1. Collection of basic case information

Case Type: Lawyer Litigation Cases

Court judgment date: October 18, 2013 .

Court name: Ningbo Haishu District People's Court

Defense attorney's name: Xu Hong

Law firm name: Zhejiang Boning Law Firm

Contribution (real name, unit + name):

Review (real name, level by level):

Search subject terms: criminal proceedings robbery crime of illegal detention evidence defense

2. Collection of case text

Shen Moumou accused of robbery with huge amount of illegal detention

【Introduction to the case】

From the end of 2012 to the beginning of 2013, the defendant Shen Moumou needed funds for the purchase of a cold storage, and agreed with Wang Yi, who owed him 14 million yuan, to borrow a promissory note mortgage from others, and part of the funds obtained from the financing was delivered to Shen Moumou. use. Later, Wang Yi entrusted Bao Moumou to help him mortgage a promissory note of US$2.5 million to borrow 15 million yuan, of which 8 million yuan was used by Shen Moumou and Wang Yi. On February 8, 2013, Wen Moumou, entrusted by Bao Moumou, mortgaged the promissory note to borrow 7 million yuan from Wang Bing, and then used 540 yuan to repay the money owed to others, and retained 700,000 yuan and then used the remaining 900,000 yuan. To Bao Moumou, Bao only remitted 500,000 yuan of it to Shen Moumou. Suspected that he had been deceived, Shen Moumou, along with Xie Moumou, Zou Moumou, Jiang Moumou and others, slapped, beat, threatened Bao Moumou with a knife in a hotel room at 3:00 p.m. that day, and robbed Bao Moumou. Bao Moumou had 200,000 yuan in his bank card and asked him to write down an IOU for Shen Moumou's 7.2 million yuan. At 17:00 that day, Bao Moumou was freed.

At the end of February and early March 2013, after Shen Moumou and others were arrested and brought to justice, Wang Yi still used the $2.5 million promissory note as collateral, and borrowed 1.1 million yuan from the people through Bao Moumou and others from Wang Bing.

On February 17, 2013, Shen Moumou and others were criminally detained by the public security organs on suspicion of robbery. They were arrested in accordance with the law on March 25 of the same year. Later, the public security organs transferred the suspected robbery to the procuratorate for review and prosecution. In July of the same year On the 23rd, the procuratorial organ charged the defendant Shen Moumou and others with the crime of robbery, and the amount was huge, and prosecuted the case to the people's court.

The defense lawyer put forward the defense opinion that the defendant Shen Moumou did not have the purpose of illegal possession subjectively and did not constitute the crime of robbery when he committed the behavior involved in the case. The court of first instance accepted the above defense opinions and sentenced the defendant Shen Moumou to be guilty of illegal detention and sentenced to one year and two months in prison. The first-instance judgment takes effect.

【Defense opinion】

The defense lawyer believes that the basic facts of the case alleged in the indictment are incomplete, and some of the facts are not objective. When writing the 7.2 million yuan IOU and other acts involved in the case, there is no subjective purpose of illegal possession, and there is insufficient evidence to accuse him of robbery.

First of all, the defender believes that by synthesizing all the evidence in this case, the following basic facts can be determined:

(1) Wang Yi owes Shen Moumou RMB 14 million. The two and their respective companies are in a cooperative relationship to jointly invest in a cold storage project in Zhoushan.

The above facts include the defenses and confessions of the defendants Shen Moumou and Zou Moumou, the testimony of witnesses Wang Yi and Li Mou and the documentary evidence "Investment Cooperation Agreement" (signed by Wang Yi and his company's seal), provided by Shen Moumou's relatives. The IOU issued by Wang Yi and the letter of commitment issued by Wang Yi's wife can be confirmed.

(2) A company in Zhoushan run by the defendant Shen Moumou urgently needed 14 million yuan of funds to purchase a cold storage that a court planned to auction. And because Wang Yi owes Shen Moumou 14 million yuan, the two have personal creditor-debt relationship and the investment cooperation relationship of their respective responsible companies, so they use various methods to raise funds for Shen Moumou's acquisition of cold storage (including introducing Shen Moumou) He also promised to provide Shen Moumou with 6 million yuan of the 8 million yuan of the 2.5 million US dollar mortgage financing he borrowed from Huangshan through Yu Moumou. The operating company pays for the purchase of cold storage.

The above facts include the confessions of the defendants Shen Moumou, Zou Moumou and Xie Moumou, the testimony of the witnesses Yu Moumou and Wang Yi, and the documentary evidence of the US dollar promissory note, and the loan promissory note issued by Shen Moumou on behalf of a company in Zhoushan. Wait for evidence to confirm. Although Wang Yi testified to the investigation agency, he said that he borrowed the US$2.5 million promissory note from Yu Moumou to solve the financial difficulties of a company in Tongling that he was responsible for, not for Shen Moumou's company. However, this statement is obviously inconsistent with the testimony of Wang Yi when the two defenders of Shen Moumou's investigation stage collected evidence from Wang Yi (with audio recordings to confirm), and should not be accepted.

