1. Collection of basic case information

Case Type: Lawyer Litigation Cases

Business Type: Criminal Litigation Defense

Court decision time: December 10, 2015

Court name: Suzhou Intermediate People's Court

Defense attorney's name: Zhang Jian .

Law firm name: Zhejiang Boning Law Firm .

Contributed:

Review (real name, level by level):

Search subject terms: criminal proceedings, revocation of parole, exemption from criminal punishment

2. Collection of case text

The case of a smuggling executive in a Suzhou company who was accused of revoking his parole in the previous case and punished for several crimes was exempted from criminal punishment

【Introduction to the case】

In mid-February 2011, a company in Suzhou (hereinafter referred to as the "defendant unit") was suspected of smuggling solid waste and was investigated by the Ningbo investigation authority where the goods were imported. The company's legal representative, Xiao Yang, explained the investigation at the first interrogation The agency did not know the fact that its company was suspected of underreporting the price of some imported goods and evaded the import tax. Later, in the continued investigation of the Ningbo investigation agency, it explained in detail the underreported price and evaded the import tax. specific smuggling facts.

In early March of the same year, Lao Yang, the father of Xiao Yang, the actual person in charge and legal representative of the defendant unit, surrendered himself to the Suzhou investigation authority, confessing that the company he led was suspected of underreporting the price of some imported goods and smuggling the import tax, and was arrested. Bail pending trial. The Suzhou investigation agency opened a case for investigation of the suspected common crime of smuggling, and found out the basic facts of the case. More than 300,000 yuan in taxes on evasion of imports.

On June 10, 2011, the Suzhou investigation agency informed the defendant unit and its actual person in charge Lao Yang of the conclusion of the appraisal of the "Certificate of Customs Approval for Suspected Smuggled Goods and Items Evasion of Taxes"; on the same day, the Suzhou investigation agency concluded the investigation. In view of the fact that the defendant unit had been filed for investigation by the Ningbo investigation agency for the crime of smuggling solid waste, the case was transferred to the Ningbo investigation agency on July 6; and the previous month, the Ningbo investigation agency had already transferred the defendant unit to the crime of smuggling solid waste. It was transferred to the Ningbo Municipal People's Procuratorate for review and prosecution.

After the Ningbo investigation agency accepted the case, it further investigated the relevant facts of the case: Xiao Yang was interrogated in detail on the specific facts of the case, and Xiao Yang made an honest account; the documentary evidence proving the fact of tax evasion was also investigated and verified; On September 7, when Lao Yang, the actual person in charge of the defendant unit, had been released on bail pending trial by the Suzhou investigation agency, the Ningbo investigation agency again took compulsory measures to release him on bail pending trial for the crime of smuggling waste, and interrogated him. Inform the Suzhou Investigation Authority of the fact that the case was transferred to the Ningbo Investigation Authority.

However, after the Ningbo investigation agency completed the investigation of the defendant unit’s smuggling of solid waste and transferred it to the Ningbo Municipal People’s Procuratorate for review and prosecution on one charge of the crime, the defendant unit underreported some imports in this case during the period when the procuratorate returned it twice for supplementary investigation. After the actual investigation was carried out on the relevant facts of the crime of smuggling ordinary goods for evading import taxes, the price of the goods was not dealt with, and the Supplementary Prosecution Opinion was not issued on the facts of the case. On December 27, 2011, the Ningbo Municipal People's Procuratorate prosecuted the defendant for the crime of smuggling solid wastes. Yang was sentenced to six years in prison by the person in charge who was directly responsible for the unit's smuggling of waste; on August 29, 2014, Xiao Yang was sentenced to parole by the Hangzhou Intermediate People's Court of Zhejiang Province.

On September 5, 2012, the Ningbo investigative authority lifted Lao Yang, the actual person in charge of the company who had been released on bail pending further investigation, on the grounds of "expiration of the time limit", and released the compulsory measure of his bail pending further investigation and returned the security deposit.

On August 21, 2014, the Ningbo investigation authority transferred the case back to the Suzhou investigation authority on the grounds that the case (crime of smuggling ordinary goods) was "not under the jurisdiction of my unit". On November 18 of the same year, without any new evidence, the Suzhou investigation agency opened the case again for investigation; on December 11 and 12, the Suzhou investigation agency issued a third bail for Lao Yang, the actual person in charge of the defendant unit. , Xiao Yang, who has been paroled, was also released on bail pending trial, and repeated interrogation of the two, but no new facts of the case were found.

On June 2, 2015, the Suzhou investigation authority informed the legal representative of the company who had been paroled of the conclusion of the appraisal of the Customs Approval Certificate for Suspected Smuggled Goods and Items of Tax Evasion made by a Suzhou Customs on April 25, 2011. Ren Xiaoyang, sent the "Notice of Transferring the Case for Examination and Prosecution" to the defendant unit and Xiao Yang's father and son; on the same day, issued the "Prosecution Opinion" to the public prosecution agency, naming Lao Yang and Xiao Yang as the defendant unit (suspected unit) The directly responsible person in charge and the directly responsible person shall be transferred to the Suzhou Municipal People's Procuratorate for review and prosecution.

