Lawyer's character

"The court investigation is over and the court debate is now underway. Before the debate, the court draws the attention of both the prosecution and the defense that the debate should mainly focus on determining guilt, sentencing and other controversial issues.

The appellant Zhou Jiangmeng will speak first. "said the presiding judge.

Zhou Jiangmeng's speech was similar to what he said before. He held the letter in his hand and repeated what he said before. He wanted to say a few more words, but he was speechless for a moment and didn't know what to say. Finally, under the intervention of the judge, he ended his speech hesitantly.

"The defender of the appellant Zhou Jiangmeng has spoken," the presiding judge said.

"Presiding Judge, Judge: The defender believes that in this case, after the appellant Zhou Jiangmeng picked up Li Yuangong's bankbook, he illegally withdrew other people's bank deposits by guessing the withdrawal password.

The above-mentioned behavior of the appellant includes the act of using other people's names to defraud the bank's trust, and the act of secretly assigning withdrawal passwords and withdrawing other people's bank deposits without others' knowledge. But in the final analysis, the appellant’s behavior is a form of fraudulent use and should be classified as a crime of fraud. The specific reasons are as follows:

1. Generally speaking, stealing other people's property and defrauding other people's property by fabricating and concealing the truth are both actions that occur without the knowledge of the owner or custodian of the property, but they have different meanings.

In the process of stealing other people's property, "unknowing" means that the owner or custodian of the property is unaware of the objective behavior of the perpetrator (or the perpetrator subjectively believes that it has not been discovered). From this, it can be seen that in During the entire theft process, there was no problem of participation and cooperation of property owners and custodians.

However, in the process of defrauding property by fabricating and concealing facts, "unknowing" means that the owner and custodian of the property do not know the truth based on a wrong understanding, which is ignorance of the nature of the behavior. During the entire process of fraud, the owner of the property , the custodian is directly involved.

2. In terms of obtaining and transferring property, generally speaking, stealing property is an act performed unilaterally by the perpetrator without the owner or custodian of the property being aware. Fraud is the act of the property owner or custodian mistaking the fictitious facts for the real facts and consciously disposing of the property.

3. As a property crime, the essence of this case is the infringement of property ownership, and the acquisition of property is the key to the characterization of this case.

The appellant in this case cracked the passwords held by others by guessing other people's withdrawal passwords, which can be regarded as an act of theft. However, guessing the password does not mean that he has obtained other people's deposits, but is only a means to further obtain other people's deposits. Moreover, the password itself has no value and therefore does not have independent legal significance.

As far as this case is concerned, before Zhou Jiangmeng obtained Li Yuangong's bank deposits through the above methods, the deposits were completely under the control and control of the bank. Zhou Jiangmeng was able to successfully withdraw other people's deposits because he relied on the trust of the bank and the bank's delivery, and the bank had a clear understanding of the delivery of deposits.

The bank's trust is based on a wrong judgment, and this is the result of Zhou Jiangmeng concealing the truth and using someone else's name so that the bank mistakenly believes that he has the legal qualifications to withdraw money without knowing the truth. Therefore, this type of behavior is a typical fraudulent use of money.

In summary, the appellant Zhou Jiangmeng’s illegal withdrawal of other people’s deposits by guessing passwords is an act of fraud, and his behavior should be convicted and punished for fraud.

Considering that the appellant is a first-time offender and an occasional offender, all the stolen money was recovered after the incident, and he had a good attitude of pleading guilty after being brought to justice, the defender recommended that he be sentenced to three years in prison. complete. "Fang Yi finished his defense opinion and looked at the presiding judge.

The first draft of the defense opinion was written by Yun Qiao. Fang Yi gave Yun Qiao an idea and then tried to get her to write the defense opinion. After getting Yun Qiao's first draft, Fang Yi made many revisions, and the final defense opinion was completely different from Yun Qiao's first draft.

Although the first draft of the defense opinion was revised beyond recognition by Fang Yi, Yun Qiao was very excited because the master asked her to start writing the defense opinion and finally got to the core of the case. But she knew she still had a lot to learn. In Fang Yi's words, Yun Qiao's defense opinions were more like small essays, with too much nonsense.

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

"Presiding Judge, Judge: The prosecutor believes that the appellant Zhou Jiang snatched up other people's bankbooks and took them as his own. The nature of his behavior was an act of embezzlement.

After that, the appellant used the guessed passbook password to maliciously withdraw more than 140,000 yuan many times. After illegally taking other people's property as his own, he burned other people's passbooks and refused to return them. His behavior should constitute the crime of embezzlement.

We recommend that the defendant be sentenced to five years in prison, to be termed. Fang Yi was startled by the prosecutor's words.

Well, at the first instance, both the procuratorate and the court found Zhou Jiangmeng guilty of theft. At the second instance, the defender believed that the case should be charged with fraud, while the Municipal Procuratorate believed that the first-instance court mischaracterized the case and the appellant should be charged with embezzlement. Now that the case has been changed from AB option to ABC option, I wonder if the presiding judge will add another D to make the three missing and one more perfect.

On the trial bench, the presiding judge was thinking rapidly.

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

"Okay, presiding judge. Regarding the defender's defense, our views are as follows:

In this case, after the appellant Zhou Jiangmeng picked up the passbook that Li Yuangon dropped under the bench, he should have returned the passbook to Li Yuangon, but he failed to return it in time, thus forming a custody relationship between the two.

The bank book under the bench should essentially belong to Li Yuangon's forgotten belongings. The appellant Zhou Jiangmeng took possession of Li Yuangon's bank book and refused to return it. His behavior violated the provisions of Article 270 of the Criminal Law and should be punished. constitutes the crime of embezzlement. complete. ” the prosecutor responded.

"The defender can respond to the prosecutor's opinion." After a moment, the presiding judge said.

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

The defender believes that the appellant Zhou Jiangmeng picked up Li Yuanlong’s lost bank book and subsequently withdrew the deposit, which is not an act of embezzlement and should not be convicted and punished for embezzlement for the following reasons:

First, the prerequisite for misappropriation is that the perpetrator illegally takes possession of other people's property that is legally held by the perpetrator as his own, and the object of the crime should be the property that has been legally held by the perpetrator.

In this case, although the evidence on file cannot rule out that the appellant Zhou Jiangmeng legally held the bank passbook he found, it cannot be concluded that Zhou Jiangmeng has legally held the deposits under the passbook.

Because the victim Li Yuangon had a withdrawal password on the passbook, losing the passbook does not mean that he has lost control of the money in the passbook. Zhou Jiangmeng picked up the passbook and did not obtain the legal right to hold the money under the passbook. Therefore, the bank The money in the passbook is not the object of embezzlement, and there is no object of embezzlement in this case. "Fang Yi paused at this point, for no other reason than that his throat was too dry.