Summary of the main points of the adjudication
Main points of the judgment IV: Paragraph 1 of Article 74 of the Judicial Interpretation of China's Criminal Procedure Law stipulates that the content of the testimony should be examined as a direct perception of the witness
The first paragraph of article 74 of the Judicial Interpretation of China's Criminal Procedure Law stipulates that the testimony of witnesses shall focus on reviewing whether witnesses have an interest in the parties to the case and the outcome of the case. If there is an interest, the lawyer should disclose to the case-handling organ the risk of distortion in the witness's testimony in conjunction with other evidence in the case
6 Main Points of the Judgment: Paragraph 2 of Article 75 of the Judicial Interpretation of China's Criminal Procedure Law stipulates that the speculative, critical, or speculative testimony of witnesses must not be used as evidence, except where it is judged to be in line with the facts based on general life experience
Case 4: Wang Mengjun's rape case
Case No.: Anhui Provincial High Court (2017) Anhui Xing Retrial No. 2 Criminal Judgment
Reasons for judgment:
A review by the People's Court of Yanling County, Henan Province, showed that at about 9 p.m. on October 12, 2000, defendant Wang Mengjun, after getting a haircut and washing his face at the Jiumei Beauty Salon in Nanguan, Yanling County, invited the waiter Tian X out to eat on the street, and after the two finished eating on Cross Street, defendant Wang Mengjun led Tian X to a commercial bath and pulled him into a single bathroom, and despite Tian X's resistance, stripped off his clothes and raped him. After that, defendant Wang Mengjun led Tian to the county Regent Hotel to stay, and the next morning sent Tian back to jiumei beauty salon. In the afternoon, when the defendant Wang Mengjun came to the Jiumei beauty salon again, Tian called the public security organ to report the case, and the defendant Wang Mengjun was arrested.
The above facts are confirmed by the following evidence: 1. The victim, Tian Mou, stated the time and place of rape forcibly pulled into a single bathroom by Wang Mengjun, the means used by Wang Mengjun, and the process of reporting the case. 2. Witness Fan X proves that the victim Tian X cried to him about the rape and reported the facts to the public security organs, and corroborates the victim's statement. 3. The extraction record and forensic evidence examination and appraisal certificate prove that the human blood type on the towel quilt of the commercial bath extracted from the victim is the same as the victim's blood type, and both are O type. 4. Witness He Mou's testimony proved that when Wang Mengjun and the victim took a bath, the woman was reluctant to wash the single room, saying: "I am not married yet." The fact that the man caught the woman in the single room.
Jurisprudence:
On the basis of the public prosecution's allegations, the original judgment confirmed that Wang Mengjun constituted the crime of rape on the basis of evidence such as the victim's statement, witness testimony, extraction record, forensic evidence examination and appraisal certificate, and so on. After review, Wang Mengjun never made a confession of guilt in this case, and in addition to the statement of the victim Tian Mou, there was no other evidence to prove that Wang Mengjun committed rape, and the evidence in the case was doubtful and could not be reasonably excluded. First, the acquisition of physical evidence is not standardized. In this case, the only physical evidence commercial bath towel was not directly extracted by the case-handling personnel from the scene of the crime, but by the victim Tian X and witness Fan X on their own to the scene of the crime the next morning, and after the extraction, it was not immediately handed over to the case-handling personnel, but the commercial bath towel was handed over to the case-handling personnel after the case was reported in the afternoon, and the possibility of the physical evidence inspection material being falsified or contaminated could not be ruled out. Second, the proof of forensic evidence examination and appraisal is not strong. The test materials based on the laboratory are Tian's blood, Tian's pants, and commercial bath towel quilt, and the test results are that Tian's pants and commercial bath towels have not been detected with sperm spots, and the blood type of the person on the commercial bath towel and the blood type of the victim Tian are O. Since the commercial bath is a public place, in the absence of DNA identification to identify the blood stains on the towel and the corresponding test materials of the victim Tian Mou, it cannot be concluded that the blood stains on the towel are left by the victim Tian Mou just because the blood types of the two are the same, let alone prove that it is caused by Wang Mengjun's rape. Third, although the testimony of witness He X can prove that when Wang Mengjun and the victim Tian X went to the bathroom to take a bath, Tian X expressed his reluctance to wash the single room for men and women, but it could not prove that Wang Mengjun used violent means to force Tian X into the single bathroom. Fourth, although the testimony of witness Fan X proves that he heard the victim Tian X say that he was raped by Wang Mengjun, the testimony belongs to the evidence transmitted, and the content about the rape was relayed to him afterwards by the victim Tian X, Fan X was not at the scene of the crime at the time, and the content of the proof was not directly perceived by himself, so the testimony could not prove the process of rape of the victim Tian X. In summary, the evidence on which the original judgment was based did not form a complete organic link and mutually corroborating chain of evidence, did not meet the statutory standard of proof with credible and sufficient evidence, and could not rule out reasonable doubts to draw the only conclusion that Wang Mengjun committed rape.
