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BONING CASE

Shen accused of robbery a huge amount of illegal detention cases

Ⅰ. Case basic Information collection

Case Type:Cases of lawyers ' lawsuits                                            Business Type:Criminal defense                            

Time of court decision:October 18, 2013                  

Name of court:Ningbo Haishu District People's Court                

Name of defence counsel:Xu Hong                            

Name of law Firm:Zhejiang boning Law Firm            

Provide by(real name, Unit + names):                       

Peer review (real name, progressive):                           

Retrieving keywords:Criminal Robbery Crime of unlawful detention Evidence Defense  

  Ⅱ.Case Body Collection

  Shen accused of robbery a huge amount of illegal detention cases

  【Case Briefs】

 From the end of 2012 to the beginning of 2013, the defendant Shen Yin purchase of cold storage need funds, and owed its 14 million Yuan Yi agreed to borrow promissory notes mortgage loans, the financing proceeds of a part of the delivery to Shen use. After Yi commissioned the abalone will be a 2.5 million dollar promissory note mortgage loan of 15 million yuan, of which 8 million Yuan Shen and Yi use. February 8, 2013, Bao entrusted to the smell of the promissory note to the Wang Yu loan 7 million yuan after the first 540 for the return of their own owed money, interception of 700,000 yuan will be the remaining 900,000 yuan to the abalone, Bao only 500,000 yuan to Shen. Shen suspected that he was deceived, on the day of three o'clock in the afternoon Xu, and Xie, Zou, Chiang and other people in a hotel room, the palm of the slap, beatings, knife intimidation, robbery took Bao bank card 200,000 yuan, and asked it to write down a borrow Shen 7.2 million yuan IOU. 17 o'clock that day, Bao was free.

  At the end of February 2013 in early March, Shen etc was captured, Yi still with the 2.5 million-dollar promissory note as collateral, and through the Bao to Wang Yu borrow people 1.1 million yuan.

  February 17, 2013, Shen and other people suspected of robbery crime by public security organs of criminal detention, the same year March 25 was arrested in accordance with the law, the public security organs with its suspected crime of robbery transferred to the procuratorial organs to review and prosecute, the same year July 23 prosecutors accused Shen and other constitute robbery crime, the amount of huge, the case.

  The defense counsel proposes that the defendant Shen has no unlawful possession for the purpose of carrying out the case, and does not constitute the defense opinion of the robbery crime. The Court of first Instance adopted the above argument and sentenced the defendant to unlawful detention for a term of two months in prison. The first instance judgment comes into effect.

  【Defence comments】

  In the opinion of the defence counsel, the basic facts of the case are not comprehensive, part of the fact is not objective, the defendant Shen and other people in the implementation of minor violence, from the victims of the bank card transfer 200,000 Yuan and let Bao write down 7.2 million yuan IOU and other cases involved in the case, the subjective does not have illegal possession of the purpose, accusing it constitutes a robbery crime of insufficient evidence.

  First, the defender believes that the totality of the evidence in this case can be used to determine the following basic facts:

  a. Wang Yi owe Shen Yuan 14 million yuan, two people and their respective companies are jointly invested in a cold storage project in Zhoushan, a cooperative relationship.

  The above facts, there is the defendant Shen, Zou's justification and statement, Witness Yi, Li MoU's testimony and documentary evidence "Investment Cooperation Agreement" (have Yi Signature and company seal), Shen relatives provided by the IOU issued by Yi, Yi wife issued by the letter of commitment, etc. can be confirmed.

  b. The defendant, a company in Zhoushan, was in urgent need of 14 million yuan to buy a cold storage that a court intended to auction. And Yi due to Shen 14 million yuan, two people have a human rights and debt relationship and their respective responsible for the company's investment cooperative relationship, so adopt a variety of methods for Shen acquisition of cold storage to raise funds (including the introduction Shen through to yellow to borrow 4 million US dollar promissory note), Also committed to its through the remainder of the 2.5 million U.S. dollars borrowed from the 8 million yuan in mortgage financing of 6 million yuan, provided to Shen operating companies to pay for the purchase of cold storage costs.

