Lawyer's character

Before going abroad, Geng Zhifan's younger brother Geng Zhixuan was responsible for overseas visa consulting services at a study abroad agency in this province. At the time of the incident, Geng Zhixuan was preparing for YM procedures and was preparing to reunite with his brother in Bangzi Country.

During this process, Geng Zhixuan discovered that the company's visa business actually had many loopholes, so he wanted to make a profit before going out. So without resigning, he secretly used his girlfriend's ID card to set up a company called Better Future, and then transferred part of the visa business of his company to his own Better Future company.

Subsequently, Geng Zhixuan signed a "Consultancy Agreement" with twelve people in the name of Better Future Company to provide overseas visa services to customers, and collected visa fees in the name of Better Future, totaling 380,000 yuan.

However, Geng Zhixuan did not actually apply for overseas visas for the above-mentioned personnel. All the money was used to pay the rent of Bright Future Company, return arrears or squander.

Geng Zhixuan later fled to Bangzi Country and later obtained the nationality of that country. He was arrested by the police after entering the country at the beginning of this year.

The Intermediate Court held that the defendant Geng Zhixuan fabricated facts for the purpose of illegal possession and defrauded others of their money, and his behavior constituted the crime of fraud.

The amount of fraud was extremely huge and the circumstances were serious. In accordance with the provisions of Articles 266, 6, 12, 35 and 64 of the Criminal Law, the verdict is as follows:

1. The defendant Geng Zhixuan was convicted of fraud and was sentenced to 11 years in prison, fined RMB 300,000, and deported.

2. Continue to recover the proceeds from Geng Zhixuan’s fraud and return them in accordance with the law.

After the first-instance verdict was announced, Geng Zhixuan refused to accept the verdict and filed an appeal. The court of second instance was the Provincial High Court, so Geng Zhixuan’s brother Geng Zhifan came to the seat of the Provincial High Court and prepared to entrust a local lawyer to represent his brother’s case.

Geng Zhifan is an investor and has investments in this city, so he knows a lot of local businessmen. Geng Zhifan found a few old friends in this city. After being recommended by his friends, Geng Zhifan met with four lawyers in a row in the past two days. Fang Yi was The fourth lawyer he met.

"Mr. Geng, although your brother and the defense lawyer both pleaded not guilty in the first trial, judging from the circumstances of the case, your brother definitely committed a crime, but it should be a unit crime, and it should be a contract fraud crime... I think There is still a chance in this case.

But the opportunity I am talking about is not the opportunity to be innocent, but the opportunity to plead guilty. "Fang Yi said bluntly.

"Oh? What's the difference between the crime of contract fraud you mentioned and the crime of fraud sentenced by the court?" Geng Zhifan looked at Fang Yi doubtfully. In his opinion, they were both frauds, but the names were different.

"Let me give you a rough explanation. There is a principle of lenient and lenient in the Criminal Law. Your brother's case happened before Hong Kong's return to Hong Kong. This time point also happened to be the time when the Criminal Law was revised. So your brother's case has A question of application of new or old law.

The "Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Fraud" (effective from April 8, 2011): Fraud of public or private property worth 3,000 yuan to more than 10,000 yuan and 30,000 yuan If the amount is more than 100,000 yuan or more than 500,000 yuan, it shall be deemed as "relatively large amount", "huge amount" and "especially huge amount" as stipulated in Article 266 of the Criminal Law.

According to the provisions of the implementation details of the province's "Sentencing Guidance on Common Crimes", the statutory sentencing starting point and benchmark penalty is fixed-term imprisonment of between three years and less than ten years (1) Fraud of public and private property, the crime amount reaches the starting point of "huge amount" seven Thousands of dollars. The statutory sentencing starting point and benchmark penalty for fixed-term imprisonment of more than ten years is: (1) Fraud of public or private property, and the crime amount reaches the threshold of "especially huge amount" of 500,000 yuan.

According to the above provisions, the amount of your brother's fraud should be considered huge, and the sentence should be between three and ten years in prison. "Fang Yi explained.

"Then why was my brother sentenced to eleven years? Isn't this against the law?" Geng Zhifan was a little confused. Since there are clear legal provisions, why did the court still sentence him like this?

"This is because the criminal law provisions of 1979 are different from the current criminal law, and your brother's case occurred before the law was revised in 1979, but your brother was tried after the law was revised.

According to Article 152 of the 1979 Criminal Law, anyone who defrauds public or private property in a huge amount shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years. If the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment. Property may also be confiscated.

According to the provisions of Article 1 of the "Interpretations of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Fraud Cases" (1996), and in accordance with the provisions of Articles 151 and 152 of the Criminal Law, If the amount of public or private property defrauded is relatively large, it shall constitute the crime of fraud. If an individual defrauds public or private property of more than 2,000 yuan, it is classified as "large amount"; if an individual defrauds public or private property of more than 30,000 yuan, it is classified as "huge amount". If an individual defrauds public or private property of more than 200,000 yuan, the amount of fraud is particularly huge.

Your brother defrauded more than 300,000 yuan, so the court found that the amount of fraud was particularly huge.

I think the court of first instance made mistakes when applying the criminal law, which is why it sentenced your brother to eleven years for the extremely huge crime. "

"Oh, that's what happened. I went to observe the trial.

Although my brother does not think his behavior is a crime, he does not deny receiving money. So I understand what you mean. My brother has definitely committed a crime. If his sentence can be reduced, I will be very grateful. Geng Zhifan replied with a firm look.

"Mr. Geng, to be honest, we did not handle the first instance of your brother's case, so the workload of the second instance will be huge. In addition, you asked lawyer Fang to handle your brother's case, so the legal fees will be relatively high." Xie Youhe saw The other party had the intention of entrusting it, so he interjected.

"Well, I understand this. My brother's case was handled by my company's legal advisor, and he also told me some things in this regard.

If this case is entrusted to a lawyer, how much will the lawyer's fees cost? "After Geng Zhifan finished speaking, he looked at Fang Yi.

The legal advisor of Geng Zhifan's company is also an experienced lawyer. He mentioned to him the high cost of changing lawyers before so that Geng Zhifan could continue to entrust him with the second trial.

However, Geng Zhifan felt that he did not handle the case well in the first trial. He blindly accommodated his brother and followed his ideas, and failed to play the role that a lawyer should have. In the end, his brother was sentenced to eleven years.

In fact, Geng Zhifan just didn't want to think about why the lawyer defended like this. There was a reason why the lawyer could not clap his hands, and there was also a reason why his brother did not plead guilty.