The court held that: The original first, second- and second-instance trial judgments found that the facts of the original trial defendant Wang Mengjun committing rape were unclear, the evidence was insufficient, and the alleged crime could not be established, and the sentence should be changed and corrected in accordance with law. The opinion put forward by defendant Wang Mengjun and his defender in the original trial that the verdict should be changed to not be acquitted is to be adopted.
Case 5: Zhao Bao and Lü Qian's fraud case
Case No.: Inner Mongolia Hohhot Intermediate People's Court (2017) Nei 01 Xing Chu No. 43 First Instance Criminal Judgment
The Hohhot Municipal People's Procuratorate alleged that between May 2013 and May 13, 2015, defendant Zhao Bao, on the grounds that he needed capital turnover and returned on high interest, privately produced the resolutions of the company's shareholders' meeting, power of attorney, payment power of attorney and other documents on the grounds that he knew that he did not have the right to dispose of commercial housing in Xintai Daguan Community of Hohhot Daxintai Real Estate Development Co., Ltd. (hereinafter referred to as Daxintai Company). Together with defendant Lü Qian, he signed (online signatures and hand-signed) contracts for the sale and purchase of commercial housing in Xintai Daguan Community with others by making and stamping the company seals that were embezzled and privately engraved, and used the houses under the contract as collateral to defraud many people of money in the form of loans, and the above-mentioned fraudulent loans were all entered into the company and personal accounts of defendant Zhao Bao in Dalat Banner and used for his personal expenses. During the period, defendant Zhao Bao also instructed defendant Lu Qian to delete or terminate the contract for the sale and purchase of commercial housing signed online, the specific facts are as follows:
1. From May 13, 2013 to December 12, 2014, defendant Zhao Bao defrauded the company of a total of RMB9.24 million through Cai Moumou, the manager of Shanghai Jingfan Investment and Development Co., Ltd.
2. From December 25, 2013 to January 22, 2014, defendant Zhao Bao defrauded Zhang Mou1 and his Inner Mongolia Tokto County Chengqing Trading Co., Ltd. with a total amount of more than RMB15.62 million.
3. From December 13, 2013 to February 28, 2014, defendant Zhao Bao defrauded Ye xxx and his affiliated Hainan Qiansu Weishi Investment Management Co., Ltd. through Cai xxx, totaling RMB16.23 million.
4. From May 9, 2014 to May 11, 2014, defendant Zhao Bao defrauded Liu Mou1 and his Hohhot Guanghan Hotel Management Co., Ltd. with a total amount of RMB20,728,764.
5. In December 2014, defendant Zhao Bao defrauded Hohhot Yongtailong Microfinance Co., Ltd. of a total of more than RMB1.01 million.
6. From February 13, 2015 to February 15, 2015, defendant Zhao Bao defrauded a certain amount of money totaling RMB1.72 million.
