On April 15, 2023, I was enjoying my weekend leisure at home when I suddenly received a call from an old lawyer friend. In the old friend, I was a little anxious: Old Tang, I am an entrepreneur friend Mr. Wang was just taken away by the Linguan City Public Security two days ago on suspicion of defrauding state-owned assets, and his family came to me today. But over the years, I have mainly focused on civil and commercial affairs, and I have rarely done criminal cases, and you just happened to focus on criminal cases and studied fraud crimes, so I still ask you to deal with this case of my friend.
I said, "I don't dare to disobey your orders."
That night, I immediately made an appointment with Mr. Wang's wife and Mr. Wang's son, Wang Dong, to meet on the second day to understand the basic situation.
On April 16, he met with Mr. Wang's family on time.
Mrs. Wang, I felt a little broken, and I sobbed without chatting a few words: Lawyer Tang, you must help, you are recommended by our family friend Li lawyer, and we are all Hunan villagers, and our family absolutely trusts you. In addition, in my husband's case, Lawyer Li is a lawyer himself, but he still recommends you to handle it, so we absolutely believe in your ability, and you must help us.
According to the family, the party Mr. Wang runs a number of enterprises in Lin**, and spans several industries, and his career is booming. On April 13, 2023, Mr. Wang was taken away by the Linguan Municipal Discipline Inspection and Public Security on suspicion of defrauding state-owned assets. As for the specific situation, the two family members do not know much about it.
I said, since you don't know much, then I'd better go to the detention center to meet first, and ask Mr. Wang for details.
Okay, that's it.
1 Meet Mr. Wang
On April 17, when I was preparing an outline for the meeting, I made an appointment with the Linguan City Detention Center for a meeting for the second day.
On April 18, he arrived at the Linguan City Detention Center on time.
Linguan City Detention Center, surrounded by mountains, fresh air, and the environment is really good.
After completing the interview formalities, I walked into the lawyer's interview room and waited for the person to be raised.
After a while, the disciplinarian brought someone over.
After Mr. Wang sat down, as is customary, I introduced myself first, and for the sake of a harmonious atmosphere, I accompanied him to chat for a while.
Next, I began to get straight to the point and asked Mr. Wang why the public security wanted to arrest him
Mr. Wang first introduced the background of the case to me
This case is a series of fraud cases involving state-owned assets, involving more than 20 enterprises, and the amount of fraud is as high as several billions, and it is said that 30 or 40 people have been arrested. The Central Commission for Discipline Inspection issued instructions to supervise and handle the case, and the Provincial Public Security Department designated the Linguan Public Security Department to take jurisdiction over the case, while the Linguan City Discipline Inspection Commission and the Public Security Criminal Police Detachment formed a joint case-handling team.
I said, then in what way did they defraud state assets?
Mr. Wang said that many years ago, the central enterprise ZGH acquired dozens of enterprises across the country, and in the process of acquisition, it may be that some executives of the acquirer and the acquired party deliberately colluded, cheated, arbitrarily raised prices, and then divided the income.
I said, "What exactly did you do in your case?"
Mr. Wang said that they arrested me mainly because I introduced and acquired a company of my friend in Lin** for the subsidiary of the central enterprise in Zhongshan. This subsidiary of the state-owned enterprise in Zhongshan has always been my customer. My friend's acquired company is my preferred businessman, and has provided several samples for our company. So, I know both sides.
I said, "Tell me about it."
Mr. Wang said that it was about 2014 that the business person in charge of the Zhongshan subsidiary of the central enterprise ZGH came to our company to negotiate business, and when chatting, the person in charge told me that their company was going to acquire a powerful enterprise in the YY industry in Guangdong.
Then one day, I asked my friend if his company would like to be acquiredMy friend said of course. I joked with my friend that "how can you thank me for the successful acquisition?"My friend said that as long as the acquisition is successful, I will give you 300,500,000. A few days later, I signed a formal intermediary agreement with him. The agreement stipulates that I will only be responsible for providing information about the acquirer, and I will not participate in other matters, and let them negotiate on their own. Because everyone is an insider, as long as the name of the company is mentioned, they all know each other.
After telling my friend that the acquirer was a subsidiary of the state-owned enterprise ZGH Zhongshan, I never participated in it, and the negotiation and negotiation during the acquisition process were carried out between the two of them.
