Defensive words
The presiding judge and adjudicators accept the entrustment of the defendant and his close relatives, and the lawyer acts as his defender to appear in court to defend him, and hereby issues the following defense opinions on the relevant factual and legal issues in this case, which please consider.
First, Sun Lanliang did not hide from Park Lianglu the fact that "Yang Jiankui has transferred the forest power land to Xu Yongsheng".
The indictment alleges that "Sun Lanliang concealed that Yang Jiankui had transferred the forest rights to Xu Yongsheng" in an attempt to prove that Sun Lanliang had committed fraud, but the objective evidence in this case can clearly show that Sun Lanliang did not conceal the fact, but fully disclosed the fact.
First of all, when Sun Lanliang and Park Lianglu signed the "Cooperative Operation Agreement", he showed Park Lianglu a copy of the "Notice" issued by the Potou Village Committee of Caochuan Town, where the incident occurred, which Was also provided to the case-handling department as evidence when he filed the case, and as evidence in this case. The notice clearly states: "The holder Xu (Xu) Yongsheng can reach a consensus with the private person within the scope of this certificate, through the circulation method, and the villagers' forest rights certificates are transferred to Xu Yongsheng, but in the construction of the enterprise, aluminum and iron ore, in order to rescue resources, not wasted, allow mining, must be completed in the near future, can not affect the construction of enterprise projects." ”
The notice has clearly stated the fact that Yang Jiankui has transferred the forest land to Xu Yongsheng, and Park Lianglu can fully understand the current situation of the forest land according to the notice. Therefore, Sun Lanliang did not hide this fact from Park Lianglu.
Secondly, Zhang Minglun, a witness in this case, confirmed that it was he who introduced Pu Lianglu to Sun Lanliang, and he clearly stated in the interrogation record: "Sun Lanliang said: 'I contracted a piece of forest rights land in Potou Village, Caochuan Town, Pinglu County, and there was aluminum ore under this land, but this place was to be built as a lime factory, and the owner of the lime factory, Xu Yongsheng, said to let me dig the aluminum ore below for rescue, you come to dig the aluminum ore mine for me, dig a ton and I will give you 30 yuan', I asked him how long it took, Sun Lanliang said, 'After digging the aluminum ore, the deposit is 500,000 yuan...' ”
Because Zhang Minglun was the digger on the plot before, he introduced Park Lianglu to continue to contract excavation in order to withdraw, so Zhang Minglun had the obligation and was bound to introduce the details of the plot he knew to Park Lianglu. Therefore, it is impossible for Sun Lanliang to conceal this fact, and there is a situation in which Park Dae-lu is concealed.
Sun Lanliang did not claim to Park that the woodland "belongs to him."
The indictment alleges that Sun Lanliang claimed to Park That the forest land involved in this case "belongs to him", and the objective evidence in this case shows that this allegation is purely untrue.
In the transcript of the interrogation (November 22, 2015), Park Saidrou said: "I asked him who owned the land, there were no formalities, Sun Lanliang said that this land was contracted by him, the procedures were complete, and said that he assured me that he had the forest rights certificate for this land in his hand, Sun Lanliang also provided me with the contract agreement he signed with Liu Yuanming for this land, and I later provided this copy to the public security organs... Got it."
The transcript proves that when Sun Lanliang and Park Lianglu signed a cooperative operation agreement, the forest rights certificate of the forest land involved, the "Contracting Agreement" signed by Liu Yuanming and Yang Jiankui, the forest rights witness, and the "Agreement" signed by Sun Lanliang and Liu Yuanming were provided to Park Lianglu, and Park Lianglu also provided these documents to the case-handling department as evidence, and also existed in the case file as evidence in this case.
This evidence clearly shows that the contractor of the forest land is Yang Jiankui, and Liu Yongsheng and the defendant Sun Lanliang are both subcontractors.
It can be seen from this that Sun Lanliang did not fabricate to Park That the forest land involved in this case "belongs to him", but clearly stated through written evidence that he was only a subcontractor. Therefore, the facts of the indictment alleging the crime do not exist.
