On December 2, 2023, the 7th Criminal Defense Jingwei Forum was held in the lecture hall on the 20th floor of the Shaw Management Science Building of Nanjing University Law School. The forum was hosted by the Law School of Nanjing University, undertaken by the Criminal Defense Research Center of the Institute of Crime Prevention and Control of Nanjing University, and co-organized by the Criminal Procedure Legal Professional Committee of Nanjing Lawyers Association and Jiangsu Ropes & Gray Law Firm. The theme of this year's forum was "Challenges and Opportunities for Lawyers' Defense in the New Situation", and more than 100 scholars, lawyers and students participated in the forum, both online and offline. Lawyer Lan Tianbin, senior partner of Jiangsu Fade Dongheng Law Firm, participated in the forum and exchanged ** "Defense Dilemmas and Breakthroughs in Plea Cases", the following is the speech:
Hello everyone!I'm Lan Tianbin, a lawyer. Regarding plea cases, there are some personal observations, which are not necessarily comprehensive.
There are three defense dilemmas in plea cases:
FirstIn terms of procedures, sentencing negotiations in some plea cases are insufficient and inadequate, and some procurators unilaterally notify lawyers to witness the parties signing plea affidavit, without in-depth communication with lawyers to negotiate sentencing. Sometimes you want to negotiate in depth, but some prosecutors won't budge.
SecondIn substance, some plea cases** have a situation where "there is no leniency for admitting guilt and accepting punishment, and the punishment is increased if you do not admit guilt and accept punishment". This deviates from the original intent of the plea leniency system, which should have been lenient for those who admit guilt and accept punishment, and normal sentencing for those who do not admit guilt and accept punishment. What is even more serious is that in some places, in some cases where the facts are unclear and the evidence is insufficient, there should have been a decision not to prosecute if there were doubts, but after admitting guilt and accepting punishment, a suspended sentence was recommended and digested, or a real sentence was directly recommended.
ThirdSome procurators need to strengthen some basic work, such as not doing a good job of simultaneous audio and video recording of plea cases, which is quite arbitrary.
In this regard, we can break through from the following aspects:
FirstDefense lawyers should be more truthful in plea procedures and pay attention to standardization. If we pay more attention to it, the procuratorate and the courts will pay more attention to it.
SecondUnder normal circumstances, we want to respect the plea affidavit, but if there are major problems in the case, such as major problems in facts and evidence, or major problems in the application of law, the lawyer can make an independent defense with reasonable grounds. Laws, regulations, and judicial policies do not prohibit lawyers from making independent defenses in plea cases. Whether or not an independent defense can be made in plea cases was a matter of great controversy a few years ago, but now there is a growing consensus that lawyers' independent defense is valuable and meaningful. What we are most afraid of is that the client pleads guilty and accepts punishment, the lawyer makes a defense of the crime, and finally the court finds not guilty. If that's the case, it's a shame for lawyers. I usually consult with the client, and the client says in court that I have pleaded guilty and accepted punishment, and as for the lawyer, he is a professional, and if the judge thinks it is reasonable, he will accept it, and if he thinks it is unreasonable, he will not accept it.
Lawyers, procurators, and judges must examine facts and evidence in a down-to-earth manner, and the examination of facts and evidence must not be reduced to a mere formality just because it is a plea case.
ThirdIn some plea cases, a misdemeanor defense can be made through the method of saving the country, so as to promote a lighter or commuted punishment. For example, we have handled a case of pension fraud, the party pleaded guilty and accepted punishment, and after our research, we believe that the company has the qualification to sell health care products, the seized health care products have not been professionally appraised, whether they are health care products or ordinary food is doubtful, and the defendants also believe that what is sold is health care products, in other words, there is no subjective intent to commit fraud, but in the publicity and marketing, there is some exaggeration, we believe that it constitutes a relatively minor crime, the crime of false advertising. At that time, the procuratorate recommended a sentence of three years and 11 months, and after more than seven hours of defense, the court attached more importance to our opinions, and later through the means of returning the stolen goods, the final sentence was two years and six months, and the parties were also relatively satisfied.
FourthIn plea cases, defense methods should be flexibly used, and be good at discovering evidence and procedural issues, so as to negotiate sentencing with the procurator. If you find that there are relatively large flaws in the evidence, or there are relatively large flaws in the procedure, then you can negotiate the sentencing with the procuratorate, then there is more space. If the procuratorate relies on the defense of first-time offenders, occasional offenders, and subjective malice, it will be very difficult for the procuratorate to make concessions.