Around July 10, 2014, the acquisition between the two sides was successful, but my friend refused to pay the agreed intermediary fee. He said that I didn't participate in the negotiation of the acquisition of the two companies, and I didn't participate in that, and I didn't do anything at all, and it wasn't worth that much money. I said that the agreement stipulates that I will only be responsible for providing information about the acquisition, and that other things have nothing to do with me.
Because of my friend's refusal to pay the intermediary fee, I entrusted a lawyer to file an intermediary contract dispute lawsuit with a court of the provisional ** court in April 2015. After I filed the lawsuit, my friend then filed a counterclaim. When the court presided over the mediation of the lawsuit and the counterclaim, my friend also repeatedly argued that I only provided information about the acquisition, and did not participate in anything else, did not do anything, and was not worth so much money. Of course, after mediation, I still agreed to give in, and we settled the case.
After listening to Mr. Wang's introduction to the case, I asked him, are you really only involved in so much?
Mr. Wang categorically gave me two words: guarantee!
Oh, and in that case, the engagement isn't deep.
In other words, before the start of the acquisition between the Zhongshan subsidiary of the state-owned enterprise ZGH and Mr. Wang's friend, Mr. Wang only provided the acquirer's acquisition intention to his friend, and after the acquisition officially began, Mr. Wang did not participate in it and did not carry out other acts.
So, will Mr. Wang's act of providing acquisition information constitute a crime?
I also began a theoretical analysis in my heart, if the acquisition introduced by Mr. Wang did commit a criminal act of fraud, Mr. Wang determined that the instigation, organizational behavior, and implementation of the joint crime can be ruled out, and the only thing that needs to be investigated is whether he has provided assistance to others in the crime of fraud, and whether it will constitute an aider.
Objectively speaking, Mr. Wang's act of providing acquisition information did play a certain role in matchmaking and helping others commit crimes.
It still feels a bit dangerous.
Therefore, it is necessary for me to continue to understand whether Mr. Wang knew that the acquirer and the acquiree were committing fraud and whether he had the subjective intention to help others commit fraud when providing acquisition information.
In view of this, I continued to ask Mr. Wang two questions:
First, did you participate in the fraudulent conspiracy between the acquirer and the acquiree beforehand?
Second, did you provide the acquisition information knowing that the acquirer and the acquiree were planning to commit fraud?
Fortunately, Mr. Wang gave me all the negative answers.
That's good. However, criminal lawyers understand that what a client says to a lawyer is sometimes different from what he confesses to the investigator. In some cases, the content of the parties' oral confessions to the investigators will be different from the contents recorded in the investigators' interrogation records.
So, after listening to Mr. Wang's introduction to the case, I asked Mr. Wang how many times the public security had interrogated him so farIn addition, is the transcript of the interrogation after each interrogation checked clearly before it is signed?
Mr. Wang said that before I came in to meet him, the investigators had interrogated him four times. The first three times were in the temporary case handling place of the case handling team, and the fourth time was after coming in and visiting the office.
He verified all three interrogation records before entering the detention center, and the contents of the records were all truthfully recorded in accordance with what he had stated. But after entering the detention center, because he was irritable and did not take blood pressure medicine, his head was always covered during the fourth interrogation. In addition, the police kept saying that he was not honest, did not cooperate, and did not confess anything valuable, so there was no way, and he answered in accordance with the requirements of the public security during this interrogation.
As soon as I heard this, I immediately became alert.
I said Mr. Wang, if you want to go out, you must state the case to the public security in a truth-seeking manner, and refuse to accept any form of deception. In addition, from now on, you will do the following for me: first, take blood pressure medication on time every day to ensure good health;Second, take regular breaks every day and keep a clear head;Third, during the public interrogation, you must answer truthfully, and you must not falsely pander;Fourth, you must read the interrogation transcript for me word by word after the police interrogation, and you must understand the meaning of each word thoroughly. If you do not understand the contents of the interrogation record, you must ask the public security for clarification. If what is recorded in the transcript does not match what you have stated, you must ask them to correct it. If they won't change it, you can change it yourself. Otherwise, you give me a refusal to sign.
I said, do you understand?