Third, Sun Lanliang fully has the ability to fulfill the Cooperative Operation Agreement
The prosecutor alleged at trial that Sun Lanliang signed the agreement with Park Lianglu without the ability to perform, and in fact, the objective evidence in this case shows that Sun Lanliang is fully capable of this.
According to the clear provisions of China's Forest Law Implementation Rules, the occupation of forest land must be approved by the relevant departments of the provincial government before it can be carried out. Therefore, the county government's investment and investment occupation of forest land to build lime mines is illegal, and the investment promotion behavior does not indicate that the contractor of forest land must legally subcontract the forest land to Xu Yongsheng. That is to say, Xu Yongsheng's use of forest land does not have coercive power from the government, and if Xu Yongsheng wants to obtain the right to use forest land, he must reach an agreement on the basis of equal consultation with the right holders who have a rights relationship with the forest land.
According to the confessions of Yang Jiankui and Liu Yuanming, when they signed the "Forest Slope Circulation Agreement" with Xu Yongsheng, they had already reserved the right to mine aluminum ore under the forest.
Witness Yang Jiankui stated in his transcript dated April 23, 2014: "Q: At that time, you signed forest land to Liu Yuanming for 10 years, what was the contract fee? A: A total of 300,000 yuan in contract fees for ten years. Q: The agreement signed by Liu Yuanming is not timed, will you refund the contract fee to Liu Yuanming? A: At that time, if Liu Yuanming had not agreed, I would not have signed an agreement for Xu Yongsheng. At that time, At the beginning, Liu Yuanming did not agree to give Xu Yongsheng, and later Xu Yongsheng asked Liu Yuansheng to dig the aluminum stone under the forest land he contracted, and after the aluminum was dug, the woodland was used by Xu Yongsheng. Around February 20, Liu Yuanming agreed to the land transfer agreement signed between me and Xu Yongsheng. He agreed to the circulation agreement I signed, why should I refund him the contract fee. ”
In this regard, Liu Yuanming stated in the transcript: "Q: When did you contract Yang Jiankui's woodland? A: I signed a ten-year contract agreement with Yang Jiankui on May 20, 2012, when I paid him a contract fee of 300,000 yuan, and I contracted this forest land just to dig up aluminum to make money. However, because I did not have a mining certificate and other documents, I could not mine until the beginning of this year, When Shi Hongrui Lime Company was ready to occupy this forest land, I did not agree at that time, after consultation between the village and Xu Yongsheng, Xu Yongsheng agreed that we would pull away the aluminum in the woodland within a two-month period, and the village branch secretary and the village also asked me to draft a notice to send to the mine with aluminum ore resources. Q: At what time does Qirui Lime Co., Ltd. allow you to dig up the aluminum stone? A: After the Spring Festival this year, Xu Yongsheng verbally said to the village that there was a two-month period, and after communicating with the village chief and the village branch secretary, I drafted a notice that the notice said that the aluminum mining must be completed in the near future, and cannot affect the construction of the project of Qirui Lime Co., Ltd. The date of this notice is February 23, 2014. Q: You told Sun Lanliang that you would finish the excavation of aluminum? A: When the agreement was signed on March 1, I told Sun Lanliang that the mining of these aluminum stones should be completed as soon as possible, and that the construction of the company should not be affected. At that time, he also agreed, and we signed an agreement. ”
Xu Yongsheng, as a legal person of Qirui Company, also stated in the record: "At that time, Guan Liuqing of our company was responsible for land acquisition on behalf of the company, and Liu Yuanming, deputy village chief of Potou Village, was responsible for land acquisition on behalf of the village. When I talked to the village at the end of the new year this year, the village said that some of them had aluminum under the forest warrant, and I said that if you had it, you could dig it, but you were only allowed to finish the excavation within two months, and it could not affect my investment and factory construction work in your village. Q: When did you sign the agreement on land acquisition in Potou Village? A: We signed the agreement with Potou Village on February 20, 2014, and the effective date was also February 20, but the compensation I gave them was around March 5..."