(3) According to the existing evidence, it can be determined that the victim Bao Moumou and the outsider Wen Moumou, in order to earn the interests of the illegal intermediary and repay their huge debts without sufficient financing assurance, adopted the first commitment to pay a term of 2.5 million US dollars. As a mortgage, it was possible to borrow 15 million yuan to defraud Wang Yi and others to voluntarily deliver a promissory note of 2.5 million US dollars to Bao Moumou for financing. As a result, the promissory note only borrowed 7 million yuan and was repaid with priority. Wen Moumou's personal debt of 5.4 million yuan was occupied by Bao Moumou and Wen Moumou with a total of 1.1 million yuan, and only 500,000 yuan was delivered to Shen Moumou designated by Wang Yi for use. Fraud and dishonesty were the first acts.

The above facts are confirmed by the statement of the victim Bao Moumou and the testimony of witnesses Wang Yi, Yu Moumou, and Wen Moumou.

(4) According to the existing evidence, when the defendant Shen Moumou and others carried out slight violence against Bao Moumou, it was not for the purpose of robbing Bao Moumou's legal property, but because Bao Moumou continued to fabricate lies during the conversation, causing anger Shen Moumou and others were angry, and out of anger, Shen Moumou slapped him first, and the others followed and carried out mild violence.

The evidence to prove the above facts, in addition to the confessions and defenses of several defendants such as Shen Moumou, the multiple testimonies of witness Wang Yi can also confirm that the reason why Shen Moumou and others committed violence against Bao Moumou is that Bao Moumou lied only. Borrowing 500,000 yuan, and even after discovering several remittance vouchers ranging from hundreds of thousands of transfers on the same day, he was still arguing, which angered Shen Moumou and others.

(5) According to the existing evidence, it is sufficient to determine that the defendant Shen Moumou obtained 200,000 yuan from Bao Moumou, not for the purpose of occupying Bao Moumou’s legal property, but for Bao Moumou’s should not have more possession. When Shen Moumou demanded the 200,000 yuan from Bao Moumou for the financing funds used by Shen Moumou approved by Wang Yi, Wang Yi who was present did not object.

In addition to the confessions and defenses of the defendants Shen Moumou, Zou Moumou, Jiang Moumou, Xie Moumou, etc., the above facts are confirmed by the statement of the victim Bao Moumou and the testimony of the witness Wang Yi.

(6) According to the existing evidence, it can be proved that the reason why the defendant Shen asked Bao to write an IOU was that Bao promised to continue financing 7.2 million yuan as originally promised after the Spring Festival, and the IOU written by Shen was only a guarantee. effect. And in the process, Wang Yi did not object, and it should be regarded as his approval of letting Bao Moumou write an IOU to be responsible for continuing financing.

For the above facts, there are the statement of the victim Bao Moumou and the confession of the defendant Xie Moumou to prove it. Moreover, according to the statements and testimonies made by Bao Moumou, Wen Moumou and others during the supplementary investigation stage, in March 2013 after the incident, Wang Yi asked Bao Moumou and others for 1.1 million yuan in financing. It can also prove the reasonableness of the above defense of the defendant Shen Moumou.

Secondly, based on the above basic facts and evidence, the defender believes that the existing evidence is not enough to determine that the defendant Shen Moumou participated in the beating of Bao Moumou, and instructed others to transfer 200,000 yuan from Bao Moumou's card, and asked Bao Moumou to pay The act of issuing an IOU of 7.2 million yuan is a robbery crime that uses violent means to forcibly rob others of a huge amount of property for the purpose of illegal possession.

Specific reasons:

1. There is sufficient evidence to prove that Wang Yi promised to Shen Moumou that he would deliver most of the funds raised by the mortgage of US$2.5 million to Shen Moumou to acquire the cold storage. Shen Moumou has subjective reasons to believe that Wang Yi passed Bao Moumou. Funds from an introduction financing should be used first.

2. There is relatively solid evidence to prove that the victims Bao Moumou, Wen Moumou and others, in order to satisfy their own economic interests and infringe on the interests of the financing client, had faults or illegal or criminal acts first, and Shen Moumou and others were outraged. And the justification for violence against Bao Moumou can be established.

3. According to the existing evidence, it should be determined that the 200,000 yuan Shen obtained from Bao and the 7.2 million yuan IOU he wrote down were the financing funds that should have been delivered to the financing entrusting party according to the agreement. The prior commitment to Shen Mou, which was obtained directly from Bao Mou and approved by Wang Yi who was present, should not be considered illegal possession.

To sum up, the defense lawyer believes that the existing evidence is not enough to prove that the defendant Shen Moumou intentionally possessed illegally, and the evidence that his behavior constitutes the crime of robbery is insufficient.

