Text: Lawyer Zou Yujie.Gazette cases, adjudication reference cases, and Guiding Cases may differ in effect when compared with Guiding Cases, but as long as cases with a high degree of similarity are found, they will have a great impact on the judges, and may eventually change the outcome of the case.Do a lifetime of criminal defense to prevent 10,000 people from losing their ......
And this effect can have an effect on all kinds of cases, whether criminal, civil, or administrative.
At least in my own experience, all three work well.
The impact of gazette cases in civil cases.
In the previous case, the debtor and his relatives made a false lawsuit, and the case was settled through mediation in the Intermediate People's Court, and the subject matter of the private loan was as high as seven or eight million.
As a result, if our client is less than 2 million yuan, it is absolutely impossible to fully enforce the case, because the first 8 million yuan case will seriously affect the execution result of our case.
Therefore, one can only sue for the revocation of the above-mentioned civil mediation agreement.
In this kind of third-party revocation lawsuit, the controversy is still quite large, and most judges believe that the parties are not qualified to be the subject of litigation.
Fortunately, we found a communiqué case (Zhang Meiyun, Zhu Zhongmin, Tian Lifang, a third-party withdrawal litigation dispute case), which is almost exactly the same as this case, but the subject amount is not the same.
The final result was that the Provincial High Court made a judgment that was more favorable to the parties with reference to the case.
Let's take a look at the effect of the Supreme People's Court's cases in administrative cases.
Many years ago, we handled an administrative litigation case in which the company's land use rights were recovered without compensation.
The party is a company, because it involves changing the use of the land without authorization, so the local land law enforcement department issued an administrative penalty decision, deciding to recover the company's land use rights without compensation, and the buildings worth tens of millions of yuan on the land still need to be disposed of and restored to their original state.
After administrative reconsideration, the application was rejected and the original penalty decision was upheld.
At that time, there were not so many judgment documents on the Internet as there are now, but after repeated searches, fortunately I found a case published by the Supreme People's Court, which is a civil case, which is still different from our administrative case.
In the opinion of the Supreme People's Court, this kind of case is a civil dispute, because it is a land transfer contract relationship, according to the law, the two parties to the contract are equal, even if the land transferor has the right to enforce the law, and the dispute between the two parties should still be resolved through negotiation on an equal footing, or through civil means, and should not directly use administrative power to intervene.
In short, according to the spirit of the Supreme People's Court, such cases should be recognized as civil disputes and should not be resolved by means of administrative penalties, so the administrative punishment in our case is obviously wrong.
Finally, after the mediation of the court, the ** department will revoke the administrative penalty decision and the administrative reconsideration decision.
Finally, let's talk about a reference case in a criminal case.
About four or five years ago, I cooperated with other lawyers in a fraud case.
According to the accusations, our clients were defrauded through Pu'er tea, and they developed customers through speculation, so that they could buy Pu'er tea, and then through the way of operation, so that Pu'er tea rose higher and higher, rising to a certain extent and suddenly declining, resulting in the direct evaporation of customers' funds.
Therefore, the public prosecution determined that this method fully met the constitutive elements of the crime of fraud and should be found to be the crime of fraud.
The amount involved in our client is about 5 million, and if convicted of fraud, it must be sentenced to more than 10 years.
Later, a similar case was found in the reference case of the criminal trial, and the crime of illegal business operation was finally found in the reference case of the trial.
Comparatively speaking, the crime of illegal business operation is obviously much lighter than the sentence of fraud, and after communication, the final result is relatively ideal, and the conviction is the crime of illegal business operation and the sentence is 6 years imprisonment (our client is the first defendant).
However, the family was still not satisfied with the result, they thought that it should be innocent, and later continued to appeal, and we did not intervene again.
However, on the whole, if there is no trial reference case, the first-instance sentence is likely to be more than 10 years.
Therefore, the role of the case is still relatively large.
Author: Zou Yujie.
Founder of Nine Chapters Criminal Defense, founder of Anhui Lawyer Portal;
Director of the Criminal Committee of the Bozhou Lawyers Association, Director of Jinyatai (Bozhou) Law Firm, and ...... of Outstanding Legal Aid Lawyers
Goal: Twenty years of brute strength to save 100 lives!