Lawyer's character

At two o'clock in the afternoon the next day, Fang Yi and Zhou Ying sat in the conference room of the Procuratorate on time. The attitude of the Procuratorate was very important. If the two parties communicated well, there would be less resistance during the trial, and Kong Xusheng's case would have a chance to change the sentence.

A male prosecutor named Wang in his thirties wearing glasses glanced at the lawyer's opinion submitted by Fang Yi, and looked up at Fang Yi and Zhou Ying: "You have no objection to the characterization of Kong Xusheng's corruption case, but you have objections to the sentencing. , thinking that he has committed meritorious service, he can be given a lighter or reduced punishment on the basis of the existing sentence, is this what he means?"

"Yes, we think there is no problem with the accusations made by the procuratorate in the first instance, but new circumstances occurred that were not taken into account in the first instance. Of course, this was an emergency situation, and the public security agency at that time let Kong Xusheng go after finishing the transcript. The police The results of the agency's processing will only come out two days later," Fang Yi said.

His meaning is very clear. We have no objection to the charges charged by the Procuratorate in the first instance. We agree with the Procuratorate's opinion regarding the crime of corruption. However, new circumstances have arisen. Kong Xusheng committed meritorious service. We hope that the Procuratorate will recommend sentencing during the second instance. , consider the new situation.

"Well, I agree with you in principle. It is true that Kong Xusheng stopped others from stealing, but the caught thief did not reach the age of criminal responsibility and was not held criminally responsible. Does Kong Xusheng's stopping behavior constitute meritorious service... "As Prosecutor Wang said this, the door of the conference room opened and a female prosecutor in her twenties or eighties walked in.

"Lawyer Fang, Lawyer Zhou, this is my colleague, Prosecutor Liu. We are responsible for this case together." Prosecutor Wang introduced.

"Hello, Lawyer Fang, Lawyer Zhou." Prosecutor Liu took the lawyer's opinion handed over by his colleague, glanced at it and said: "Lawyer Fang, that's what I think. Kong Xusheng's behavior is courageous and worthy of promotion.

However, the perpetrator of the theft did not reach the age of criminal responsibility, and the public security organs did not handle the case as a criminal case. Since the behavior of the perpetrator of the theft did not constitute a crime, Kong Xusheng's behavior did not constitute "preventing other people's criminal activities" and could not be regarded as meritorious service. Of course this is just my preliminary opinion. "

"Lawyer Fang, please tell me what you think." Prosecutor Wang obviously had doubts about whether Kong Xusheng's behavior constituted meritorious service, but he was not as determined as Prosecutor Liu.

Fang Yi's reputation was there, and he admired Fang Yi's professional abilities very much, so he wanted to hear what Fang Yi had to say.

"Inspector Wang and Inspector Liu, I think Kong Xusheng's behavior constitutes meritorious service. The reason is:

Paragraph 1 of Article 68 of the "Criminal Law" stipulates that if a criminal exposes another person's criminal behavior and it is verified to be true, or provides important clues that enable the detection of other cases, etc., he may be given a lighter or reduced punishment.

Article 5 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws on Surrender and Meritorious Service" promulgated in 1998 stipulates that preventing others from criminal activities shall be deemed as meritorious service..." Fang Yi said

"Well, we are aware of the legal provisions you mentioned, but the public security organs have not treated the theft as a crime. Kong Xusheng's behavior does not comply with the above provisions." Inspector Liu took over the conversation.

"Prosecutor Liu, I hold the opposite view to you. The 'criminal activities of others' in the above-mentioned laws and judicial interpretations do not necessarily constitute a crime.

Therefore, the handling results of judicial organs should not be used as the standard. As long as the behavior of others is socially harmful and has the external manifestation of certain objective elements of a crime, then preventing the behavior can be regarded as "preventing other people's criminal activities." "Fang Yi said.

"Lawyer Fang, please be more specific." Prosecutor Wang felt that what Fang Yi said seemed to make sense.

“1. According to the above-mentioned laws and judicial interpretations, ‘preventing other people’s criminal activities’ meritorious service does not require that ‘other people’s criminal activities’ actually constitute a crime.

First of all, according to the explanation of "Modern Chinese Dictionary", activities refer to actions taken to achieve a certain purpose. The 'criminal activity' in the activity of 'preventing others from committing crimes' is used as a noun, and its literal meaning should refer to actions taken to achieve criminal purposes, and should not be equated with committing a crime.

Secondly, Article 5 of the above-mentioned judicial interpretation clearly states that meritorious service for ‘preventing other people’s criminal activities’ is ‘other people’s criminal activities’ rather than ‘other people’s crimes’.

There is no clear definition of 'criminal activity' in the above explanation, but this expression has reflected the legislative orientation, that is, the 'criminal activity' here does not equal the actual 'crime', which is inconsistent with the meaning of 'activity' itself. It's also consistent.

Finally, the "Opinions of the Supreme People's Court on Handling Several Specific Issues on Surrender and Meritorious Service" explains in the form of enumeration how to determine that others "commit a crime" when reporting, exposing or assisting in arresting.

Paragraph 5 of Article 6 of the Opinion stipulates, 'If the defendant reports, exposes or assists in the arrest of a person whose behavior constitutes a crime, but does not pursue criminal responsibility, does not prosecute, or terminates the trial due to statutory reasons, it will not affect the defendant's meritorious performance. Identified...'

The term "constitute a crime" here should be understood from a formal perspective, which means that the behavior is socially harmful and meets the objective requirements for constituting a certain crime.

As for the conduct in which criminal liability is not pursued because the subject does not have the capacity for criminal responsibility, or the case is not filed, the case is withdrawn, the prosecution is not prosecuted, the trial is terminated, or the case is declared innocent because the circumstances are obviously minor, the statute of limitations for prosecution has expired, he has been pardoned, the defendant is dead, etc. It does not affect the determination of meritorious service.

Although Article 6 of the opinion only stipulates meritorious service for reporting, exposing or assisting in arrest, we believe that in judicial practice, we can refer to its provisions to determine meritorious service for "preventing other people's criminal activities". "Fang Yi explained.

"Well, Lawyer Fang, in Article 6 of the "Opinions of the Supreme People's Court on Handling Several Specific Issues on Surrender and Meritorious Service" that you just mentioned, in reporting, exposing criminal meritorious service, and assisting in arresting criminal meritorious service, the behavior of the person being reported and the person arrested are all the same. It has been implemented, and it is an after-the-fact evaluation to think that his behavior constitutes a crime in form, and preventing others from committing crimes more often happens when others are committing criminal activities, so I think it cannot be completely applied." Prosecutor Wang retorted.

"Well, you are right. It cannot be applied completely. But I think it can be applied as a reference. Kong Xusheng's behavior meets the meritorious conditions of 'preventing other people's criminal activities'. This is how I understand it:

1. The ‘criminal activity’ in ‘preventing other people’s criminal activities’ refers to behaviors that are harmful to society and have certain external manifestations that constitute objective elements of a crime...” Fang Yi said while observing the prosecutor opposite.

There are three chapters today, two chapters will be posted first, and the last chapter will be typed by hand and will be posted later.