In the process of defending criminal cases, many people will ignore the work of the procuratorate. This is not right, to know that the prosecutor's office has a lot of power, and one of them is that they can make the decision not to prosecute. And this decision not to prosecute is obviously a very big benefit for the defendant, which is equivalent to the complete success of the defense. Regarding the procuratorate's decision not to prosecute, if anyone who knows about the Lei Yang case in Beijing has a greater or lesser understanding. In short, the prosecutor's office can make a decision not to prosecute in three situations. Of the three scenarios, two are more common in everyday criminal cases.
Therefore, in many relatively minor criminal cases, as well as criminal cases where crime and non-crime are relatively vague, the defendant, his family, and the defender should give special consideration to whether they can obtain the procuratorate's decision not to prosecute.
In addition, the Public Prosecutor's Office is responsible for prosecution in criminal proceedings, and the facts of the prosecution and the characterization of the facts are determined by them. Although the public security organs have cracked and organized a large amount of evidence and formed basic facts, the identification and screening of these evidences are all done by the procuratorate. Therefore, if the defense work can be carried out as soon as possible at this time, and the defense opinion can be submitted to the undertaker of the procuratorate in a timely manner, and once this opinion is adopted by the undertaker, then it can be said that the defense task was completed in advance.
Therefore, in many cases, defense lawyers use their own defense opinions to influence the procuratorate, and even play a better role.
In view of this, combined with the process of criminal lawyers handling cases, it is very necessary to submit a defense opinion or legal opinion to the procuratorial undertaker when the case is transferred to the procuratorate. In practice, some undertakers work more routinely, and if the public security provides something, he will transfer it to the court unchanged; but some undertakers will be very active, and he will carefully review what the public security provides, and if the defender provides a defense opinion at this time, and it is reasonable, the possibility of being adopted by them is very large.
In practice, the author often encounters situations in which the undertaker of the procuratorate asks the author for legal advice. This shows that they are more than happy to hear the opinions of defense lawyers out of responsibility for their own cases. In this way, the mature lawyers' opinions are also very conducive to their case-handling efficiency, saving their time and avoiding mistakes in their work.
In this case, it was because I submitted a legal opinion to the procuratorate that my client was not prosecuted by the procuratorate. The procuratorate handles cases in accordance with the law, but if your opinion can play a role in revealing the facts and the law, then it will inevitably play a crucial role in the procuratorate's decision not to prosecute
Regarding Cao Zhang, etc., it does not constitute fraud
Lawyer's opinion on the crime of deception
The fraud cases of Cao Zhang and about 10 other people have been submitted to your procuratorate for review and prosecution. Entrusted by Cao Zhang's father Chao Haijiang to serve as his lawyer, hereby submits a lawyer's opinion on the facts and legal issues related to this case, for reference only:
First, there are great doubts about whether the acts of liquor trusts, etc. constitute fraud
The authoritative interpretation of fraud in China's criminal law and criminal law theory circles is: "For the purpose of illegal possession, the use of fictitious facts or methods of concealing the truth to defraud public or private property, the amount of which is relatively large" The fictitious facts and concealment of the truth here should be enough to "make the victim have the illusion that he or she voluntarily delivers the property owned or held by himself to the perpetrator or gives up his ownership, or exempts the actor from the obligation to return the property." (Gao Mingxuan, editor-in-chief of The New Criminal Law)
The acts of liquor trustees and others did not fabricate facts or conceal the truth, or the acts of fabricating facts or concealing the truth did not give the victim an illusion. Although Cao Zhang and others are talking about friends to promote others to consume, it is false to talk about friends, and it is true to urge each other to consume. However, the victims know from beginning to end that their actions are consumer behaviors, and the goods they consume are clearly marked. Cao Zhang and others did not give the other party a wrong understanding, so that they did not believe that their behavior was a consumer behavior, and based on the wrong understanding, they "voluntarily handed over their own or held property to the actor or gave up their ownership, or exempted the actor from the obligation to return the property."
In real economic life, many merchants will carry out various activities in order to promote, and these activities often make consumers have the illusion that they are making profits. But in fact, this kind of concession is false and is called "pseudo concession". For example, various discounts, price reduction promotions, various preferential activities, various packages of communication companies, etc. These topics, on the 315 consumer rights protection day or on the so-called Singles' Day on November 11, are often brought up by the media and experts, believing that the so-called price reductions are actually false and are based on previous price increases.