7. On January 28, 2013, defendant Zhao Bao borrowed RMB 9 million from Ma Mou1 (financial director of Inner Mongolia Dalat Banner Wantong Real Estate Company) in the name of his younger brother Zhao X 1 and sister-in-law Wu X, and defendant Zhao Bao used all his commercial houses located in Zhongkai Yayuan in Dalat Banner as collateral for the loan, and in January 2014, defendant Zhao Bao proposed that the commercial house mortgaged by Zhongkai Yayuan needed to be unmortgaged due to his company's docking with the bank and other reasons. At the same time, Zhao Bao falsely claimed that he had the right to dispose of the commercial housing of Xintai Daguan Community and could use the commercial housing of Xintai Daguan for mortgage. On January 6, 2014, defendant Zhao Bao instructed defendant Lu Qian to sign a contract for the sale and purchase of commercial housing in Xintai Daguan Community with Dalat Banner Wantong Real Estate Company by making and affixing the seal of Daxintai Company as collateral for the loan.
This court comprehensively evaluates the following evidence presented by the public prosecution organs as follows:
1. Regarding the false testimony of witnesses Shi xxx, Yang xx1, Gao xx1, and Yang xx3 about the resolution of the shareholders' meeting on June 5, 2014, this court believes that witnesses Shi xxx and Yang xx 1 are shareholders of Daxintai Company, and have a direct interest in the case, and their testimony cannot separately determine the facts of the case; witnesses Gao X1 and Yang xx 3 are employees of Daxintai Company, and the subordinate affiliation between the two and Shi xxx and Yang xx1 may affect the authenticity of their testimony. Therefore, the testimony of the above four witnesses cannot be reinforced by each other and the resolution of the Shareholders' Meeting of 5 June 2014 signed and confirmed by the shareholders is found to be false, and the Court does not accept the above evidence.
2. Regarding the minutes of the meeting, because the evidence is a photocopy and has a large number of sandwich pages, and the original has not been retrieved in the case, it is impossible to verify its authenticity, so this court will not accept it.
3. Regarding the evidence used to prove the assets and liabilities of companies and individuals owned or actually operated by Zhao Bao, this court believes that whether zhao bao's mortgage borrowing behavior constitutes a crime is directly related to the authenticity and validity of the collateral and the value of Zhao Bao's shares, and has nothing to do with Zhao Bao's other assets and liabilities, so the above evidence is not accepted.
4. Regarding the forensic appraisal report, since the report did not assess the total asset status of Daxintai Company, but only audited based on the company's book assets, the Court held that the appraisal opinion on the value of Zhao Bao's shares derived from this was not objective and therefore not accepted.
This court held that the facts of the public prosecution's accusation that defendants Zhao Bao and Lü Qian committed fraud were unclear and the evidence was insufficient, and the charges charged could not be established, and this court did not support them. Here's why:
First, the resolution of the shareholders' meeting of Daxintai Company on June 5, 2014, signed and confirmed by the shareholders Shi X, Yang X1 and Zhao Bao, should be regarded as the approval of the content of the resolution by the three shareholders, and Zhao Bao accordingly obtained the right to mortgage the company's real estate within the scope of 35% of the shares; the mortgage borrowing behavior implemented by Zhao Bao occurred between 2013 and May 2015, so in May 2015, Zhao Bao reached a consensus with the shareholders of the company due to arrears and other circumstances, and pledged 24% of the company's holdings. The fact of the shares does not affect the validity of the above-mentioned shareholders' meeting resolution, so the accusation that the public prosecution organ used the method of concealing that he did not have the right to dispose of the company's real estate to commit fraud cannot be established.
