Lawyer's character

Seeing Meng Guangda like this, Yu Wendong knew that he was going to start "teaching" again. He was really afraid that the judge would be upset by what he heard, so he interrupted him directly and asked for a concise and concise statement of his defense opinions.

It is said that Meng Guangda made this mistake when he first started practicing law and was reprimanded by the junior judge. Meng Guangda was very humiliated that time and the client had a strong opinion of him.

Since then, although Meng Guangda has conducted self-reflection and self-criticism, and his defense style has improved a lot and has become more down-to-earth, the literary spirit in his heart has always been there, but he has become more restrained.

Meng Guangda paused and continued to express his defense opinion: "In this case, the defendant Zhang Han's act of purchasing the stolen goods from Yang Zugang and others from the criminal Yan Yunzhe did not constitute an accomplice in theft, for the following reasons:

1. Before the theft was carried out, there was no collusion between the defendant Zhang Han, Yang Zugang and others.

Joint crime requires that the co-offenders must have a common criminal intention, that is, the co-offenders have a certain connection of intentions, recognize the social harm of their actions, and agree to participate in the joint crime.

The defender believes that this kind of communication must occur before the criminal act is committed (prior conspiracy).

In other words, before the criminal act is committed, the co-offenders have already communicated their intentions on the determination of criminal intent, the specific division of labor for the implementation of the criminal act, and the handling of criminal proceeds.

The Supreme People's Court once pointed out in the "Telephone Reply on How to Understand "Prior Conspiracy" in the Crime of Harboring and Shielding, It shall be Treated as a Joint Crime" (December 28, 1985): Prior conspiracy refers to harboring and shielding criminals. Anyone who plans or conspires with a criminal who is being harbored or sheltered before committing a crime, and agrees to harbor or shelter the criminal after committing the crime, shall be treated as a joint criminal. Anyone who only knows that the perpetrator is going to commit a crime and harbors and protects him afterwards, or who knows in advance that the perpetrator is going to commit a crime but fails to report the crime, and then harbors and protects the criminal after the crime occurs, should not be punished as a joint crime, but constitutes harboring alone. , the crime of harboring (the "Amendment to the Criminal Law of the People's Republic of China (6)" that took effect on June 29, 2006 revised this crime to: the crime of covering up and concealing criminal proceeds, and the crime of criminal proceeds).

The identification of prior conspiracy in the above reply is consistent with the provisions of the General Principles of Criminal Law on the subjective elements of joint crime. Therefore, the defender believes that the spirit of the above reply can also be used to identify "prior conspiracy" between criminals who sell stolen goods and criminals who steal.

That is to say, if the person who sells stolen goods plans or conspires with the perpetrator of the theft before the theft, and agrees to harbor, transfer, purchase, sell the stolen goods on his behalf or otherwise cover up or conceal the stolen goods after the theft, it is a joint crime. The act of helping belongs to different divisions of labor in a joint crime and should be punished as an accomplice in the crime of theft.

If there is evidence that the person who sells stolen goods and the perpetrator of the theft have formed a long-term, stable, and tacit cooperative relationship, after the stolen property is stolen, in accordance with the prior agreement or tacit understanding, the perpetrator of the theft harbors, transfers, acquires, sells the stolen goods on his behalf, or in other ways Any cover-up or concealment shall also be deemed as a prior conspiracy between the two parties and shall be punished as an accomplice.

In this case, Zhang Han had never had any direct or indirect prior contact with Yang Zugang and others regarding the acquisition of stolen goods before Yang Zugang and others committed the theft.

Yan Yunzhe contacted Zhang Han to purchase the stolen cables because he did not have enough funds to purchase all the stolen goods, so he contacted the defendant Zhang Han on a temporary basis. Yan Yunzhe's behavior was his personal behavior.

Yang Zugang and others did not know that Zhang Han purchased the stolen cables from Yan Yunzhe before committing the theft and during the process.

