other illegal benefits. Among them, the defrauding of other people's property constituted the crime of fraud; the defendant Zhao Changguang The act of defrauding other illegal benefits constitutes the crime of pretentiousness and fraud, and should be punished for several crimes.

Given that the defendant Zhao Changguang was once sentenced to five years in prison for committing fraud and pretentiousness, and within five years after his release, he committed a crime that should be sentenced to fixed-term imprisonment. He is a repeat offender and should be severely punished.

Several crimes were punished concurrently. This court recommended that the defendant Zhao Changguang be sentenced to seven years in prison. complete. "The young female prosecutor with ear-length hair in the prosecutor's seat said in a cold tone.

"The defendant Zhao Changguang defended himself," the presiding judge said.

“I acknowledge the facts of the alleged crime and apologize for the harm it caused to the victim, but I was just pretentious, not deceitful.

Regardless of whether I was defrauding money or defrauding women's trust, I was using a special identity as a cover. Even if I committed the crime of fraud, the laws are in conflict. I should be punished according to one crime and should not be punished for multiple crimes...

Please ask the court to make a ruling in accordance with the law on the basis of ascertaining the facts. I plead guilty and accept punishment. "Zhao Changguang said sincerely.

He was sentenced to five years before. During his sentence, in addition to working, he also read a lot of books on criminal law. Others read books to test their academic certificates. He read books to understand the crimes he committed and to study loopholes in the criminal law. . There is no need for a lawyer to explain what the prosecutor said. He fully understands that this is the result of his five years of study there.

Before Fang Yi went to the detention center to meet him, he also asked Fang Yi about relevant issues, so he was fully aware of what it meant to be punished for several crimes together.

Zhou Ying at the defense table was stunned, and thought to herself: This guy actually used the legal provisions, he is so professional, so shameless, so shameless, so...

The presiding judge was also very unhappy: It seems that the five years that this guy in front of him spent in prison were not in vain. He knows the law, and he should abide by the law. But this guy actually knows the law and breaks the law... It's really disgusting!

"Defendant Zhao Changguang's defender expressed his defense opinion," the presiding judge said.

"Presiding judge, judge: The defender believes that the defendant Zhao Changguang has repeatedly impersonated court staff and defrauded money and other benefits. His behavior violated the crimes of fraud and pretense and deception in the Criminal Law at the same time, and is a legal conflict in criminal law theory. If combined, his behavior should be punished with the crime of pretentiousness and deception, instead of being punished for several crimes together. The reasons are as follows:

1. The defendant’s behavior of deceiving the victims Zhou Hong and Zhou Yuan constituted the crime of pretense and deception.

The defender believes that the defendant Zhao Changguang defrauded Zhou Hong and Zhou Yuan's trust and then lived with them respectively on the pretext of introducing jobs and helping with complaints. His behavior constituted deception for the following reasons:

1. According to the provisions of Article 279 of the Criminal Law, the crime of pretentiousness and fraud disrupts social management order, and the object of its infringement is the prestige of state agencies and social public order. The crime of fraud infringes upon property rights, and the object of its infringement is the ownership of public and private property.

In this case, the defendant Zhao Changguang’s deception of Zhou Hong and Zhou Yuan did not infringe on the property rights of the two women, but only hindered social management order.

2. The crime of pretense and fraud is carried out by impersonating a person with a special identity, that is, pretending to be a staff member of a state agency to defraud others' trust in order to achieve the purpose of deception. The crime of fraud can be committed by any method of fabricating facts or concealing the truth.

The defendant Zhao Changguang in this case used the method of impersonating persons with special identities when he defrauded Zhou Hong and Zhou Yuan of other illegal benefits.

3. The criminal purpose of the perpetrator in the crime of fraud is to defraud others of property, while the main purpose of the perpetrator in the crime of pretense and fraud is to defraud other illegal benefits from others. Therefore, the crime of pretense and fraud does not have special requirements for the amount of property obtained by deception, while the crime of fraud requires that the amount of property obtained by deception is "relatively large."

In this case, the defendant Zhao Changguang defrauded Zhou Hong and Zhou Yuan into living together with the two women after defrauding their trust, which constituted defrauding other illegal benefits.

