Wensheng Xueyou
On November 13 and November 15, 2023, the author made a detailed report on the case of Liaoning Shang Zhaoming's embezzlement, with the titles of "Another masterpiece of lawyer Jiang Caiyi: Liaoning Shang Zhaoming's embezzlement case was found not guilty in the retrial" and "Criminal defense lawyer Jiang Caiyi: The "four noes" case was judged to be extremely wrong in the case of embezzlement, and the retrial was not guilty".
On February 23, 2024, the author learned from Jiang Caiyi, a well-known criminal defense lawyer and director of Hainan Caiyi Law Firm, that the author paid attention to the reported case of Shang Zhaoming's embezzlement of Jiang Caiyi**, and after Shang Zhaoming's retrial and acquittal, there was new progress in the case, and Shang Zhaoming received more than 850,000 yuan in compensation from the state.
According to lawyer Jiang Caiyi, on January 17, 2024, Shang Zhaoming received the "State Compensation Decision" from the Liaoyang Intermediate People's Court.
Jiang Caiyi told the author: "The Liaoyang Intermediate People's Court compensated Shang Zhaoming for personal freedom and spiritual comfort, totaling 85more than 40,000 yuan; Eliminate the impact of Shang Zhaoming, restore his reputation, and apologize. ”
On February 6, the relevant leaders of the Liaoyang Intermediate People's Court led a team to apologize for Shang Zhaoming.
At the beginning of 2011, Shang Zhaoming partnered with Zhou Moumou and Ma Moumou to engage in real estate development in Liaoyang City, Liaoning Province, and the three parties jointly invested in the capital, each accounting for one-third of the share. borrowed the name and qualification of Zhou's Hongfei Company for sales, and the profit and loss had nothing to do with Hongfei Company.
In May 2013, the three broke up. When the partnership was dissolved, the three of them sent financial personnel to each other to liquidate and distribute the profits during the partnership.
On March 19, 2015, when Zhou Moumou borrowed 10 million yuan from Shang Zhaoming and Ma Moumou, the three signed the "Agreement". In addition to stipulating the loan matters, the "Agreement" also clarifies in writing the liquidation, income distribution and performance of the disbanded partners.
After the disbandment, Zhou Moumou did not pay Ma Moumou and Shang Zhaoming 10 million yuan of partnership income as agreed, and Shang Zhaoming sued the court and won the lawsuit, and the two companies of Zhou Moumou were sentenced to pay Shang Zhaoming 10 million yuan and interest.
After losing the case in the first instance, Zhou Moumou reported Shang Zhaoming's fraud in the name of Hongfei Company. Shang Zhaoming detained, arrested, prosecuted, Liaoyang.
The court of first and second instance sentenced him to 6 years' imprisonment for the crime of embezzlement.
After Zhou appealed, the Liaoyang Intermediate People's Court made a final ruling on the grounds that Shang Zhaoming had committed the crime of embezzlement, rejecting Shang Zhaoming's lawsuit. Shang Zhaoming's partnership income of 10 million yuan should be obtained in accordance with the law, because of this criminal case, it was lost.
Jiang Caiyi ** appealed to Shang Zhaoming's criminal case, and after reviewing the file, he pointed out that when Zhou Moumou is the debtor, Shang Zhaoming is the creditor, and Shang Zhaoming is still owed 10 million debts unpaid, how can 116 happenWhat about the crime of embezzlement of 50,000 yuan?
This is a deliberate attempt to create an unjust, false and wrongly decided case, knowing that he is not guilty, and deliberately bending the law." Jiang Caiyi said, adding that the case of Shang Zhaoming being convicted of embezzlement in public office was an out-and-out "four-no" case
UnitlessThree natural person partnership, borrowing or relying on the name and qualification of Hongfei company, into the development and sale of ** real estate, all the income is shared by the three natural persons, the subject of this case is the legal relationship of the partnership of three natural persons, there is no unit, how can it encroach on the property of the unit? !
No positionAt the time of the alleged case and the embezzlement of duties, the three of them had been separated for nearly two years, and a forged document said that Shang Zhaoming's position of "deputy general manager" had nothing to do with sales, but it could not be justified, because at this time, the three had been separated for half a year. Two years ago, the gang was disbanded, the project was over, the liquidation was completed, the partnership project was gone, Shang Zhaoming did not have any position, how could he encroach on his position?
No encroachmentThe case involved 11650,000 yuan, according to the agreement at the time of liquidation, Zhou Moumou transferred it to a gold store account in three installments two years after the disbandment. During this period, Shang Zhaoming did not ask Zhou Moumou for money, did not sign on financial vouchers such as transfers and collections, when the money was transferred, how many times, and how much, Shang Zhaoming did not know at all, there was no illegal appropriation of his own behavior, where did the encroachment come from?
