Lawyer's character

Wei Xuan had no choice but to call his relatives and friends to contact him about borrowing money. However, after making a round of calls, when he heard about borrowing money, his relatives and friends gave various reasons. To sum up, he said: no money.

Liu Xiaomin was dumbfounded. He didn't expect Wei Xuan's popularity to be so poor.

Wei Xuan was also stunned. In the past, he was very kind to his relatives and friends, and he didn't miss anyone when something happened. But when he mentioned borrowing money, his face changed. He really didn't know until he tried, and he was shocked once he tried.

In the past few years, Wei Xuan has been working hard from morning to night on renovations. He looks very prosperous, but in fact, a lot of money has not been recovered and has become a triangular debt. From the money he received after deducting employee wages and materials, there is not much left, and there is not much money left. money. Relatives and friends all knew about his situation and were afraid that he would not be able to pay back the money, so they resisted the idea of ​​borrowing money.

In desperation, Liu Xiaomin came up with the idea and asked Wei Xuan to draft and sign a loan agreement, which read: I will lend Liu Xiaomin RMB 1.5 million and guarantee that all the money will be paid within one month. On the day of signing, I will pay RMB 50,000 in advance. Yuan, 15% annual interest, repayable within two years.

Liu Xiaomin used his property as a mortgage, and the two parties agreed that Liu Xiaomin would help Wei Xuan collect debts without compensation.

After the agreement was signed, the two took a taxi back to the city. When Wei Xuan went to the People's Hospital for medical treatment, Liu Xiaomin ran away because he was afraid of being discovered by the police. When Wei Xuan saw Liu Xiaomin running away, he immediately borrowed a mobile phone and called the police.

Early the next morning, Liu Xiaomin was captured by the police and brought to justice.

More than two months later, the People's Procuratorate filed an indictment against the defendant Liu Xiaomin for committing the crime of forced transaction.

The district court held that the defendant Liu Xiaomin used violent means for the purpose of illegal possession and in the name of borrowing money to forcibly steal other people's money and caused minor injuries. His behavior violated other people's personal rights and property rights and constituted robbery. Crime should be punished according to law.

The defendant Liu Xiaomin used violence on the spot to force others to "borrow" money, and forced others to raise part of the money on the spot. This does not constitute forced trading behavior of buying and selling goods in market transactions, or forcing others to provide services or accept services. The prosecutor's office accused the defendant The characterization of Liu Xiaomin's crime of forced transaction is inappropriate and should be corrected.

Although the defendant Liu Xiaomin did not receive a huge amount of money, he caused minor injuries to the victim during the robbery, which constituted a completed crime. Accordingly, in accordance with the provisions of Articles 263, 52 and 53 of the Criminal Law, the verdict is that the defendant Liu Xiaomin is guilty of robbery and sentenced to six years in prison and fined RMB 10,000. Two thousand yuan.

After the verdict of the first instance was pronounced, Liu Xiaomin appealed on the grounds that he borrowed money from Wei Xuan without the purpose of illegal possession and his behavior constituted the crime of forced transaction.

Liu Xiaomin's sister Liu Xiaohua saw that her brother had been sentenced to six years, and was very dissatisfied with the previous lawyer, so she found Li Mingbo.

Li Mingbo's family lived in the same community as Liu Xiaohua's family. She wanted to ask Li Mingbo to defend his brother, but Li Mingbo went to the detention center to meet with Liu Xiaomin. After understanding the whole situation, he believed that the case was highly likely to be dismissed in the second instance, but Liu Xiaohua denied.

Later, she didn’t know who told her that Li Mingbo and Fang Yi knew each other and had a good relationship, and asked her to consult Fang Yi again.

When Fang Yi was practicing in the county, almost everyone in the county knew about him. Liu Xiaohua had naturally heard of Fang Yi. She thought that maybe Fang Yi had a way, so she went to grind on Li Mingbo. Li Mingbo really had no idea. The solution was to call Fang Yi, and after making an appointment, the two ran to Wanhua United Law Firm to consult Fang Yi.

Seeing Fang Yi put down the verdict, Liu Xiaohua looked at him: "Lawyer Fang, do you think my brother's case can be changed?"

"Your brother borrowed 1.5 million yuan from Wei Xuan and used his own property as collateral. Does your brother own any property?" Fang Yi looked at Liu Xiaohua.

"How can he have a real estate mortgage? For such an old man, if he had a house, he would have married a wife long ago. Why would he gamble all day long? No, he definitely does not have a real estate." Liu Xiaohua shook her head and replied.

"Lawyer Fang, during the first instance, the procuratorate believed that Liu Xiaomin went against the victim's wishes, forcibly wrote an IOU and helped the victim negotiate for debt without compensation. He used violent means to force others to trade, and the circumstances were serious. Liu Xiaomin's behavior constituted the crime of forced transaction. You said the court of second instance Is it possible to convict Liu Xiaomin of forced trading?" Lee Myung-bak asked.

This is also a question that Liu Xiaohua asked Li Mingbo before. Now he raised it face to face because he wanted Liu Xiaohua to hear what lawyer Fang explained and whether it was different from his own explanation.

"I don't think so. Conceptually, the defendant Liu Xiaomin did not have the purpose of trading at all. Objectively, what he carried out was not a transaction, but robbery in the name of borrowing money. Liu Xiaomin's behavior constituted the crime of robbery." Fang Yi After thinking for a while he replied.

"Why?" Liu Xiaohua asked.

"According to the provisions of Article 226 of the Criminal Law, the crime of forced transaction refers to the use of violence or threats to force the purchase and sale of goods or force others to provide or receive services, and the circumstances are serious. There are three main forms of expression:

First, forcing others to buy or sell goods, provide or receive services when they are unwilling to buy or sell goods, provide or receive services;

Second, forcing others to buy or sell goods, provide or receive services in an abnormal way;

Third, forcing others to buy or sell goods, provide or receive services at unfair prices.

The crime of forced transaction and the crime of robbery have certain overlap in terms of constitutive conditions. Both of these two crimes are objectively manifested in the use of violence and threats, and both violate the property and personal rights of the victim. So sometimes in judicial practice, it is not easy to distinguish between the two crimes..." Before Fang Yi finished speaking, Liu Xiaohua spoke.

"Lawyer Fang, what you said is too professional, and I don't understand it very well. I don't care whether it's different or not. Can you be more straightforward?" Liu Xiaohua asked with a confused look on her face.

“Let’s put it this way, in this case, the defendant Liu Xiaomin deceived the victim Wei Xuan into a small hotel, used violence on the spot, and forcibly borrowed 1.5 million yuan from the victim Wei Xuan, and forced Wei Xuan to raise part of the money on the spot.

Although Liu Xiaomin wrote an IOU and promised in writing to collect Wei Xuan's debt without compensation, it was of a certain transaction nature in form, but it did not meet the constituent elements of the crime of forced transaction and could not be considered a crime of forced transaction. Instead, it met the constituent elements of the crime of robbery, which constituted Robbery. I say this for three reasons:

First, borrowing does not fall into the category of ‘trading’ in the crime of forced transaction.

Forced trading must be predicated on the existence of ‘transaction’. The ‘transaction’ in the crime of forced transaction refers to the act of buying and selling goods, providing and receiving services, which is market behavior. Borrowing money is neither the sale or purchase of goods nor the provision or receipt of services, so it does not constitute a 'transaction' within the meaning of this crime. Without trading behavior, there is no forced trading.

Ms. Liu, do you agree with what I say? "After Fang Yi finished speaking, he looked at Liu Xiaohua. (End of Chapter)