2. The defendant's act of posing as a court employee to defraud Zou Jie of money constitutes the crime of fraud and pretense. It is a conflict of laws and should not be punished for multiple crimes.

According to Articles 266 and 279 of the Criminal Law, the method of fabricating facts or concealing the truth used in the crime of fraud includes the method of 'impersonating a staff member of a state agency'. In the crime of pretense and fraud, the illegal benefits obtained by the perpetrator include the "public and private property" defrauded in the crime of fraud.

In this case, the defendant Zhao Changguang pretended to be a court employee to defraud others' trust and illegally possessed others' relatively large amounts of property. This was consistent with the criminal constitution of the crime of fraud and the crime of pretense and deception. This situation is a combination of legal provisions.

Concurrent legal provisions refer to a criminal act that meets the constitution of several crimes at the same time, so that several legal provisions can be applied at the same time, but only one felony can be punished. Therefore, only the crime of pretentiousness and deception can be punished in this case.

In view of the fact that the defendant truthfully confessed, pleaded guilty and accepted punishment after being brought to trial, and indeed showed remorse, the defender recommended that the defendant be sentenced to three years in prison. complete. "Fang Yi said.

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

“In response to the defender’s defense opinions, we mainly express the following opinions:

In this case, the defendant Zhao Changguang pretended to be a staff member of a state agency and deceived multiple victims, defrauding others of their property and other illegal benefits other than property, and defrauding others of their trust and living with them.

We believe that several actions committed by the defendant Zhao Changguang in this case should be evaluated separately. The defendant’s actions toward Zhou Hong and Zhou Yuan constituted the crime of pretense and deception, and the defendant’s actions toward Zou Jie constituted the crime of fraud. Crime and punishment. complete. "The prosecutor said.

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

“Based on the prosecutor’s defense opinions and response, the defender issued the following defense opinions:

The defender believes that there is no sufficient reason or necessity to impose concurrent punishment for several crimes in this case. The reasons are as follows:

1. The defendant’s behavior is a serial offender

In this case, within just a few months, the defendant Zhao Changguang defrauded Zou Jie of money (consisting of the crime of fraud and pretense and deception), and defrauded Zhou Hong and Zhou Yuan of other illegal benefits (consistent of the crime of pretense and deception).

However, the defendant Zhao Changguang continuously carried out the above-mentioned deception by pretending to be a staff member of a state agency based on a general intention. Therefore, the defendant's behavior should be classified as a serial offender under the criminal law, and he should be punished as one crime, that is, he should be punished according to the crime of pretentiousness and deception.

2. The defendant’s several acts are cross-competing among legal provisions.

In this case, the defendant Zhao Changguang pretended to be a staff member of a state agency and defrauded others of their property, which constituted both the crime of pretense and deception and the crime of fraud. The crime of fraud cannot include the crime of pretense and deception. This leads to the overlapping relationship between the crime of pretense and deception and the crime of fraud, that is, the overlapping of legal provisions.

The evidence in the case shows that the amount of property defrauded by the defendant Zhao Changguang (five thousand yuan) only reached the starting point for the crime of fraud. In the case of competing laws (cross-competing), one felony should be applied, so this case should be Convicted of the crime of pretentiousness and deception.

In addition, in judicial practice, concurrent punishment for several crimes of the same type before judgment is not applicable, so there is no reason and necessity for concurrent punishment for multiple crimes in this case. complete. "Fang Yi said.

…

"... This case has been reviewed by the collegial panel and a judgment has been formed. 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 made the following comments:

The defendant Zhao Changguang pretended to be a judge of the People's Court and defrauded others of their trust. He repeatedly defrauded others of money and other illegal benefits. The circumstances were serious and his behavior constituted the crime of fraud. Among them, the defendant Zhao Changguang's behavior of defrauding others of money also violated the "Criminal Law" The crime of fraud falls under the same provisions of the law and should be punished as a felony.

Because the amount of property obtained by the defendant Zhao Changguang's fraud was relatively small, the penalty for fraud was relatively light. Therefore, he should be punished for the crime of pretentiousness and fraud, and should not be punished for several crimes together.

The defendant Zhao Changguang was once sentenced to five years in prison for committing fraud and pretentiousness. Within five years after his release, he committed a crime that should be sentenced to fixed-term imprisonment. He is a repeat offender and should be severely punished.