FifthIt is necessary to fully explore mitigating or mitigating circumstances such as voluntary surrender, accomplices, return of stolen goods, and criminal forgiveness. For example, we handled a case of illegal business operation. The party did not apply for a tobacco monopoly retail license, sold cigarettes without a license in the store, and was seized by the staff of the Tobacco Monopoly Bureau on the spot, and the staff believed that the amount involved was relatively large and called the police on the spot. The party was at the scene, and the police from the police station came to arrest him, and the party truthfully confessed. Does this count as voluntary surrender, does it count as voluntary surrender?At first, the prosecutor insisted that there was no voluntary surrender, and that the staff of the Tobacco Monopoly Bureau had already discovered the criminal act of illegal business operation, and there was no question of voluntary surrender.
After our research, we believe that, first, the occurrence of this case has a certain passivity, the parties did not want the case to happen at the beginning, but the parties' arrival in the case is active and voluntary, the parties know that the staff of the Tobacco Monopoly Bureau called the police, and are still waiting at the scene to be processed, voluntarily waiting at the scene, voluntarily handing themselves over to legal sanctions, and they are voluntarily surrendered. Second, there is no contradiction between the previous administrative procedures and voluntary surrender. In the past, the Tobacco Monopoly Bureau, as an administrative organ, came to investigate and deal with it, which was an administrative procedure. Later, the staff of the Tobacco Monopoly Bureau called the police, and at this time, the person concerned was not restricted in his personal freedom, had not been taken criminal coercive measures, and had the opportunity to escape but did not escape, but waited for the public security police to deal with it at the scene. There is a process of linking the administrative handling procedures with the criminal handling procedures, and this process does not affect the determination of voluntary surrender. Third, since there is a dispute between the two parties, in this case, it is appropriate to determine that it is voluntary surrender in accordance with the principle of favoring the criminal suspect when there is doubt. In addition, we conducted a similar case search. In the end, the procuratorate determined that he surrendered, which laid a good foundation for the court to announce a suspended sentence later.
Finally, I would like to share with you a starting point in plea cases.
Is it possible to reduce the punishment if you confess and return the stolen goods?Confession can be punished lightly, and return of stolen goods can be punished lightly. Generally speaking, it is believed that the punishment can be mitigated but it is unlikely that the punishment will be mitigated. However, in the case of financial misappropriation crimes, we believe that it is possible.
The basis is in **?We see that paragraph 3 of article 67 of the Criminal Law stipulates that although a criminal suspect does not have the circumstances of voluntary surrender provided for in the preceding two paragraphs, but truthfully confesses his crime, he may be given a lighter punishment;Where they truthfully confess their own crimes to avoid especially serious consequences, the punishment may be commuted.
So, how do you understand avoiding particularly serious consequences?
In the first case, "avoiding the occurrence of particularly serious consequences" means that particularly serious consequences are inevitable or very likely to occur, but the occurrence is avoided because of the criminal suspect's confession. For example, if there is a sum of tens of millions or hundreds of millions of yuan, it may be immediately transferred overseas, because the criminal suspect confesses and avoids the transfer, which is to avoid particularly serious consequences, and then the punishment can be reduced.
In the second circumstance, if a particularly serious consequence has already occurred, but the particularly serious consequence has been eliminated due to the criminal suspect's confession, it should also be evaluated equally. Only in this way can criminal suspects be encouraged to act actively, recover losses, eliminate consequences, and restore social relations, which is also a manifestation of the concept of restorative justice. For this reason, where criminal suspects truthfully confess their own crimes, thereby recovering especially huge economic losses, it should also be found to be "avoiding the occurrence of especially serious consequences". For example, in the case of fraud or theft, the party confesses and returns the stolen goods in full, eliminating the particularly serious consequences, which is equivalent to avoiding the occurrence of particularly serious consequences, and we believe that the punishment can be reduced. This is also the point of view in the book "Understanding and Application of the Provisions of the Criminal Law Amendment (VIII) and Supporting Judicial Interpretations".
Of course, this provision mainly applies to the defense of cases of misappropriation of property. If it is a duty crime, it is not applicable because it violates the integrity of the job.
As for the third paragraph of Article 67 of the Criminal Law, we very much hope that everyone can use it and communicate with prosecutors and judges, just like the justifiable defense clause back then, which was originally like a zombie clause and has been asleep, but later it was activated because of the outbreak of several major cases.
That's all for my sharing, I hope to have the opportunity to communicate with you more, thank you!
Lawyer Lan Tianbin:Senior partner of Jiangsu Fade Dongheng Law Firm, deputy director of the Criminal Business Research Association, expert of the Legislative Affairs Committee of the Standing Committee of the Jiangsu Provincial People's Congress for the filing and review of normative documents, secretary-general of the Criminal Procedure Legal Professional Committee of the Nanjing Lawyers Association, former political and legal reporter, graduated from Xiamen University, focusing on the research of legal risk prevention and control and criminal defense of company personnel and public employees, and many cases have obtained the results of non-prosecution or withdrawal of cases, termination of investigation, and change of suspended sentences.