Second, in the fraud crime of mortgage loan type, the main reason for the lender's loan is that both parties have applied for mortgage guarantees, and the purpose of the loan and the borrower's repayment ability are not the main reasons for the lender's loan, so the authenticity and effectiveness of the collateral as a loan protection are directly related to whether the borrower has the purpose of illegally possessing the loan. In this case, Zhao Bao mortgaged the real commercial housing in Xintai Daguan Community developed by Daxintai Company in the form of a contract for the sale and purchase of commercial housing signed by hand or online from Shanghai Jingfan Company and other companies and individuals, and obtained the authority to dispose of the company's assets within a certain range during the mortgage loan, which can be determined that Zhao Bao's mortgaged commercial housing has authenticity; and the validity of the mortgaged commercial housing is limited by the scope of the company's authorization, and the company's authorization scope is the scope of 35% of the shares held by Zhao Bao. Therefore, the validity of the mortgage act should be determined in conjunction with the value of the shares held by Zhao Bao, but among the evidence of the prosecution organ, there is only one judicial appraisal report proving the value of the shares, and the report has not been accepted by this court because it is not objective, so the public prosecution organ has no ability to repay Zhao Bao, and the accusation of having the purpose of illegal possession cannot be established due to insufficient evidence.
Third, although Zhao Bao's acts of privately producing power of attorney, payment power of attorney, and using privately engraved official seals were not approved by Daxintai Company, the purpose of concealing the truth was to promote the realization of mortgage loans, and the above acts did not affect the realization of mortgage rights, and it could not be found that Zhao Bao used the above means to defraud property, so the public prosecution organ's accusation that Zhao Bao had taken the method of privately making a power of attorney, a power of attorney for payment, and embezzling and privately engraving official seals to defraud the property could not be established.
Fourth, Zhao Bao returned most of the loan principal of Guanghan Hotel and Shanghai Jingfan Company, and completed the deletion of more than 30 sets of online commercial housing sales contracts with the cooperation of Guanghan Hotel, and the situation that the commercial housing mortgaged to Shanghai Jingfan Company was deleted and the online signing contract did not rule out the possibility of Zhao Bao repaying or Daxintai Company replacing the online signature UK key after deleting it, and there was no evidence in the case to confirm that Lü Qian, under the direction of Zhao Bao, carried out the deletion of the contract for the sale and purchase of commercial housing signed online except for Guanghan Hotel and Shanghai Jingfan Company. Therefore, the accusation that the public prosecution organ used the means of terminating or deleting the contract for the sale and purchase of commercial housing signed online that had been mortgaged by the public prosecution organ to commit fraud cannot be established.
Fifth, although there was a situation of double mortgage commercial housing when Zhao Bao made mortgage loans to Zhang X1, Yu X, Shanghai Jingfan Company, and Guanghan Hotel, because the sum of the loans borrowed by Zhao Bao did not exceed the market price of the double mortgaged commercial housing, the repeated mortgage behavior should be regarded as normal mortgage behavior; for the mortgage behavior that exceeded the market price of the double mortgage commercial housing, because the corresponding loan amount of the double mortgaged commercial house and Zhao Bao's ability to repay were unclear and insufficient evidence, Therefore, the public prosecution's accusation that Zhao Bao used duplicate mortgages to commit fraud cannot be established.
Sixth, defendant Lü Qian's act of affixing the company seal and handling the procedures related to the contract for the sale and purchase of commercial housing to help defendant Zhao Bao mortgage the loan was carried out under the direction of Zhao Bao, and because the accusation that the public prosecution organ had made Zhao Bao the crime of fraud could not be established, the accusation that Lü Qian constituted the crime of fraud could not be established.
Regarding the defense and defense opinion that Zhao Bao's mortgage act proposed by the second defendant and his defender was authorized by the company, and that neither Zhao Bao nor Lü Qian constituted the crime of fraud, this court adopted it after investigation.
Case 6: Kang Peng's crime of arson
Case No.: Hubei Wuhan Intermediate People's Court (2017) E01 Xing zhong No. 1043 second-instance criminal judgment
At about 12:00 noon on January 21, 2015, a fire broke out at the residence of appellant Kang Peng at No. 4, 1st Floor, No. 4-4 Yinong Street, Qiaokou District, Wuhan City. After identification, the burned items were worth 230 yuan. The public security organs arrested the appellant Kang Peng on the same day.