The civil legal relationship reflected in the above statement is as follows: Yang Jiankui, the owner of the forest land, previously subcontracted his forest land to Liu Yuanming for 300,000 yuan, so Liu Yuanming was the actual right holder of the forest land, and if Xu Yongsheng Company wanted to obtain the contracting right to the forest land from the holder Yang Jiankui, it must obtain Liu Yuanming's consent. According to the confessions of Yang Jiankui and Liu Yuanming, when Xu Yongsheng's Qiao Rui Company signed a subcontracting agreement with the holder Yang Jiankui, Yang Jiankui agreed to sign it because he obtained Permission from Liu Yuanming, and the reason why Liu Yuanming agreed to sign the subcontracting agreement was because Xu Yongsheng made a promise to Liu Yuanming and other people who had the right to occupy the ore under the forest, promising that they could dig up the ore, which was two months. To this end, the Potou Village Committee also issued a notice on February 24, 2014, requiring the owner of the aluminum mining right to complete the aluminum mining in the near future.... It is precisely because Xu Yongsheng made a commitment to the right holder of the aluminum ore out of the validity of the contract, so Liu Yuanming and other aluminum rights holders agreed to transfer the forest land to Xu Yongsheng by the holder, and at the same time, Xu Yongsheng was also obliged to ensure that the aluminum right holder would finish the mining of the aluminum in the near future.
The "notice" issued by the Potou village committee clearly states that the right holder of the aluminite mine "must finish mining in the near future", which is obviously the result of consultation between Xu Yongsheng and the village committee, and this time requires xu Yongsheng and the aluminum rights holder to comply. So how long is this "near-term" determined? This should be determined in accordance with the principle of fairness and reasonableness of the civil law, the rights holders of the aluminite mine have paid a large amount of contract fees to the holders, while Xu Yongsheng has obtained the right to contract only by paying 20,000 yuan to each holder. Therefore, Xu Yongsheng has the obligation to ensure that the interests of each bauxite rights holder are realized, and has the obligation to ensure that they will dig up the ore under the forest within a reasonable time, rather than as long as Xu Yongsheng wants.
According to Xu Yongsheng's confession in the transcript of the interrogation, the time of his payment to the holder was around March 5, 2014, so the two-month period should be at least after May 5. At the same time, the notice also stipulates a condition, that is, it will not affect the construction of Xu Yongsheng lime mine, according to the audio evidence provided by the defender to the court, it can be seen that Xu Yongsheng's lime mine only began construction in 2015, and the people who mined on the plot only completed mining at the end of 2014.
In summary, it can be seen that in civil law, Sun Lanliang has complete right to mine the bauxite under Yang Jiankuilin, so he has full performance capacity for the Cooperative Operation Agreement. The prosecutor's allegation against Sun Lanliang is not true.
4. The indictment found that Sun Lanliang concealed two facts, and that the prosecutor only identified the witnesses' unilateral statements, ignoring the contradiction between the statement and other objective evidence, and violating the civil legal relationship involved in the case.
The two facts that Sun Lanliang concealed were found in the indictment: "On March 5, 2014, Xu Yongsheng paid compensation to the villagers whose land was expropriated and asked the villagers to dig up the aluminum under the forest within ten days"; "At the end of March 2014, because Li Lin's mining behavior affected xu Yongsheng's factory and mine construction, Xu Yongsheng asked Sun Lanliang to complete the excavation within three days." ”
The indictment's determination of the above facts is based on Xu Yongsheng's statement, and there is no other evidence to corroborate it. Moreover, the above determination directly contradicts the "Notice" issued by Potou Village, because the notice is the result of consultation between the village committee and Xu Yongsheng, the period is two months, and it cannot affect the construction of the limestone mine, and Xu Yongsheng has no right to change this period at will.
