Lawyer's character

"The prosecutor can respond to the defense opinions of the defender." The presiding judge glanced at the prosecutor's box and said step by step.

“Okay, in response to the defender’s defense, we express our views as follows:

We believe that the behavior of the appellant Niu Shengming constitutes the crime of extortion. The main reasons are as follows:

1. Niu Shengming reported to the relevant departments that the investment and development company's projects were illegal and illegal. His behavior was to obtain property by means of threats and coercion, and it was a forced extortion of property. Meet the objective requirements for the crime of extortion.

2. Niu Shengming had already signed an agreement and received compensation for the demolition of his house and tomb. However, he proposed huge fees to the investment and development company, which was not within the reasonable scope. Instead, he intended to illegally occupy the investment and development company's huge property. It complies with the subjective element of "illegal possession of other people's property" in the crime of extortion.

To sum up, we believe that the appellant’s behavior complies with the subjective and objective elements of the crime of extortion and constitutes the crime of extortion. complete. "The female prosecutor's face was as frosty as ice.

"The defender can respond to the prosecutor's opinions." The presiding judge looked at Fang Yi.

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

The defender believes that Niu Shengming’s behavior does not constitute the crime of extortion, either subjectively or objectively. The specific reasons are as follows:

1. Niu Shengming’s behavior does not meet the subjective element of “illegal possession for the purpose” in the crime of extortion.

The crime of extortion refers to the act of forcibly extorting a relatively large amount of public or private property with threats or coercion for the purpose of illegal possession.

The defender believes that under normal circumstances, illegal appropriation of property that is not one's own is illegal possession. But in fact, property relations in reality are very complex and cannot be generalized. Only if the perpetrator knows that the property does not belong to him and intentionally takes the property as his own in a manner prohibited by the Criminal Law, can the perpetrator be deemed to have the purpose of illegal possession.

In this case, Niu Shengming is a demolished household, and it is difficult to determine from the evidence in the case that his claim for compensation from the developer was intentional illegal possession. The reasons are as follows:

First, Niu Shengming has a dispute over the demolition compensation. Although the Niu family has received a certain amount of demolition compensation, it does not rule out the possibility of continuing to demand compensation.

According to the provisions of Article 13 of the "Urban Demolition Management Regulations" of the State Council, the demolishers and the demolished persons shall, in accordance with the provisions of the Regulations, agree on the compensation method and amount, resettlement housing area and resettlement location, relocation period, relocation transition method and Transition period and other matters, enter into a demolition compensation and resettlement agreement.

In this case, Niu Shengming’s mother signed an agreement on house demolition with the demolition company. The validity of this agreement is a key document in this case.

The ownership and use rights of the houses and graves involved in the case have been jointly owned by the entire Niu family since the death of Niu Shengming's father. Strictly speaking, the agreement signed by Niu Shengming's mother and the demolisher must be approved, including the appeal. Renniu Shengming and other family members agreed. Otherwise, although the agreement is established, it does not take effect.

In the absence of ratification by Niu Shengming and other Niu family members, the validity of the demolition agreement in this case is pending for the following reasons:

1. In the evidence in the case, there is no evidence to prove that Niu Shengming’s mother signed the agreement with the relevant departments on behalf of the whole family;

2. The ownership and use rights of the Niu family’s houses and graves are shared by the whole family, and Niu Shengming’s mother cannot exercise the right to dispose of the property shares enjoyed by other people in the family alone;

3. According to Article 51 of the Contract Law, if a person without the right to dispose disposes of another person's property and the right holder ratifies it or the person without the right to dispose obtains the right to dispose of the property after entering into a contract, the contract shall be valid.

In this case, the demolition office did not urge Niu Shengming to ratify the validity of the demolition agreement, nor did Niu Shengming and his wife ratify it. Although Niu Shengming did not raise objections to the relevant departments regarding the standard of demolition compensation, he always disagreed with the demolition contract signed by his mother, and later refused There has been no act of ratification, so it cannot be concluded that Niu Shengming and his wife have ratified the validity of the contract on the basis that Niu Shengming received housing compensation from his mother.

On the contrary, Niu Shengming expressed dissatisfaction with his family for not informing him to be present when moving the tomb. Niu Shengming also had objections to the demolition work, so he had the idea to ask the demolition office and other units for compensation for losses related to the demolition and tomb relocation.

Second, Niu Shengming has the right to request the demolisher to re-claim the demolition compensation in accordance with the law.

It is not prohibited by law for Niu Shengming to re-claim for demolition compensation from relevant departments.

According to Article 16 of the "Urban House Demolition Management Regulations", if the demolisher and the person being demolished or the demolisher, the person being demolished and the lessee cannot reach a demolition compensation and resettlement agreement, the house demolition management department shall make a ruling upon the application of the parties.

The house demolition management department belongs to the people being demolished and shall be adjudicated by the people's government at the same level. The ruling shall be made within 30 days from the date of receipt of the application. If the party concerned is dissatisfied with the award, he may file a lawsuit with the People's Court within 3 months from the date of delivery of the award.

The "Reply of the Supreme People's Court on the Acceptance of House Demolition, Compensation, Resettlement and Other Cases" also stipulates that if a dispute arises between the demolisher and the person being demolished over issues such as housing compensation and resettlement, or after the two parties reach an agreement, one or both parties renege. , if a civil lawsuit is filed with the People's Court in accordance with the law only on issues such as housing compensation and resettlement without a ruling by the administrative agency, the People's Court shall accept it as a civil case.

The "Regulations on Causes of Action for Civil Cases" formulated by the Supreme People's Court also identifies the cause of action for such disputes as disputes over housing demolition and resettlement compensation contracts.

To sum up, Niu Shengming can apply for re-claim for demolition compensation through whatever channels. Whether and how much demolition compensation can be re-obtained should be decided by Niu Shengming and relevant departments in accordance with relevant laws. Negotiate with the unit.

It can be seen from this that Niu Shengming's new claim for demolition compensation is a new claim for demolition compensation by the demolished party, which is within the scope of the law.

Niu Shengming and others have re-claimed for demolition compensation. Although the amount is huge, it is not without any factual basis. In other words, the disputed demolition compensation does not necessarily belong to Niu Shengming, but is in a state of uncertainty.

Therefore, Niu Shengming's request for demolition compensation is actually a way of exercising civil rights and does not constitute "illegal possession for the purpose". "

After Fang Yi finished speaking the first point, he swallowed, cleared his throat, and glanced at the prosecutor opposite. The other person had a serious expression and frowned from time to time, probably thinking about the content of Fang Yi's speech.

There are two more updates at 6pm!