In criminal cases, voluntary surrender is a statutory mitigating or mitigating circumstance, and is an important part of lawyers' sentencing defense.
It is particularly important to accurately determine that voluntary surrender is related to the vital rights and interests of criminal suspects.
In practice, the circumstances of each case are different, which requires a full understanding of the relevant provisions on voluntary surrender, taking the initiative to achieve the purpose of correctly applying the law in the limited space for defense.
Looking back at the many cases I have represented, there is one about the "surrender" plot that I remember most vividly.
In this defense, we unearthed favorable circumstances in the inherent prosecution evidence, and finally achieved an effective defense.
01.
Fluke psychology, from 600,000 to 3 million
Back in 2017, lawyer Zhou Hong and I received the family of a client suspected of bribery and bribery by employers.
First, a brief introduction to the facts of the case.
Between 2012 and 2014, my client, Zhong, bribed Zhang Mou, then secretary of the Party Working Committee of a street office in Shenzhen (to be dealt with in a separate case), 600,000 yuan in order to build a building in violation of regulations in a district of Shenzhen in order to build a joint venture with others.
Zhang accepted the bribe in the spirit of "if you don't say I don't say, no one knows", and naturally opened a "back door" for Zhong.
After tasting the sweetness, Zhong felt that this method was feasible, saving a lot of trouble in quality control and inspection processes, and his courage became greater.
In September 2016, in order to help a company pass the approval of urban renewal projects, Zhong again bribed Zhang Mou, secretary of the Party Working Committee of a street office in a district of Shenzhen, 3 million yuan through others.
However, the paper could not contain the fire after all, and the bribery of state worker Zhang was exposed, and the procuratorate opened a case for investigation.
Zhong was immediately locked as a briber.
On June 8, 2017, the procuratorial investigation and handling personnel took Zhong to the procuratorate for questioning, and Zhong saw that the facts of the crime could not be hidden, and during the first questioning, he truthfully confessed how he bribed state worker Zhang 600,000 yuan through Zhang's brother.
On June 9, 2017, the procuratorate decided to open an investigation into Zhong's suspected bribery case.
In the early morning of June 10, 2017, during the interrogation of the procuratorate, Zhong truthfully confessed the criminal fact that he was entrusted by a friend to ask Wu to bribe Zhang with 3 million yuan. At 6 o'clock on the same day, Zhong was taken compulsory measures of criminal detention and sent to a detention center at 8 o'clock.
In just one day, all the facts of the crime were clearly investigated.
02.
Determine the defense idea and dig deep into the "surrender" plot
After accepting the entrustment, lawyer Zhou Hong and I carefully sorted out the chain of evidence.
It was found that in this case, the first crime involving 600,000 yuan was Zhong's truthful confession when he was brought to the procuratorate for questioning by the procuratorate's case-handling personnel, while the second crime involving 3 million yuan was Zhong's truthful confession after being investigated by the procuratorate.
However, because this case involves joint crimes, many suspects have arrived long before Zhong was arrested.
The case file materials show that the suspect who arrived first had made a more detailed confession to the facts involved in the case and clearly confessed that Zhong was involved in the case.
It was on the basis of the confessions of other suspects that the procuratorate took measures against Zhong, that is, the circumstances of Zhong's crime had long been mastered by the investigation authorities.
During the trial, the above circumstances hindered us to a certain extent from seeking to determine that Zhong had surrendered voluntarily to the collegial panel.
In view of the above situation, lawyer Zhou Hong and I conducted a full court argument for Zhong's possible surrender by carefully reviewing the details of the case file and making full use of the law.
1. The criminal facts of defendant Zhong Mou confessing to the crime of paying a bribe of 600,000 yuan when questioned as a witness is a special act of voluntarily surrendering to the crime of bribery before being prosecuted
Among the facts involving a bribe of 600,000 yuan, when we read the file, we found that it was confirmed by evidence such as the "Explanation of the Circumstances", "Notice of Inquiry", "Record of Interrogation", "Decision on Case Filing" and "Notice of Rights and Obligations of Witnesses" submitted by the case-handling organ:
On June 8, 2017, the procuratorate notified Zhong to be questioned as a witness due to the needs of handling the case.
When Zhong was questioned for the first time on the same day, he truthfully confessed the criminal fact that he bribed state worker Zhang 600,000 yuan through Zhang's brother.
On this basis, the procuratorate formally opened a case for investigation on June 9, 2017 based on Zhong's suspected bribery case.
According to paragraph 2 of article 390 of the Criminal Law:
Where the briber voluntarily confesses the bribery before being prosecuted, the punishment may be mitigated or mitigated.
According to Article 13 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in the Handling of Criminal Bribery Cases (Fa Shi [2012] No. 22), it is stipulated that:
The term "before being prosecuted" as provided for in the second paragraph of article 390 of the Criminal Law refers to before the procuratorial organ files a criminal case against the briber.
Therefore, the defendant Zhong voluntarily confessed to bribery the day before the criminal case was filed by the procuratorate, which constituted a voluntary surrender.
To sum up, it can be seen that when we argued that Zhong constituted a special surrender in this single bribery case, we did not adhere to the original provisions and judicial interpretations on "voluntary surrender" in Article 67 of the Criminal Law.
Instead, it invokes the special provisions in the judicial interpretation that the crime of bribery constitutes voluntary surrender, thus surpassing the general legal obstacle that the voluntary surrender should be the first time that the suspect can confess the facts of the crime.