However, because this kind of concession, whether true or false, does not give consumers the illusion that their own behavior is not "consumption behavior", these pseudo-concessions do not constitute fraud.
II. There are difficulties in determining how to determine the amount of the defendant Cao Zhang's fraud
(1) Each defendant can only be held responsible for the conduct in which it participated
According to the file information, the defendants who are the bartenders and the liquor trays are carried out and completed independently in this series of "fraud" cases, and the defendants have no intention of communicating with each other except for the team members. The fourth paragraph of article 26 of China's Criminal Law also clearly stipulates: "For the principal offender other than those provided for in the third paragraph, he shall be punished in accordance with all the crimes in which he participated or was organized and directed." Therefore, cao zhang and others can only be held liable for the "fraud" they participated in; they cannot be held liable for other "fraud" acts that occur in the bar.
(2) The amount of "fraud" of Cao Zhang and others cannot be verified
According to the file information, there is no considerable evidence to prove the amount of "fraud" of Cao Zhang and others, only the confessions of Cao Zhang, He Yan and others. According to Article 53 of China's Criminal Procedure Law, if only the defendant confesses and there is no other evidence to corroborate it, the defendant cannot be found guilty and sentenced to criminal punishment.
Therefore, according to the circumstances of the case, it can be known that the amount of "fraud" of Cao Zhang and others cannot be determined.
3. In this case, only the ringleaders who opened bars should be punished
As far as the defendants who are liquor trusts and heads are concerned, it is difficult to determine their criminal acts because of the lack of evidence. However, the confessions of the various bartenders and heads, combined with the confessions of the victims, can be used together as evidence to prove the criminal acts of the bar operators (the person nicknamed "Li Ge" in the file) who are the ringleaders, and the evidence can be done in a sufficient manner.
Sincerely
Xiaodian District People's Procuratorate
Cao Zhang's defender: Liu Yunfei
postscript:
Later, my client and another client were decided by the prosecutor's office not to prosecute. This is a more famous bar head incident in Taiyuan. It is in the name of making friends, led by the woman to the bar to consume, the amount of consumption is usually relatively high. This kind of thing has the nature of deception, but it is not a typical scam, so it is very far-fetched to identify it as a fraud. Especially for people whose auxiliary effects.
In this case, the police initially arrested more than a dozen people, and the procuratorate released several bar girls on the grounds that the circumstances were minor and other reasons during the review and approval of the arrest. Subsequently, two so-called heads were not prosecuted during the review and prosecution process. Those who had previously been released on guarantee pending further investigation were also not prosecuted. The final indictment was the owner of the bar who was later caught, that is, the main culprit. This is also my suggestion in the legal opinion, whether in terms of evidence or seriousness of the circumstances, it is obviously appropriate to punish the main person who runs the bar.
In addition, on the issue of how to influence the case-handling personnel in the procuratorate, I would like to emphasize one more point, that is, the lawyer only needs to provide written opinions to the procuratorial undertaker. There is no need to repeatedly ask and emphasize that the undertaker will act according to your opinion. The reason is very simple, if you are the undertaker of the procuratorate, you will not change your mind because of the request of the defense lawyer, and the reason why you changed the content of the police's indictment opinion is because the undertaker is also obliged to handle the case according to law.
Therefore, the undertaker of the procuratorate will not let the parties feel that the reason why the procuratorate has made the decision not to prosecute is because your legal opinion has played a role, as if the lawyer's legal opinion is the holy will of the procuratorial undertaker. Therefore, in this kind of psychology, the stronger your demands, the more the person in charge of the procuratorate will think that you have made some kind of promise to the person, saying that you have the ability to make the procuratorate make a decision not to prosecute or otherwise.
Therefore, the lawyer keeps a low profile and provides advice, and then there is no need to contact the undertaker. How to do it, naturally the undertaker has a number of psychology, after all, handling cases according to law is also their work requirements. Therefore, as long as your opinion is reasonable, then you will not worry about not being adopted by the undertaker of the procuratorate.