After accepting the entrustment, defense lawyer Zhang Jian in this case immediately went to the Suzhou Municipal People's Procuratorate to review and copy the case file materials, communicated his defense opinions with the chief prosecutor, and promptly submitted his written defense opinions to the procuratorate.

On September 11, the Suzhou Municipal People's Procuratorate prosecuted the case to the Suzhou Intermediate People's Court, accusing Lao Yang and Xiao Yang and their sons as the persons in charge directly responsible for the smuggling of the defendant unit, and the defendant unit "should be treated as ordinary smugglers. The defendant and the legal representative of the defendant's unit, Xiao Yang, "during the probation period for parole, found that there were other crimes that were not sentenced before the judgment was announced, ... the parole should be revoked, and several crimes should be punished together."

【Defense opinion】

Attorney Zhang Jian, the defender of this case, launched a full and effective defense during the trial, with two main points:

1. The investigation of this case was completed four years ago. In the absence of new evidence, it is not appropriate to initiate criminal prosecution again.

(1) After the transfer to the Ningbo investigation organ, the Suzhou investigation organ no longer has jurisdiction over this case. According to the relevant provisions of Article 274 of Order No. 127 of the Ministry of Public Security "Procedural Regulations of Public Security Organs for Handling Criminal Cases" (hereinafter referred to as "Procedural Regulations of Public Security Organs"), on June 10, 2011, the Suzhou investigative agency concluded the investigation of this case and considered this case The facts are clear, the evidence is indeed sufficient, the crime was identified correctly, and criminal responsibility should be pursued in accordance with the law, but the final handling was not made, and the "Prosecution Opinion" was not formed. Instead, it was transferred to the Ningbo investigation agency on July 6, which means that it was handed over to Ningbo for investigation. The crime of smuggling solid goods between the organ and the defendant unit shall be dealt with together.

Paragraph 2 of Article 18 of the "Procedural Regulations of Public Security Organs" stipulates that in the case of "one person committing several crimes", the public security organ may jointly investigate the case within the scope of its duties. According to legal theory, the "one person" in "one person commits several crimes" should include the unit that can constitute the crime of unit crime stipulated in the Criminal Law, and the unit can constitute the crime of smuggling ordinary goods. Therefore, the Suzhou investigation agency transferred the case to the Ningbo investigation agency, and the procedure was legal, but it should be deemed that the latter was handed over to the investigation agency for joint investigation. From the date of transfer, the jurisdiction of the case was handed over to the Ningbo investigation agency. Whether the case is correct or not , should be investigated for criminal responsibility, should be the final decision by the Ningbo investigative authority.

(2) After the Ningbo investigation agency combined the case for investigation, it conducted a substantive investigation and grasped all the criminal facts of the case, which should be regarded as the end of the investigation; it did not transfer the case for review and prosecution, and it should be understood that it did not believe that the case should be Criminal prosecution, or if the circumstances are found to be minor, may not be investigated for criminal responsibility.

First of all, after receiving the transfer of the case, the Ningbo investigative agency obtained jurisdiction; after that, a series of investigations were carried out. Combined with its investigation of the company's crime of smuggling solid wastes at the beginning of the case, it was no doubt that it had jurisdiction. If the censored cognition does not belong to its own jurisdiction, according to Article 172 of the "Procedural Regulations of Public Security Organs", it should be immediately transferred to the original competent authority.

Secondly, the Ningbo investigative agency has substantively investigated the case and fully grasped the facts of the case. The Ningbo investigation agency formally accepted the case, and conducted a joint investigation of the case and the company's ongoing solid waste smuggling case. The suspects were interrogated and recorded, and relevant documentary evidence was investigated. Judging from the evidence, the basic evidence that the case was finally prosecuted was the evidence materials transferred by the Ningbo investigation agency back to the Suzhou investigation agency, including the evidence materials that the latter transferred to the Ningbo investigation agency for joint investigation on July 6, 2011. Therefore, it can be determined that the Ningbo investigation agency has all the materials that can be confirmed in this case.

Third, the Ningbo investigation agency did not deal with the case after grasping all the evidential materials, and did not issue a Supplementary Prosecution Opinion. It should be considered that it did not determine that the defendant unit and its person in charge should be criminally prosecuted, or that the circumstances were minor and harmful. Not much, not considered a crime. The reason is: since the Ningbo investigation agency has all the materials for determining the facts of this case, it should be regarded as or should be regarded as the end of the investigation.