Therefore, Zhang Han and Yan Yunzhe's prior agreement to purchase stolen cables should not be regarded as a prior conspiracy between Zhang Han, Yang Zugang and other theft perpetrators.

In addition, the evidence in this case cannot prove that the defendant Zhang Han formed a long-term, stable and tacit cooperative relationship with Yang Zugang and others regarding the acquisition of stolen goods.

It can be seen from this that the defendant Zhang Han did not have any contact with Yang Zugang and others with the intention of jointly stealing before and during the theft. Therefore, Zhang Han did not meet the subjective requirements for establishing an accomplice in the joint theft.

2. Defendant Zhang Han’s behavior did not encourage or support Yang Zugang and others in committing theft.

The accomplice in a joint crime must provide assistance before or when the defendant commits the crime. This is the time limit requirement for establishing an accomplice. Generally speaking, accomplices can be divided into two types:

The first type is psychological help, which mainly refers to motivating and advising the offender for his behavior, and agreeing to help him escape afterwards, etc., so as to strengthen the defendant's determination to commit a crime or enhance the psychological security of the offender during the crime.

The second type is physical assistance, which mainly refers to providing criminal tools and creating criminal conditions for the defendant.

In this case, the defendant Yang Zugang and others were the perpetrators of the theft at the scene. The defendants Yan Yunzhe and Zhang Han did not go to the scene of the theft to start the theft, so Yan Yunzhe and Zhang Han were not the perpetrators of this case.

When defendant Yan Yunzhe contacted Zhang Han, Zhang Han had clearly learned that the stolen goods he was about to acquire were cables. Therefore, Zhang Han had already realized that someone was going to commit theft before purchasing the stolen goods.

It can be seen that before Zhang Han acquired the stolen goods, the criminal determination of Yang Zugang and others to steal had already been formed before that, and Zhang Han's behavior did not have any psychological help for this determination.

Yang Zugang and others did not know that Zhang Han was planning to purchase stolen goods before or during the theft. Zhang Han's behavior did not give Yang Zugang and others any psychological encouragement in the process of committing the theft.

It can be seen from the above that Zhang Han did not provide psychological assistance to Yang Zugang and other criminals in this case.

When Yang Zugang and others committed the theft, Zhang Han did not go to the scene of the theft, nor did he provide them with the tools to commit the crime or create conditions for the crime.

When Zhang Han brought cash to the transaction site to purchase stolen goods from Yan Yunzhe, the theft crime committed by Yang Zugang and others had already been completed (completed). Zhang Han's behavior of carrying cash to purchase stolen goods from Yan Yunzhe occurred after Yang Zugang and others succeeded in stealing and transferred the stolen goods, so this behavior was not an act of assisting Yang Zugang and others in their theft.

In view of this, Zhang Han did not provide physical assistance to Yang Zugang and others in their criminal behavior in this case.

To sum up, the defendant Zhang Han did not conspire with Yang Zugang and others in advance. During the theft process by Yang Zugang and others, Zhang Han subjectively did not have the criminal intention to help Yang Zugang and others commit the theft; objectively, he committed the theft against Yang Zugang and others. Behavior, neither psychological nor physical help was implemented. Zhang Han's act of purchasing stolen goods was not an act of assisting Yang Zugang and others in committing theft, but a simple act of selling the stolen goods afterwards. Therefore, his behavior was not an act of assisting in joint theft and did not constitute an accomplice in theft.

Although the defendant Zhang Han's behavior did not constitute the crime of theft, he knowingly purchased the stolen goods stolen by Yang Zugang and others. His behavior violated the provisions of Article 312 of the Criminal Law, and Zhang Han's behavior should be recognized constitutes the crime of concealing criminal proceeds.

In view of the fact that the defendant Zhang Han confessed truthfully after returning to the case and showed remorse, the defender recommended that the defendant Zhang Han be sentenced to a suspended sentence. complete. "Meng Guangda said with a dry mouth, and he didn't know whether the judge would accept it.

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