The determination of the above facts is confirmed by evidence such as the arrest process, the process of cracking the case, the appraisal opinion on the price of the goods, the on-site test report (urine test), the decision on compulsory isolation and detoxification, and other evidence that have been presented and cross-examined at trial, and verified that it is true, and this court confirms it.
With regard to the appellant Kang Peng's grounds for appeal, his defender's defense opinion, and the wuhan municipal people's procuratorate's opinion on appearing in court, this court made the following judgment:
1． About documentary evidence
(1) A description of the situation issued by the fire department about the photos of the scene. After investigation, Article 29 of the Provisions on the Investigation of Fire Accidents of the Ministry of Public Security stipulates that the fire fighting organs of public security organs shall promptly make a determination of the cause of the fire on the basis of on-site investigation, investigation and inquiry, relevant inspections and appraisal opinions. The above-mentioned explanation of the situation is not the determination of the cause of the fire made by the fire department of the public security organ in accordance with the statutory procedures, and the conclusion that "the cause of the fire cannot be excluded from the possibility of artificial ignition" is not enough to confirm the specific cause of the fire in this case.
(2) Criminal investigation photos, scene floor plans, and scene photos. Upon investigation, the criminal investigation photograph accepted in the original judgment was signed only by one case-handling personnel and had no witness signature; the site floor plan did not have the signatures of the people participating in the investigation and witnesses; and the scene photos did not have the signatures of the case-handling personnel and witnesses. Article 210 of the Provisions of the Ministry of Public Security on procedures for public security organs in handling criminal cases stipulates that public security organs shall conduct an investigation of the scene of a case with no less than two persons; article 211 stipulates that when investigating a scene, a photograph of the scene shall be taken, a map of the scene shall be drawn, and a record shall be made, and the person participating in the investigation and the witnesses shall sign it. According to the above provisions, the above-mentioned evidence collection procedures are not standardized, and the investigating organs have not corrected or made reasonable explanations, and there are flaws.
(3) The ninth piece of evidence accepted in the original judgment, the "Fire Scene Test Report", after investigation, the original file did not attach this evidence, and the first-instance trial did not present and cross-examine the evidence, and after the second-instance investigation and verification, there was indeed no such evidence in this case.
2． On witness testimony
(1) Testimony of witness Chen Mou1. After investigation, Chen Mou1's testimony was collected by the public security organs 9 months after the occurrence of the case, and the time from the occurrence of the case was long, and there were contradictions in his three testimonies about the time of the fire, the state of Kang Peng at the scene at the time of the fire, and his own prescription at the time of the fire, and the content of his testimony could neither directly prove nor confirm that Kang Peng had committed the arson act.
(2) Testimony of witnesses Zeng X (Kang Peng's mother) and Zhang X 1 (Kang Peng's neighbor). After investigation, according to the second paragraph of article 75 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China, the speculative, critical, or inferred testimony of witnesses cannot be used as evidence. Zeng Mou was not an eyewitness, did not witness the situation at the time of the fire, and his testimony about "I don't know how the fire was burned, but I just heard the discussion of others and thought it was my son who set the fire" and "I didn't see Kang Peng ignite the fire, but I knew in my heart that he ordered it" The testimony is speculative testimony and cannot be used as evidence according to law. Zhang Mou1's testimony shows that he was "listening to Zeng's speech, it was Kang Peng himself who lit the fire at home", which is anecdotal evidence, and the statement is derived from Zeng's inference, and cannot be used as evidence according to law.
(3) Testimony of witness Zhang Mou2 (kang peng's household registration police). After investigation, the evidence was the testimony of Zhang Mou2 in the first instance trial, but the court of first instance did not verify the identity of the witness in accordance with the law, nor did it inform the witness of his rights, obligations and legal responsibilities to testify. At the same time, Zhang Mou2's testimony only proves that he educated Kang Peng in front of Zeng's booth on the morning of the crime, which can neither directly prove nor confirm that Kang Peng committed the arson act.