According to the "Procedural Regulations of the Public Security Organs", the relevant provisions of Articles 274 to 279, if the Ningbo investigation authority determines that the defendant unit and its responsible person constitute the crime of smuggling ordinary goods, the facts are clear, the evidence is indeed sufficient, the crime is correctly identified, and there are complete legal procedures. , it is absolutely possible and should make a Supplementary Prosecution Opinion; the reason why it did not take the step of transferring it to the procuratorate for review and prosecution, and did not make a Supplementary Prosecution Opinion, from the perspective of the parties and the public (although this case directly involves the public) , but all members of the society have the possibility of committing illegal acts and accepting criminal investigation, and the provisions of the Criminal Procedure Law to protect human rights and legal functions must cover the whole society), should be regarded as or should be regarded as the end of the investigation, and it is determined that the investigation The unit and its person in charge have minor circumstances and little harm, and are not considered to be crimes, otherwise they must be transferred for review and prosecution, but in fact there is no transfer.

To sum up, from the evidence in this case, the Suzhou investigation agency has completed the investigation of this case on June 10, 2011. After the case was transferred and merged, the Ningbo investigation agency has also investigated all the facts of the case through supplementary investigation, and the investigation procedure has actually been terminated.

According to the "Criminal Procedure Law" and "Procedural Regulations of Public Security Organs" and other laws and regulations that regulate the criminal proceedings of public security organs, the conclusion of the investigation must be concluded as to whether the case under investigation constitutes a crime, whether the facts are clear, and whether the evidence is indeed sufficient; yes, If the case is not transferred for review and prosecution, it means that the facts are unclear, the evidence is insufficient, or the conduct involved does not constitute a crime, or the circumstances are minor and the harm is not great, and it is not considered a crime.

(3) This case belongs to a case that should be withdrawn but has not been withdrawn. The Suzhou investigation agency once again opened the case for investigation on November 18, 2014 without any evidence, which violated the relevant provisions of criminal procedure laws and regulations.

The materials in this case were handed over to the Suzhou investigation agency by the Ningbo investigation agency on August 21, 2014, but the reason for the transfer had nothing to do with the defendant unit and its person in charge. The case was sent back to the original investigation agency after a three-year lapse, and none of the reasons were caused by the defendant unit and its responsible persons, Lao Yang and Xiao Yang.

This case has been thoroughly investigated by the second investigation organ, the facts of the case have been ascertained, and the investigation procedure has been terminated, but the criminal procedure has not been continued for more than three years. As far as the public is concerned, it has been equivalent to withdrawing the case. Paragraph 1 of Article 183 of the "Procedural Regulations of the Public Security Organs" stipulates various circumstances in which a case should be dismissed. The circumstances that are suitable for this case should be "the circumstances are obviously minor, the harm is not serious, and it is not considered a crime". According to the amount of tax evasion involving the defendant unit of more than 300,000 yuan, which exceeded the tax evasion amount of 250,000 yuan according to the relevant judicial interpretation at that time, the starting point for criminal responsibility for smuggling ordinary goods was not large, relative to the number of defendant units. In the middle of the year, the proportion of the tax on imported goods according to law is also very small, and it also has the circumstance of surrendering.

In particular, Article 14 of the normative document of the Ministry of Public Security "Several Regulations on the Handling of Economic Crime Cases by Public Security Organs" (Gongtong Zi [2005] No. 101) clearly stipulates: "After a case is filed and investigated, the criminal suspect shall be subject to 12 If the case still cannot be transferred for review and prosecution or otherwise handled in accordance with the law, the public security organ shall withdraw the case.” This normative document is a concrete provision for laws and regulations such as the Criminal Procedure Law and the Procedures for Public Security Organs, which have been formulated for The handling of this case clarifies the legal operating procedures. After accepting the case handed over by the Suzhou investigation agency and conducting further investigation, the Ningbo Investigation Authority released the compulsory measure of release on bail for the defendant Lao Yang, who played a decisive role in the case (he was originally taken on suspicion of smuggling ordinary goods, on September 5, 2012). The compulsory measures to be released on bail pending trial have long since been lifted), and they have not been dealt with, and the case should be dismissed at the latest on September 6, 2013 according to law.

Therefore, this case belongs to the case that should be withdrawn but not withdrawn during the investigation stage. The investigation agency did not cancel the case in the case-handling procedures, so it cannot be denied that the objective results of its handling of the case have constituted the fact that the conditions for canceling the case have been met. There are no specific provisions in my country's criminal procedure law for cases that should be revoked but have not been revoked in the internal procedures of the investigation agency, whether the case can be repeated for investigation. However, for a case that has been withdrawn, the conditions for re-opening the case for investigation are very clear and unique in the law - "If new facts or evidence are discovered, and the criminal facts need to be investigated for criminal responsibility, the case should be re-opened for investigation." (Article 186, Paragraph 1 of the "Procedural Regulations of Public Security Organs").