【Judgment Result】

The court convicted the defendant, Shen Moumou, for the crime of illegal detention and sentenced him to one year and two months in prison.

【Judgment Document】

The court held that the defendants Shen Moumou, Xie Moumou, Jiang Moumou, and Zou Moumou partnered with others and illegally restricted the personal freedom of others due to debt disputes. Their actions constituted the crime of illegal detention and were a joint crime. During the detention process, there was beating, and all four defendants should be severely punished. The public prosecution charged the defendants Xie Moumou and Jiang Moumou guilty. Regarding the characterization of the actions of the defendants Shen Moumou and Zou Moumou in this case, the focus of the dispute between the prosecution and the defense is whether the defendant Shen Moumou has the subjective intention of illegal possession. First of all, it is a fact that the defendant Shen Moumou needs funds to buy a cold storage, and it is also a fact that Wang Yi owes Shen Moumou 14 million yuan. Shen Moumou confessed that he obtained a promissory note amounting to 4 million US dollars from Yu Mou through Wang Yi, in order to mortgage the promissory note and borrow money. He went to Shenzhen again and asked Yu Moumou to help open a promissory note of the same nature, and Wang Yi contacted Bao Moumou and others to mortgage the loan. The proceeds from the loan were regarded as Wang Yi's repayment of Shen Moumou's arrears, so that Shen Moumou had funds to buy it. Cold storage, which was confirmed by the confession of the defendant Zou Moumou and the testimony of the witness Li Mou, and Wang Yi also stated that Shen Moumou and Zou Moumou were by his side, forcing him to pay back the money. After Wang Yi, Shen Moumou and others arrived in Shenzhen, they asked Yu Moumou to help them open a US dollar promissory note because a company in Tongling needed to invest, which had nothing to do with Shen Moumou. According to Wang Yi's statement, there is no need for Shen Moumou and others to go to Shenzhen; and the parent company of a Tongling company represented by Yu Moumou is a holding group company of which Yu Moumou is the legal representative, and Yu Moumou is its leader. Then it is unreasonable for Wang Yi to issue a US dollar promissory note through Yu Moumou to solve the company's capital needs; Wang Yi also failed to state the specific use of 15 million yuan. On the contrary, after only being able to borrow 500,000 yuan, Wang Yi also He failed to show due anxiety and anxiety that the investment funds could not be realized; and issued a promissory note of 2.5 million US dollars to obtain a mortgage of 15 million yuan. The amount of funds required is relatively consistent. To sum up, the defendant Shen Moumou's statement on the source and use of the US$2.5 million promissory note is more in line with objective facts. Therefore, Shen Moumou's claim to the loan item secured by the US dollar promissory note does not have any intention of illegal possession. Secondly, as Wang Yi said, Shen Moumou learned that he obtained a US dollar promissory note that could be used as a mortgage loan, so take a step back, even if the promissory note has nothing to do with Shen Moumou, and Shen Moumou has nothing to do with Wang Yi There is a creditor-debt relationship. He believes that Bao Moumou and others deceived him, so he asked Bao Moumou, who handled the loan, for the loan item on behalf of Wang Yi, so as to realize his creditor's right to Wang Yi, and it could not prove that Shen Moumou had illegal possession of the loan. deliberately. Third, on February 8, 2013, the defendant Shen Moumou received 500,000 yuan remitted by Bao Moumou according to Wang Yi's instructions, and Bao Moumou's bank card transaction details showed that the 500,000 yuan was different from that from Bao Moumou later. The 200,000 yuan debited from the XX card all came from the mortgage loan of the US dollar promissory note. Bao Moumou also admitted the source of the money at the scene. Bao Moumou and others did conceal the amount of the loan from him, and intercepted them from it layer by layer. , infringing on Shen Moumou's due amount, it is justifiable and well-founded for Bao Moumou to write down an IOU of 7.2 million yuan, and it is also under the circumstance that Bao Moumou promises to continue to borrow money for him after the Spring Festival, and it is out of guarantee. XX wrote an IOU, and the amount on the IOU was the same as the previous 500,000 yuan and 200,000 yuan; Wang Yi also borrowed another 1.1 million yuan through Bao XX after the incident, using the promissory note. It means that Shen Moumou allowed Bao Moumou to write down part of the amount in the IOU to be realized. Therefore, there is insufficient evidence to accuse the defendants Shen Moumou and Zou Moumou of the purpose of illegal possession, and the actions of the two defendants do not constitute a crime of robbery. The defense and defense opinions put forward by defendants Shen Moumou, Zou Moumou and their defenders shall be accepted. The court sentenced the defendant Shen Moumou to be guilty of illegal detention and sentenced to one year and two months in prison; the other three defendants were also sentenced to ten months to one year in prison for the same crime.