V. Xu Yongsheng's act of obstructing construction is a civil breach of contract, and there is a clear agreement on the "Cooperative Operation Agreement" signed by Sun Lanliang and Park Lianglu
Article 4 of the agreement stipulates: "Party A (Sun Lanliang) ensures that its ownership of the mine is flawless, and if Party B cannot operate due to a dispute over Party A's ownership, Party A shall compensate Party B for losses and pay liquidated damages." Article 5 stipulates: "Party A is responsible for the smooth mining and construction of Party B, if a third party obstructs the work stoppage, Party A shall actively coordinate the handling, shall be resolved within 24 hours, more than 24 hours, Party A shall compensate Party B for the loss of work stoppage." If the work is stopped for 7 consecutive days as a breach of contract by Party A, Party B has the right to terminate the contract and claim compensation for related losses. ”
The agreement of the above agreement clearly shows that Xu Yongsheng's obstruction of construction violated the agreement he reached with Liu Yuanming for Xu Yongsheng; for Liu Yuanming, Liu Yuanming violated the agreement he reached with Sun Lanliang; for Sun Lanliang, he violated the agreement he reached with Park Lianglu.
Therefore, Xu Yongsheng's act of obstructing construction is a clear breach of contract, for which the agreement signed by Sun Lanliang and Park Lianglu can be clearly indicated. However, the prosecution recognized this apparent civil breach as fraudulent, which was clearly a disregard for the facts.
Fifth, Liu Yuanming and Sun Lanliang's behavior is completely consistent, if Sun Lanliang constitutes fraud, then Liu Yuanming also constitutes fraud.
The evidence at the trial can prove that Sun Lanliang and Liu Yuanming signed a contract "Agreement", and Sun Lanliang later signed a "Cooperative Operation Agreement" with Park Lianglu based on this agreement, and the content of the two agreements is basically the same, and the background involved is also completely consistent. The contract issuer is obliged to ensure that the contractor is not obstructed in the course of its operations. If Xu Yongsheng's obstructive behavior leads to Sun Lanliang's fraud, then the same obstructive behavior will also lead to Liu Yuanming's fraud against Sun Lanliang.
So why only believe that Sun Lanliang's behavior constitutes fraud, but indifferent to Liu Yuanming's same behavior? It is clear that there is a serious inconsistency in the application of the law here.
Sixth, Park Lianglu's behavior is an act of private digging and indiscriminate mining, which is not protected by law, and the criminal law protects legal rights and cannot protect illegal acts.
According to the provisions of China's Mineral Resources Law, mineral resources belong to the state, and mining without obtaining a mining license is an illegal act of private mining and indiscriminate mining, which seriously constitutes the "crime of illegal mining".
However, the Ruzhou Public Security Bureau and the procuratorate turned a blind eye to this and used public power to protect the illegal acts and illegal interests of lawbreakers. This move involves malfeasance and abuse of power.
VII. This case is suspected of being related to the case, and is suspected of the public security organs' interference in economic disputes
According to the defender's questioning of the defendant in court, it can be seen that the police officer undertaking the case said a lot to the defendant Sun Lanliang, that is, it is not related to the investigation and handling of the criminal case and violates the law, and these speeches reflect that the subjective purpose of the police handling the case is to recover 500,000 yuan for Park Lu, rather than handling criminal illegal cases. Combined with the so-called evidence in this case, the defender had reason to believe that this was an illegal act of public security interference in an economic dispute, which objectively constituted a false accusation and frame-up of Sun Lanliang.
Sun Lanliang and his family will further accuse and report this behavior.
VIII. Park Lianglu made false accusations and framed Sun Lanliang
In the interrogation record, Park Lianglu alleged: "Sun Lanliang said that this piece of land is his, he has a forest right certificate, he took out the agreement signed with Liu Yuanming for me to see, told me that this land he is digging, 1 million yuan transferred to me, let me pay 500,000 yuan first to transfer the forest right certificate to me, I can go to mining." ”
According to the considerable evidence in this case, Sun Lanliang never deceived Park Langlu in any form to make him believe that this forest land belonged to him; in addition, the false allegations in the indictment were also based on Park Lianglu's confession, so Park Langlu's above allegations of violating basic facts constituted a false accusation against Sun Lanliang.
In summary, I request that the trial court be able to give Sun Lanliang a fair judgment in accordance with the law, safeguard Sun Lanliang's basic rights, correct the illegal acts of the public security and procuratorate, and correct the erroneous judgment of the Ruzhou Municipal Court.
defender:
Shanxi Zhurong Wanquan Law Firm
December 2016
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