3． With regard to the confession of the accused
(1) Defendant Kang Peng's transcript of the Gutian Police Station of the Qiaokou District Bureau of the Wuhan Municipal Public Security Bureau on January 21, 2015, including an audio and video recording of the simultaneous interrogation. After investigation, the record has the following problems: First, the record records that the interrogators were "Liu X" and "Yao X", but the synchronous audio and video recording showed that three people participated in the interrogation. After the second review and investigation, the public security organs could only confirm that one of them was Zhang Mou2, a household registration police officer in Kang Peng's place of residence, and did not explain the identities of the other two. Second, the record records the criminal facts of Kang Peng's confession of arson, but kang Peng's corresponding confession is not seen in the audio and video recording of the synchronous interrogation, and the content of the record and the content of the synchronous audio and video recording are inconsistent. Third, the record was obtained by the public security organs from Kang Peng before the case was filed and investigated, but it was not converted according to law after the criminal case was filed, and cannot be used as criminal evidence.
(2) Defendant Kang Peng's confession at the Qiaokou District Detention Center in Wuhan City on March 10, 2015, was not recorded or recorded from simultaneous interrogation. After investigation, kang peng did not confess to committing intentional arson in the record, and the record had the following problems: First, the record was the first interrogation of Kang Peng by the public security organs after the criminal case was filed, and the record did not record the content of informing the interrogated person that he had the right to retain a defender and other procedural rights. Second, the record shows that the investigators questioned Kang Peng in accordance with the provisions of the public security organs' procedures for handling administrative cases, not in accordance with criminal procedures. In this regard, the public security organs have not corrected or made reasonable explanations.
(3) Defendant Kang Peng's confession at the Qiaokou District Detention Center in Wuhan City on March 20, 2015, was not recorded or recorded at the same time. After investigation, in the record, Kang Peng did not confess that he had deliberately set fire to it.
In addition, the original judgment found that "after the summary investigation of the fire accident, the area of the fire was 30 square meters". Upon investigation, there is no relevant evidence to prove this fact.
In summary, although there is documentary evidence, witness testimony, defendant's confession, and appraisal opinions on the price of goods in this case, it has not been able to form a chain. At the same time, as mentioned above, there are procedural problems in the collection of key evidence such as relevant documentary evidence and defendants' confessions, which affects their evidentiary capabilities and makes them unable to be used as evidence. The testimony of witnesses Zeng X and Zhang X1 could not be used as evidence, and Kang Peng did not confess that he had committed the arson act. Other evidence can neither directly prove nor corroborate that Kang Peng committed the arson. Therefore, based on the evidence in the case, it cannot be confirmed that Kang Peng deliberately committed the act of arson. The existing evidence presented by the appellant Kang Peng's defender cannot prove that Kang Peng's defense opinion that he committed the act of arson is established. The Wuhan Municipal People's Procuratorate's opinion that the facts determined in the first-instance judgment contradicted the conviction and sentencing, and that the public security organs' first interrogation of Kang Peng could not be used as evidence, were established, but their opinions supporting the original public prosecution organ's allegations could not be established.
This court held that the evidence in the original judgment that found the appellant Kang Peng guilty of arson was insufficient, and Kang Peng should be declared innocent in accordance with law. The court of first instance found that Kang Peng had committed the crime of arson improperly, and this court corrected it. The appellant Kang Peng and his defender's request for acquittal was adopted by this court.
This article is partially reproduced by ding Guangzhou's lawyer team members in the "Eleven Key Points and Points of Defense of Witness Testimony" | 4533 Results of The Second Study of Acquittal Cases. Ding Guangzhou's legal team has a relatively fixed member of eight lawyers, most of whom have experience in the front-line work of the Public Prosecution Law, and the "Forty Years of the Opening of the People's Courts" issued by the General Office of the Supreme People's Court has four major criminal cases in Shenzhen, and the team members have participated in three.