Lawyer's character

"Master and I have already gone to the detention center to see Ge Xinggen. What he said about the incident is generally consistent with what is recorded in the case file, and he confessed to the facts of the case.

However, the victim's statement contained in the case file is different from the defendant's confession. The victim claimed that he was violently robbed by Ge Xinggen and others.

Moreover, the victim, through her attorney, repeatedly requested the judicial authorities to severely punish the defendant for robbery. "Even though Cheng Du is chubby, he is articulate, logical, and efficient. He is not annoying at all. On the contrary, it makes people feel interesting after being in contact with him for a long time.

"The public security agency opened a case for robbery, and then the procuratorate approved the arrest for fraud. Finally, the procuratorate filed a public prosecution for theft, but the victim claimed that he was robbed. This case is a bit interesting." Zhou Ying said thoughtfully.

"Lawyer Du, what do you think? About the charges." Yu Wendong asked.

"We believe that the crime of theft is correct. The defendant's behavior constitutes the crime of theft." Du Yong said.

"What's the reason?" Yun Qiao blinked and asked.

"Let's analyze each crime one by one. This is how we understand it. Please listen and give us your opinions:

First, the behavior of the defendant Ge Xinggen in this case cannot be considered as robbery.

The crime of robbery refers to the act of forcibly taking public or private property by using violence, coercion or other methods on the spot. The only direct evidence in this case is the confession of defendant Ge Xinggen and the statement of victim Hu Haidan. The evidence is one-to-one. There is no other direct evidence to prove the statements of both parties.

In this case, the defendant Ge Xinggen did not confess that he used violence, threats and other means during the crime. The evidence in the case cannot prove that the defendants Ge Xinggen and Lanshan Taihe Wu Wanzhong used violence, coercion and other means during the crime. Therefore, we There are reasonable doubts about the statement of the victim Hu Haidan about being violently robbed of property by Ge Xinggen and others, so this case cannot be considered a robbery crime.

Second, the behavior of the defendant Ge Xinggen in this case should not be considered a crime of fraud, but should be considered a crime of theft.

The key to distinguishing the crime of fraud from the crime of theft lies in whether the victim surrendered the property based on a misunderstanding. The crime of larceny mainly involves secretly stealing property without the victim's knowledge.

Although the crime of fraud and theft are both property infringement crimes with the purpose of illegally possessing other people's property, the crime of fraud is the acquisition of property based on the victim's flawed will, requiring the victim to fall into a wrong understanding and dispose of the property on his own.

In cases of parabolic fraud, the general method of defrauding money is: after the victim reveals the bank card password due to being deceived, the victim usually hands over the property to the defendant for verification by a so-called third party, resulting in the property being defrauded.

Since the victim mistakenly believed that the defendant was really going to a third party for verification and to hand over the property, which conforms to the characteristics of property disposal due to misunderstanding in the crime of fraud, the defendant's behavior in this case constituted the crime of fraud.

However, the situation in this case is different from the past. Although the victim voluntarily revealed his bank card password, the defendant and co-perpetrators obtained the victim's bank card not because the victim voluntarily handed it over because of a misunderstanding, but because the defendant Ge Xinggen obtained the victim's bank card under the cover of his accomplices. It was obtained secretly while the victim was not paying attention. Therefore, the defendant's behavior in this case cannot be determined as a crime of fraud, but should be determined as a crime of theft. "Du Yong explained.

"Just now Cheng Du said that the defendant also stole a credit card. I remember that Article 196 of the Criminal Law stipulates that anyone who fraudulently uses another person's credit card constitutes the crime of credit card fraud.

Will the defendant Ge Xinggen in this case be sentenced to multiple crimes by the court? Yun Qiao asked.

"No, we have had this concern before, but according to the provisions of Article 196, paragraph 3, of the Criminal Law, anyone who steals a credit card and uses it will be convicted and punished in accordance with the provisions of Article 264 of this law.

In other words, the defendant's behavior of stealing and using credit cards in this case should be convicted and punished as the crime of theft, and cannot be separately classified as the crime of credit card fraud. Therefore, multiple crimes cannot be punished at the same time. "Du Yong explained.

Although criminal lawyers are very familiar with the Criminal Law, not every legal provision can be memorized by heart. They only know the legal provisions that they commonly use, and other legal provisions need to be consulted when handling cases.

To be cautious, Du Yong had previously asked Cheng Du to check the laws on related crimes, so when Yun Qiao brought up credit card fraud, he could answer fluently.

"Lawyer Du, three people including Ge Xinggen committed the crime in this case, and two of them absconded. Just now you said that the only evidence that directly proves the defendant Ge Xinggen committed the crime of theft is the defendant's confession, and the only evidence that proves the defendant Ge Xinggen committed the crime of robbery is the victim's. statement, how did you determine that the defendant must have committed the crime of theft?

In other words, what circumstantial evidence did you use to determine that the defendant stole the victim's property in secret rather than using violence? "Cao Yongzheng listened more carefully, and after thinking about it, some aspects were not right.

"This is more complicated to say. Since the two co-perpetrators other than the defendant Ge Xinggen are at large and there are no witnesses, the only direct evidence is the confession of the defendant Ge Xinggen and the statement of the victim Hu Haidan, and the facts proved by these two pieces of evidence are Quite different, and actually that's not necessarily a bad thing.

I think there is insufficient evidence on both sides, and this is a doubtful case. However, the burden of proving that the defendant committed a certain crime lies with the public prosecution, not the defendant. The doubtfulness of the case is in favor of the defendant, so I make this conclusion. "Du Yong said with a smile.

"'Doubt is in favor of the defendant' is an important judicial principle. The application of this principle should be based on the premise that the facts cannot be ascertained. If the facts can be ascertained through careful review and judgment of the evidence and proper evidence re-examination, then the This principle should be applied." Cao Yongzheng said and looked at Du Yong.

His meaning is very clear. Is it true that the existing evidence cannot clarify the facts of the case?

Du Yong smiled.

"Lawyer Du, I'm not doubting your professional ability, I'm just curious. Please don't get me wrong." Cao Yongzheng was a little embarrassed.

"It doesn't matter, I can understand. If I encounter a case that interests me, I will break the casserole and get to the bottom of it. I will show you the main evidence of the case that I have compiled. You can read it while I talk." As he said, Du Yongzhi Chengdu handed the compiled case evidence and cross-examination opinions to Cao Yongzheng.

“According to defendant Ge Xinggen’s confession, he obtained property through a combination of fraud and theft, and according to Hu Haidan’s statement, Ge Xinggen robbed his property.

Other evidence (such as the bank surveillance video of Ge Xinggen withdrawing money) cannot directly prove the nature of the crime, but can only indirectly prove the occurrence of the crime of infringement of property.

Therefore, accurately identifying the facts of the crime is the most critical prerequisite for the determination of this case..." Du Yong said this, feeling a little dry in the mouth and swallowed.

Two updates today.