Mr. Wang replied heartily: No problem, lawyer Tang. Before you came to the meeting, I did give up a little bit on myself, but as soon as you came today, I felt like I had a backbone.
I continue to emphasize: Mr. Wang, I have listened to your statement today, and I feel that you may be innocent in this case. But the only one who can save you is yourself, not me, I am just helping you legally. I hope we will work together and fight together to keep you safe!
Okay, Lawyer Tang, don't worry!
Mr. Wang was relieved.
At the end of the meeting, when I was about to leave, Mr. Wang stopped me again, he seemed to hesitate a little, and then said: Lawyer Tang, there is another matter, I don't know if I want to tell you?
I said, according to the regulations, lawyers' meetings cannot be monitored, and if you are worried, then you can whisper.
Mr. Wang said that after I arrived at the case, the police kept saying that I had a bad attitude, did not cooperate, did not say anything valuable, and asked me if I still wanted to go out. I saw them say that, and I told them another thing about ......
After listening to Mr. Wang's statement, I feel that this behavior is suspected of other crimes. Therefore, I carefully questioned Mr. Wang about the subjective and objective elements of the crime.
After understanding, I felt a little relieved, because theoretically, Mr. Wang lacked the subjective constitutive elements to establish the crime, and the public security should not add charges to Mr. Wang.
It's just that theory is theory, but I'm still a little worried in my heart, otherwise, let's ask the public security side about it.
2 Investigate the case
At the end of the meeting, it was already very late, and I wanted to call the case handling team to learn about Mr. Wang's suspected crimes and basic cases, but when I looked at the time, I was about to get off work, so let's call again tomorrow.
As soon as the next day's work time arrived, I immediately dialed the ** of the Linguan City Criminal Police Detachment.
The person who took the ** should be an ordinary police officer of the case handling team, and when he heard me inquire about Mr. Wang's charges and the facts of the case, he squeaked and refused to speak.
After a few words, I was also a little annoyed. I said, "Officer, according to the provisions of the Criminal Procedure Law, the lawyer has the right to ask you about the charges and the basic facts of the case, and you must tell me."
He said, "Lawyer, if you know the facts of the case, you can go and meet with your client."
I said, I just want to ask you, because this is stipulated in the Criminal Procedure Law, do you want me to read the provisions of the Criminal Procedure Law to you?
He said, "That's not necessary." However, this case involves a wide range of departments, and we are not the only departments involved, so I can't call the shots. Or, you call ** and ask our captain, and I'll give you the captain's **.
Okay, in that case, then I won't embarrass you.
I immediately got through the captain's **.
I asked the captain, what crime is Mr. Wang suspected of?
He said you know it all.
I said if it was a fraud charge written on the detention notice?
He said yes. I said are there any other charges?
He said no. Oh, then I'm relieved.
I said that you think my client is suspected of fraud, so what kind of fraud did he commit?
Silent. I said, Captain, what kind of fraud did my client commit?According to the provisions of the Criminal Procedure Law, you must tell me that as the captain, it is impossible for you to ignore the law, right?
Captain Wei Xuan: Lawyer, haven't you already met?Still ask me?
I said, captain, it's not that I'm embarrassed for you, it's because what my clients dictate is sometimes different from what you know, and they are all criminal lawyers, and you should understand.
After pestering for a while, I was told that Mr. Wang participated in the introduction of the acquisition.
I asked: Did my client commit any other acts?
The captain said that he only has this at present, but it is not ruled out that there will be new discoveries as the investigation deepens.
3 Characterization of behavior
After several more meetings, Mr. Wang gave me basically the same answer. So, judging from the existing facts, will Mr. Wang's behavior in this case constitute a crime of fraud?
In my opinion, even if Mr. Wang's act of providing acquisition information objectively played a certain role in helping others commit fraud, in this case, he did not knowingly provide it knowing that others were committing fraud crimes, and he did not have the subjective intention to help others commit fraud crimes, so Mr. Wang's conduct in this case cannot be found to be a crime.
As for Mr. Wang's subjective ignorance:
On the one hand, Mr. Wang did not know that the relevant personnel were going to defraud state-owned assets before providing the acquisition information. Because Mr. Wang had not conspired with the acquirer and the personnel of the acquiree in advance to commit any fraud crimes, it was impossible for him to know that the relevant personnel were going to, preparing or planning to commit the fraud crimes.