2. After being placed on file for investigation, defendant Zhong confessed to other crimes that the judicial authorities had not yet learned about his acts of helping another company's bribe of 3 million yuan, and should be regarded as turning himself in
In this single crime, after reading the file, we first sorted out the entire criminal process, and found that in the process of bribing state worker Zhang, Li, the person in charge of a certain company, he passed through multiple links of sending money in a series of people, such as "Li Mou→, Liu Mou, the head of the company→ Zhong Mou→ Wu Mou→ bribe recipient Zhang", and each link was a one-way connection, and there was no cross-cutting and repeated participation.
When we combed through and screened the confessions of the above people, we found:
(1) Li, the person in charge of a company, was investigated and interrogated by the procuratorate on April 18 and May 5, 2017, during which he always confessed that his friend Liu claimed to know Zhang's brother and could help the company bribe Zhang through Zhang's brother.
However, in his confession, Li said that he did not know Zhong and did not mention anything about Zhong's participation in bribery.
(2) When the bribe recipient Zhang was interrogated by the Shenzhen Municipal Procuratorate on May 4, May 8 and August 29, 2017, he always confessed that Li had bribed himself through Wu, and never mentioned that Zhong was involved.
(3) Zhong arrived at the case for questioning on June 8, 2017, and was placed on file for investigation on June 9. Between 2:25 a.m. and 5:06 a.m. on June 10, 2017, after the procuratorate concluded its interrogation of "about the fact of paying a bribe of 600,000 yuan", the procuratorate asked him what else he had to confess.
Zhong also took the initiative and truthfully confessed the criminal facts that in order to approve the old reform project, he was entrusted by a friend to ask Wu to bribe Zhang with 3 million yuan. And according to the "Detention Certificate", on the same day, he was taken the compulsory measure of criminal detention at 6 o'clock and sent to the detention center at 8 o'clock.
(4) Liu only went to the procuratorate on August 28, 2017 to turn himself in, confessing that in order to help Li find out that Zhong had paid a bribe of 3 million yuan to Zhang through the old reform project, several of his confessions were later than Zhong's. So far, although the confessions of each suspect complement and coincide with each other, and corroborate with other objective evidence, a complete chain of evidence of bribery has been formed.
However, through careful comparison by the defenders, it was found that although the entire bribery had been confessed by others, the specific facts about Zhong's participation in the bribery were indeed fully grasped by the investigative authorities after Zhong himself truthfully confessed.
03.
From the details, there is a turnaround
In this case, it can be seen from the testimony of defendant Zhong's detention, the content of the "interrogation record" and "interrogation record" many times before and after, and the order of filing and investigation.
The procuratorate only opened the case for investigation on June 9, 2017 based on Zhong's suspected bribe of 600,000 yuan, and has not yet learned the criminal facts of Zhong's suspected help to Li and his company to bribe Zhang with 3 million yuan.
Zhong voluntarily confessed other criminal facts that the investigating authorities had not yet learned after being taken compulsory measures.
Then, according to the second paragraph of Article 67 of the Criminal Law and Article 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in Handling Voluntary Surrender and Meritorious Service (Fa Shi [1998] No. 8):
Where criminal suspects, defendants, and convicted criminals who have been subjected to compulsory measures truthfully confess crimes that have not yet been known to the judicial organs, and which are different from the crimes already known to the judicial organs or determined by the verdict, they shall be deemed to have surrendered themselves.
In addition, the judicial interpretation also gives examples:
If a criminal suspect who is later caught after a case is wanted on the Internet is not within the scope of being wanted, the criminal facts truthfully explained by the criminal suspect should also belong to the criminal facts that have not yet been known to the case-handling organs.
Therefore, Zhong's confession about participating in the crime of the 3 million yuan unit is in line with the crime not yet known to the judicial organs, and the punishment can be mitigated or mitigated according to law.
04.
Court Minutes
After the trial, the court finally held that the defendant Zhong constituted the crime of bribery and the crime of bribery by the unit, and should be punished together according to law. During the investigation, defendant Zhong voluntarily confessed the criminal facts of his personal bribery;
After being taken compulsory measures, defendant Zhong voluntarily confessed the criminal facts of bribery by his participating unit, and both the crime of bribery and the crime of bribery by the unit had the circumstances of surrendering voluntarily, and he was given a lighter punishment according to law.
In the crime of bribery by a common unit, the defendant Zhong was in the middle, played a secondary role, was an accessory, and was given a lighter punishment according to law. The court adopted our defense opinions on voluntary surrender, accessory, better attitude towards confessing guilt, and returning part of the unlawful gains.
The defendant Zhong was finally found guilty of bribery and sentenced to one year and nine months in prison; Those who committed the crime of bribery by the unit were sentenced to one year's imprisonment and fined RMB 100,000. He was sentenced to two years' imprisonment and fined RMB 100,000.
▲ Verdict
05.
End
When lawyers come into contact with criminal cases with complex cases and a large number of suspects, they usually face a large number of case files and evidence, and how to find key circumstances favorable to the defendant in the complicated documentary evidence and confessions is a test of defense lawyers' experience in handling cases, legal knowledge reserves, and sense of responsibility.
In this case, lawyer Zhou Hong and I carefully read the case files, sorted out the facts of the case, and extracted the rough and refined from the complicated evidence, formulated clear and effective defense ideas, and finally achieved better defense results in the case.
Finally, I hope that when criminal lawyers defend their clients, they must not drill into the horns and grab a stronghold, and sometimes changing the angle is not another way of solving problems.
Source丨Ren Zhongsun, Zhou Hong
Author, typesetting丨Deer
Proofreading丨No rain
Audit丨Orange
END