This female lawyer is a post-90s generation, and she is still the main offender in the case. In the first instance, she believed that she was not guilty, and although she expressed her "plea of guilt and acceptance of punishment" in the second instance, she did not admit that she actively participated in the false issuance of VAT special invoices, so the court of second instance held that she did not meet the statutory requirements for the application of "admitting guilt and accepting punishment" based on the evidence in the case.
The first-instance verdict of this case was that a company and a female lawyer and other 4 people were convicted of false crimes, a fine of 200,000 yuan was imposed on a company, and 4 people including a female lawyer were sentenced to 3 to 1 year in prison.
Those who have read the previous ** know that if the individual is not fined for the crime of false issuance of special tickets, it means that this is a case of the crime of false issuance of special tickets by a unit, so that the identity of the individual in the case is either "directly responsible for the person in charge" or "other directly responsible personnel", and the female lawyer and other 4 people in this case were sentenced as "other directly responsible personnel".
So how did a female lawyer become the "directly responsible" person of a company?
After a company was ruled by the court to enter the bankruptcy reorganization procedure, the court appointed the law firm where the female lawyer worked as the bankruptcy reorganization administrator, and the female lawyer was one of the administrators. In the early stage, female lawyers and others were resident in the company for supervision, and in the later stage, there was only one female lawyer left in the company, and the power was also very large, so that the female lawyer became the "directly responsible" person of a company.
Because the company lacks input tickets, the female lawyer and other sentenced 4 people discussed and decided to buy tickets together, and the tax involved in the purchase of input tickets amounted to more than 200 yuan. I really don't know what this female lawyer thinks.
After May 2022, the case filing standard has become "false tax amount of more than 100,000 yuan or causing a loss of state tax of more than 50,000 yuan".
In view of this case, the following two points need to be understood:
First, the judgment mentions "knowingly" several times, once again emphasizing that the "knowing" of criminal intent includes both "clear knowledge" and "knowing that it is possible", and "knowing that it is possible" is most easily ignored, and can be roughly understood as "knowing that one's actions 'may' have consequences that are harmful to society".
In order to better understand how the case-handling unit understands and applies "knowingly" in practice, I would like to quote the relevant content of the "Minutes of the Meeting on Issues Concerning the Application of Law in the "Broken Card" Action in 2022, which is a bit long.
The principle of consistency between subjectivity and objectivity shall be adhered to in determining whether the perpetrator 'clearly knows' that others are using information networks to commit crimes, that is, subjective and objective factors such as the perpetrator's cognitive ability, past experience, transaction partners, relationship with the perpetrator of information network crimes, the time and method of providing technical support or assistance, profits, the number of rentals, and the number of 'two cards', as well as the perpetrator's confession, and at the same time emphasizing hearing the perpetrator's justifications and making a comprehensive determination based on whether their justifications are reasonable or not.
In the judicial handling of cases, it is necessary to prevent one-sided reliance on the perpetrator's confession to determine knowledge; It is also necessary to avoid simple and objective imputation of guilt, and directly determine that the perpetrator knew it just because he had ** 'two cards' behavior. In particular, if there is a relationship of relatives and friends between the two parties to the transaction, and one party does occasionally rent out to the other party, it is necessary to prudently determine that it was 'knowingly' based on the facts and evidence in the case."
Although the content is a bit long, I believe that after reading it, I will have a preliminary rational understanding of how the case-handling unit understands and applies "knowingly".
The female lawyer in this case is estimated to have lacked experience in handling criminal cases and lacked a rational understanding of the "knowing" of criminal intentions, so she did not admit guilt in the first instance, but still conditionally "pleaded guilty and accepted punishment" in the second instance, which eventually led to serving 3 years in prison, which is quite regrettable.
Second, the company's defender argued that the company did not constitute a crime, because the act of issuing special bills occurred during the company's bankruptcy proceedings, and the bankruptcy administrator made false bills in the name of the company, and the consequences should not be borne by the company.
However, the court held that although the company entered the stage of bankruptcy reorganization, the company was still an independent legal person, the company was not deregistered, and the illegal gains obtained by issuing false special bills in the name of the company also belonged to the company, so it should be determined that it was a crime committed by the unit.
The above content is from the China Judgment Network, Criminal Ruling (2020) Lu 08 Xingzhong No. 420 of the Intermediate People's Court of Jining City, Shandong Province.