There are no objects of encroachmentThe target of the crime identified in the second instance was 11650,000 yuan deposit, but all the evidence can prove that the money belongs to Shang Zhaoming and Ma Moumou. If there is no object of encroachment, where is the encroachment of duties?
Jiang Caiyilu told the author that with such an obvious factual and legal relationship, the first- and second-instance judgments actually found Shang Zhaoming guilty of embezzlement in the "four nos" cases of "no unit", "no position", "no act of embezzlement", and "no target of embezzlement", and sentenced him to 6 years in prison. ”
Lawyer Jiang Caiyi's resolute persistence and his wonderful not-guilty defense ushered in the dawn of justice
On June 6, 2023, the Liaoning High Court made a retrial decision, ordering the case to be retried by the Anshan Intermediate People's Court;
On October 12, the Anshan Intermediate People's Court found that Shang Zhaoming had committed the crime of embezzlement in public office, and the facts were unclear and the evidence was insufficient, and ruled to revoke the charge in accordance with law;
On October 13, Shang Zhaoming was released.
On November 13, 2023, Shang Zhaoming, who had been released from prison for a month, submitted an application for state compensation to the Liaoyang Intermediate People's Court, and requested that the judge handling the case be held legally responsible for arbitrarily adjudicating the law.
On January 17, 2024, Shang Zhaoming received the "National Compensation Decision" from the Liaoyang Intermediate People's Court.
According to the provisions of the State Compensation Law, the standard of compensation for violations of citizens' personal liberty determined by the Supreme Court from May 10, 2023 onwards shall be 43689 yuan is calculated, and the compensation for the infringement of personal freedom by Shang Lighting is 56970456 yuan.
The Supreme Court's judicial interpretation of state compensation stipulates that "a person who is innocent or whose pursuit of criminal responsibility has been terminated shall be detained for more than six months" and "if a person causes mental injury and causes serious consequences, he shall generally be compensated with a solatium of less than 50% of the compensation for personal freedom".
In this case, Shang was innocently detained for 1,304 days, which met the above-mentioned statutory circumstances of "causing serious consequences". Therefore, the Liaoyang Intermediate People's Court determined that the solatium for moral injury was a compensation for personal freedom.50 i.e., 28485228 yuan. The highest percentage of spiritual solace was given.
In this regard, on January 15, the Liaoyang Intermediate People's Court, the organ with the obligation to compensate, made a decision: compensate Shang Zhaoming for his personal freedom and spiritual solace for a total of 85455684 yuan; Within the scope of the impact of the infringement, the compensation claimant Shang Zhaoming eliminated the impact, restored his reputation, and apologized.
On February 6, a group of 3 vice presidents of the Liaoyang Intermediate People's Court went to Shang Zhaoming's company and personally bowed to Shang Zhaoming to apologize.
Shang Zhaoming put forward "four" requirements to the vice president:
1. Shang Zhaoming, who was enforced by the court of first instance for the crime of embezzlement by the Liaoyang Intermediate People's Court, was executed by the Liaoyang Intermediate People's Court's final judgment of Shang Zhaoming50,000 yuan of funds, please execute the turnaround;
2. The Liaoyang Intermediate People's Court ruled to reject Shang Zhaoming's civil case of 10 million yuan due to the effective judgment of guilt, and initiated the retrial procedure through the "discovery of the president";
3. The court of first instance revoked the first-instance judgment (already effective) signed by Zhou XX, Shang Zhaoming, and Ma XX on March 19, 2015 for Shang Zhaoming's crime of embezzlement;
IV. Pursue the legal responsibility of case-handling judges for intentionally misjudging or perverting the law.
Lawyer Zhang Lingling, Jiang Caiyi's assistant who was present at the time, told me that the leaders of the Liaoyang Intermediate People's Court attached great importance to Shang Zhaoming's "four" requirements, and said that after returning home, they would urge and coordinate the relevant departments to pay close attention to the implementation and give Shang Zhaoming a satisfactory answer as soon as possible.
(Sheng Xueyou, a member of the Revolutionary Party of the Kuomintang, a senior rule of law.) He has been a legal journalist for more than 30 years and has covered the National People's Congress and the National People's Congress for more than 10 years. His works have won provincial and municipal awards. The deeds have been reported by CCTV, economic ** and many other national **. ）
Some of his previous works.
Li Xuehui: It is solemnly recommended to establish a system for eliminating records of administrative violations.
In the case of Ma Shushan in Qianxi, what does Procurator General Ying Yong's approach show us?
The Chengdu Intermediate People's Court was accused of supporting illegal interests", and the First Civil Division of the Supreme Court did not support it.
Civil Procuratorate of Jiaozuo Municipal Procuratorate: Find the right entrance, accurately supervise, and maintain fairness and justice.