On the other hand, when Mr. Wang provided the acquisition information, it was impossible for him to know that the relevant persons were going to, preparing, planning or were defrauding state-owned assets. In fact, it is impossible for Mr. Wang to know, because when the acquisition information was provided, the fraudulent intent of the acquirer and the relevant personnel of the acquiree had not yet arisen.
Obviously, the fraud suspects in the acquisition process must need Mr. Wang to provide acquisition information first, and then the two parties will actually contact. It is only after contact that it is possible for the two sides to conspire together and form a joint criminal intent. However, before Mr. Wang provided the acquisition information, the personnel of both parties had not yet contacted and conspired, so how could they form a common intention to commit fraud?The intention of fraud has not yet been formed, so how can Mr. Wang knowingly provide acquisition information knowing that others are about to commit fraud?
In addition, Mr. Wang did not know that the relevant personnel were committing fraud during the acquisition activities. Mr. Wang ceased to participate in the acquisition after providing the acquisition information, so he did not know what the acquirer and the personnel of the acquiree had negotiated, negotiated and colluded with after the acquisition began. Of course, after the acquisition officially began, Mr. Wang did not actually participate in it and did not carry out any acts, so no matter whether he knew or did not know about it, given that he did not carry out objective acts and acts, of course there was no crime.
After the analysis of the case, I firmly believed and defended Mr. Wang's innocence.
4 Collect evidence
At the same time as I began to draft the "Defense Opinion of Mr. Wang's Not Guilty Lawyer" and the "Application for Lifting or Modifying Compulsory Measures", I also began to organize the supporting evidence of the opinion of the not guilty defense lawyer.
First of all, I need to retrieve the "Intermediary Contract" of that year to see what kind of intermediary behavior Mr. Wang provided in the contract that year, and whether it is true that Mr. Wang only provided acquisition information and did not participate in anything else, as Mr. Wang said.
Secondly, in response to Mr. Wang's friend's argument that Mr. Wang only provided acquisition information, did not participate in anything else, did not do anything at all, and was not worth so much money, I also need to obtain the civil complaint, civil counterclaim, civil ruling, and the trial transcript of a court in the trial of the intermediary contract dispute that year.
At the same time, I also asked several lawyers who drafted intermediary contracts and intermediary contract dispute litigation to issue a "Statement of Circumstances" based on the situation in that year.
In my opinion, Mr. Wang's friend's refusal to pay the intermediary fee can play a role in proving the fact that Mr. Wang did not participate in the specific acquisition activities in that year, and have a supporting effect on my not-guilty defense opinion.
Through the efforts of the family members and the cooperation of the lawyers who participated in the handling of intermediary affairs, the above evidence was quickly collected and put in place.
The intermediary contract does stipulate that Mr. Wang only needs to provide information about the acquirer, and does not need to participate in other matters.
Of course, the fact that there is no need to participate does not mean that there is no actual participation. However, among other evidence, it is indeed recorded that Mr. Wang's friend said that Mr. Wang only provided information about the acquisition and did not actually participate in the acquisition activities. The content of these evidences can of course prove that Mr. Wang did not participate in the specific acquisition matters, and the content of these evidence also confirms Mr. Wang's defense that he did not participate in the specific matters of the acquisition.
Okay, that's it.
Not guilty plea
In the following meeting, I submitted my prepared opinion of the innocent lawyer, the application for lifting or changing the compulsory measures, and all the evidence I had collected to Mr. Wang for verification, and solicited Mr. Wang's opinion.
Mr. Wang basically had no objection to the defense materials that I was going to submit to the public security, and only made some minor adjustments to the facts.
After the materials were verified, I asked Mr. Wang if the public security had come in for interrogation recently
Mr. Wang replied no.
Oh, if you don't come in for interrogation, does it mean that the public security has basically completed the evidence collection work against Mr. Wang?In other words, does it mean that Mr. Wang has no forensic value?
I think it should be a good thing not to come in and be arraigned.
In the follow-up communication, I felt that Mr. Wang had obviously been detained more and more anxiously, and blindly urged me to go to the public security organ to apply for bail for him.
I couldn't help muttering: You have only been in the case for more than 10 days now, and it is still too early for the public security to extend the criminal detention period to 30 days.
