Lawyer's character

“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.

Next, the prosecutor will speak first. "The presiding judge looked at the prosecutor's box.

"Presiding Judge, Judge: The prosecutor believes that the defendant Jin Dachun defrauded the victim of money on the pretext of exorcising ghosts and illegally possessing other people's property. The facts are clear and the evidence is reliable and sufficient. The defendant has committed the crime of fraud. And the amount of fraud is huge. , it is recommended that the defendant be sentenced to eight years in prison. Over." The female prosecutor spoke confidently.

…

"The defendant's defender expressed his defense opinion." The presiding judge followed the procedure step by step.

"Presiding Judge, Judge: The defender does not object to the criminal facts alleged by the prosecutor, but he does object to the characterization of this case. The behavior of the defendant in this case does not constitute the crime of fraud, but should constitute the crime of theft, for the following reasons:

1. In this case, the defendant used both deception (expelling ghosts and deceiving people) and stealing (subcontracting) to misappropriate other people's property. The key to whether the nature of the defendant's behavior in this case is theft or fraud depends on the behavior. When people obtain property, the decisive method is stealing or deceiving.

The defender believes that in the crime of fraud, the disciplinary action of the deceived must be based on a misunderstanding, and the misunderstanding is due to the deceptive behavior of the perpetrator.

In general fraud cases, the victim’s awareness of property disposal has three characteristics:

1. The victim had the intention to dispose of specific property based on this misunderstanding.

2. The victim disposed of specific property “voluntarily and voluntarily” under the guidance of wrong understanding.

3. The victim clearly knows that disposing of specific property means transferring control of the property.

The act of disposal means that the property is transferred to the defendant or a third party for possession, that is, the actor or the third party actually controls the property, and does not require the deceived person to dispose of the property ownership to the defendant.

In the theft case, the victim had neither the consciousness nor the act of disposing of the property.

In this case, the purpose of the victim Niu Tianyu and others temporarily delivering the property was to allow the defendant to use the property to ask gods to "cast spells to drive away ghosts." Although formally the property had been delivered to the defendant for actual possession and was not in the hands of the victim, it was still in the victim's home. Within legal control.

Of course, the victim has actual control over the property in his home. Even if the victim hands the property to the defendant, according to the general concept of society, the victim still dominates and controls the property. That is, the victim temporarily delivers the property without transferring control of the property, let alone transfers the property control. The ownership of the property is transferred, so this delivery cannot be regarded as the intention and act of disposing of the property.

In this case, although the property was temporarily held in the hands of the defendant, the victim subjectively had no intention of letting the defendant obtain control of the property. Objectively, the defendant did not obtain actual control of the property. The victim only let the defendant obtain control of the property. He used the property to ask God to "cast spells to drive away ghosts" and did not agree with the defendant to take away the property. Therefore, although the victim was deceived, he did not have any intention or behavior to transfer the property to the defendant's control and control.

The reason why the defendant obtained the control and control of the property was entirely due to the subsequent secret theft through subcontracting.

The prosecutor accused the defendant of committing the crime of fraud, that is to say, the defendant committed fraud when he received the property. Even if the defendant returned the property to the victim afterwards, it was an act of return after the fraud was completed, which is inconsistent with the facts of this case. , and it is also inconsistent with legal principles.

2. The defendant's illegal acquisition of property was achieved through secret theft through subcontracting.

The defendant used "casting spells to drive away ghosts" to induce the victim to hand over the property to the defendant as a prop, which was fraudulent. However, the defendant did not directly obtain the property by relying on this fraud, but it only created conditions for the subsequent secret theft.

During this process, the defendant only held the property temporarily. When the defendant "cast spells to drive away ghosts," the victim still did not lose possession of the property and could ask the defendant to stop casting spells and return the property at any time.

Therefore, obtaining temporary possession of property through fraud is not the defendant's purpose behavior, but only an auxiliary means behavior to achieve the purpose of possessing property.

In addition, according to the evidence in the case, the defendant's "subcontracting" behavior is a secret theft, and its secrecy is reflected in:

1. When transferring the contract, the defendant drove the victim away from the scene of the magic practice on the grounds of avoiding disaster. The defendant subjectively did not want the victim to know.

2. The method of subcontracting is not known to the victim

3. After the transfer, the victim did not know that the property was actually under the control of the defendant.

In summary, the defendant implemented the secret method of "subcontracting" to transfer the property in this case from the victim to the defendant. The defendant finally obtained actual control of the property through subcontracting. Therefore, the defendant's behavior was consistent with theft. Behavioral characteristics of criminal secret theft. The defender believed that the defendant’s behavior constituted the crime of theft

In view of the fact that the defendant truthfully confessed the crime and showed remorse after being brought to justice, the defender suggested that the court give the defendant a lighter punishment and sentence him to a suspended sentence. complete. "Meng Guangda spoke.

…

After more than two hours of trial, the collegial panel finally pronounced the verdict in court.

The county court held that the defendant Jin Dachun used secret means to steal other people's property for the purpose of illegal possession. The amount was huge, and his behavior constituted the crime of theft.

During the crime process, Jin Dachun first used fictitious facts to deceive others into taking out property, and then took the opportunity to steal the property through subcontracting. The deception was connected with theft, but the main way he illegally obtained property was to steal in secret and deceive others. His behavior does not directly obtain the property he wants to illegally possess, but only creates conditions for theft, so his behavior should not be considered a crime of fraud.

The fact that the public prosecution agency accused Jin Dachun of illegally possessing other people's property was clear and the evidence was reliable and sufficient. However, the charge of fraud was inappropriate and was changed.

If the defendant Jin Dachun truthfully confesses the criminal facts after returning to the case, he may be given a lighter punishment as appropriate. According to the provisions of Article 264, Article 25, Paragraph 1, Article 52, and Article 53 of the Criminal Law of the People's Republic of China, the defendant Jin Dachun committed the crime of theft and was sentenced to three years in prison. year, and a fine of RMB 20,000.

Zhao Huilan kept wiping tears in the auditorium. She was sentenced to three years in prison. After deducting the time in previous detention, she would have to spend more than two years in jail.

Four updates today, and one more chapter, currently being typed, and will be updated at 6pm.