In accordance with the provisions of Articles 279 and 65 of the Criminal Law of the People's Republic of China, the verdict was that the defendant Zhao Changguang was guilty of pretense and fraud and was sentenced to four years in prison. "The presiding judge pronounced the verdict in court.

After hearing the verdict, Zhao Changguang was stunned. It had been another four years, and he didn't know if he would be imprisoned in the same prison this time.

Director Zhao, who was sitting in the auditorium, felt unhappy. Although the sentence this time was one year less than the last time, four years was not too short. It should be! Deserve it! Who told you not to do good things?

The court's verdict was within Fang Yi's estimated sentence. He planned to meet with Zhao Changguang in a few days and ask him if he wanted to appeal. However, looking at the defendant's calm look, it didn't look like he wanted to appeal.

Fang Yi guessed correctly. Based on Zhao Changguang's understanding of the law, he felt that appealing was of no use except a waste of time. It would be better to go to jail early and avoid being looked down upon and beaten by other prisoners in the detention center.

After the first-instance verdict was pronounced, within the statutory time limit, the defendant Zhao Changguang did not file an appeal, and the procuratorate did not file a protest, so the verdict became legally effective. Zhao Changguang's case was concluded in this way.

In the afternoon of the next day, Zhou Ying sent the written summary of the case closure to Fang Yi, and then quickly walked into Fang Yi's office.

"Lawyer Fang, I've finished the case closing summary you asked me to write. It's just..." Zhou Ying said.

"Just what?" Fang Yi looked away from the computer screen and looked at Zhou Ying.

"I don't quite understand something. What we learned during the judicial examination was to choose a felony by imagining it, and the special laws apply when the statutes are in conflict. During your trial, you said that the statutes were in conflict with each other, and the court also determined it this way. Could it be that I learned Is your knowledge outdated?" Zhou Ying looked at Fang Yi in confusion.

“Actually, the knowledge you learned is not outdated, it’s just a bit superficial.

The concurrence of legal provisions can be roughly divided into two types. One is the concurrence of all-inclusive provisions. For example, the crime of intentional or negligent disclosure of state secrets stipulated in Article 398 of the Criminal Law and the crime of leaking state secrets stipulated in Article 400 of the Criminal Law. The crime of intentional or negligent disclosure of military secrets stipulated in Article 32 is inclusive concurrence; the other is the concurrence of overlapping legal provisions. For example, the relationship between the crime of fraud and the crime of pretense and deception involved in this case means that the crime of fraud cannot All include pretense and deception.

Only when the behavior of pretentiousness and deception is manifested in defrauding a larger amount of property, may there be overlapping legal provisions with the crime of fraud, that is, cross-competition.

I say this, can you understand it? "Fang Yi asked.

"Well, I understand this." Zhou Ying said.

"The general view is that special laws should be applied first when there are competing legal provisions. However, a few scholars believe that under special circumstances, if special laws are too light, you can choose to apply heavy laws.

The concurrence of legal provisions you learned during the exam is a general interpretation, which is consistent with inclusive concurrence. The applicable principle is that special legal provisions are superior to ordinary law provisions, that is, special legal provisions are applicable and general law provisions are not applicable. In this way, the crime and punishment can be proportionate.

Cross-confidence is a special situation, and the principle of applying heavy legal provisions over light legal provisions is applicable, that is, choosing to apply legal provisions with heavier legal penalties.

This is because the reality is always more complicated than what is described in books. For example, in Zhao Changguang’s case, the sentence for fraud is definitely shorter than that for pretense and fraud, because he only defrauded five thousand yuan and had just reached the starting point for fraud. point, so only by applying the crime of pretentiousness and deception can the crime and punishment be suitable. "Fang Yi explained.

"Oh, I seem to understand a little better." Zhou Ying said thoughtfully.

"When you go back to bind the case file, go through Zhao Changguang's case file again. The meaning will be apparent after reading it a hundred times. The same goes for reading the case file. You must understand the judge's thinking in judging the case. Only in this way can you grow quickly." Fang Yi smiled. road.

"Thank you, Lawyer Fang." Zhou Ying said sincerely. It is not easy to meet a master who is willing to teach his disciples sincerely these days.