But at this time, Mrs. Wang was also getting more and more anxious, and she also kept asking me when I could apply for bail pending trial.
What can I do?
Therefore, on April 28, 2023, I submitted the legal documents such as the "Defense Opinion of Mr. Wang's Not Guilty Lawyer" and "Application for Lifting or Changing Compulsory Measures" to the Linguan Criminal Police Detachment, together with the list of accepted evidence materials and evidence materials.
But at the same time, I warned and advised the families: First, your mobile phones should be turned on 24 hours a day, and if the police agree to release them on bail, according to the current judicial situation, they will only notify the family members, not the defense lawyers, because they always subconsciously regard the lawyers as opponents. Second, don't get your hopes up, because the 30-day detention period is only halfway over, and the police should not be able to release him immediately.
Sure enough, on the morning of May 4, I received a call from the police handling the case, saying that their leaders would not change the compulsory measures after discussion.
That's not to let people go.
I immediately told the family about the situation, but at the same time comforted the family: the fact that the police are not releasing the person now does not mean that they will not release the person when the 30-day detention period expires.
Subsequently, I went to the detention center to inform Mr. Wang and comfort him.
But when I asked Mr. Wang again if the police had come to the detention center for interrogation in the past few days, Mr. Wang told me that they had come in for interrogation two days ago, and they had come in to identify me with the materials of the intermediary contract dispute in the Linshen Court that year.
I said yes, this is a good thing, this is most likely because the public security attaches importance to our defense opinions.
In the following time, I hurriedly supplemented some of the evidence and legal opinions to the police.
Now, wait......
6 And they all rejoiced
After getting off work on May 11, Mr. Wang had not come out, so I drove to Linguan City overnight to find a hotel to stay. I have prepared for the worst, May 12 is the last day of my 30-day detention, and if the police still do not release the detainees, I will go directly to the procuratorate the next day to submit the "Lawyer's Opinion on Not Approving Arrest" and relevant evidence materials prepared in advance.
Early in the morning on May 12, I came to the gate of the Linguan City Detention Center, ready to meet Mr. Wang again.
But before I entered the gate of the detention center, my mobile phone rang, and when I saw it, it was Wang Dong calling: Lawyer Tang, the public security just called me, and told me to rush to the criminal police detachment immediately to go through the formalities for my father's release on bail pending trial.
Yay!I said Wang Dong, let's divide into two ways, you go to the criminal police detachment to go through the formalities, and I will go to the detention center to announce the good news.
When he came to the detention center, Mr. Wang asked as soon as he came in: Lawyer Tang, today is the 30th day, is there any hope?
I said that the police did not agree to release him, and that I was going to go to the procuratorate today to submit defense materials.
Mr. Wang was immediately deflated.
After dozens of seconds, I saw that the corners of Mr. Wang's eyes began to shine again, and I hurriedly said: Mr. Wang, I see you, you are an idle person, a person who can't stay, otherwise, I will simply take you out today.
Mr. Wang raised his head suddenly: Really fake?
I said, it really can't be fake, it can't be fake, I was just teasing you, I really took you out today, Wang Dong has already gone to the criminal police detachment to go through the bail procedures.
Mr. Wang hurriedly raised another hand that could move freely and raised it to the center of his eyebrows: Thank you, thank you, thank you, Lawyer Tang.
Everyone was happy......
On the evening of July 27, more than two months later, I received a ** from Mr. Wang again, Mr. Wang said that the Linguan public security told him to go over to the criminal police detachment tomorrow and asked me if there were any variables.
I said you don't have to be afraid, it's a blessing or a curse, and you can't avoid it, and tomorrow you can boldly go over, but you can familiarize yourself with my defense ideas tonight.
Mr. Wang said, okay, okay.
On July 28th, I kept looking at my phone all day long, waiting for Mr. Wang's **.
In the afternoon, Mr. Wang's ** finally came in: Lawyer Tang, the public security has lifted my bail pending trial.
I said, that's good, congratulations, Mr. Wang, now the sky is high and the birds are flying, and the sea is wide and the fish is jumping.
Not guilty defense lawyer
Author: Lawyer Tang Baicheng
Author's reminder: For original articles, ** the author's name and source must be indicated, and offenders will be investigated!