  The above facts, there are the defendant Shen, Zou, Xie's statement, Witness, Yi and documentary evidence of Dollar promissory notes, Shen on behalf of a company in Zhoushan issued a promissory note, such as the IOU confirmed. Although Yi to the investigative authorities, said that the 2.5 million-dollar promissory note he was responsible for the company to solve the financial difficulties, not for Shen's company. But this statement and Shen investigation stage of two defenders to Yi evidence (there are recorded data to prove) Yi The testimony clearly inconsistent, should not be adopted letter.

  c. According to the existing evidence can be found that the victims of abalone, the case outside the public smell without sufficient financing, in order to earn illegal intermediary interests and return their huge debts, using the first commitment to 2.5 million U.S. dollars promissory note as a mortgage can borrow 15 million yuan means, Defrauding Yi and others to deliver 2.5 million-dollar promissory notes voluntarily to abalone for financing, as a result, the promissory note borrowed only 7 million yuan, and the first reimbursement of 5.4 million yuan personal debt, by the total amount of abalone, smelling 1.1 million yuan, only delivery of 500,000 yuan to Yi designated Shen use, fraud and dishonest behavior prior.

  The above facts are confirmed by the statement of the victim abalone and the testimony of the witness Yi, Yu and Wen.

  d. According to the existing evidence, the defendant Shen and other people to the abalone in the light of violence, not to rob the legitimate property of abalone, but because of the conversation still continue to make up the lie, provoked anger Shen and others, out of anger before the face, others followed the implementation of a slight violence.

  Evidence of the above facts, in addition to the confession and justification of a number of defendants such as Shen, witness Yi testimony can also be confirmed Shen and other people to the use of abalone is the reason for the violence is Bao lied to only borrow 500,000 yuan, even in the discovery of the day to transfer hundreds of thousands of of the number of remittance vouchers are still in rationalizations, which angered Shen and others.

  e. According to the existing evidence, sufficient to determine that the defendant Shen Congbao to obtain 200,000 yuan of the behavior, not to occupy the legal property of the individual, but the abalone should not be accounted for by the Yi approved Shen use of the financing funds, and Shen Xiangbao request This 200,000 yuan, the presence of Yi also did not object.

  In addition to the fact that the defendant Shen, Zou, Chiang, Xie and other statements and justifications confirmed that the victim of abalone's statement, witness Yi testimony also confirmed the fact.

  f. According to the existing evidence, can confirm the defendant Shen Jangbao write Iou reason, is Bao promised after the Spring Festival to continue to finance 7.2 million yuan, Shen let it write IOU only the role of guarantee. And in this process, Yi did not object, should be regarded as its to let Bao write IOU is responsible for continuing financing to be recognized.

  For the above facts, there is the statement of the victim Bao and the testimony of the defendant Xie. Moreover, according to abalone, smell and other people in the stage of the investigation of the statement and testimony, in the March 2013 after the incident, Yi to abalone and other people for 1.1 million yuan of financing funds, can also prove that the defendant Shen said the rationality of the justification.

  Secondly, based on the above basic facts and evidence, the defender believes that the existing evidence is insufficient to find that the defendant Shen participated in beating the abalone, and instructed others to transfer 200,000 yuan from the Bauka, and the request of Bao 7.2 million Yuan Iou's behavior, is to illegal possession for the purpose, the use of violent means to forcibly rob others of large property robbery crime.

  Specific reasons:

  a.There is sufficient evidence that Yi to Shen promised to the 2.5 million-dollar promissory note after the financing of most of the funds delivered Shen acquisition of cold storage, Shen subjective reason to believe that Yi through the financing of the Fund should first be used.

  b.There is more tangible evidence that the victims of abalone halimeter, in order to meet their own economic interests, infringement of the interests of the financing of the client, there is fault or illegal, criminal acts first, Shen and other people because of anger and the reasons for the violence against the abalone can be established.

  c.According to the existing evidence, should be found Shen Congbao 200,000 yuan and write down the 7.2 million Yuan IOU, is according to the agreement should be delivered to the financing of the entrusted party financing funds, and according to Yi's prior commitment to Shen, directly from the abalone, and the presence of Yi recognized, should not be illegal possession.

  In summary, the defense counsel believes that the existing evidence is not sufficient to prove that the accused Shenyu illegal possession of intentional, that his conduct constitutes a crime of robbery insufficient evidence.

  【Verdict Results】

  The court ruled that the defendant had been convicted of unlawful detention and sentenced to two months ' imprisonment for one year.

  【Referee Documents】

  The Court held that the defendant Shen, Xie, Jiang, Zou and the person in partnership, because of debt disputes illegally restricting the freedom of others, their behavior has constituted unlawful detention crime, is a joint crime. In the course of detention there are beatings, the four accused should be heavier punishment. The indictment organ accused the defendant of thanking and Chiang. In the case of the defendant Shen, Shing for the qualitative, the dispute between the two sides of the debate is whether the defendant Shen has unlawful possession of the subjective intention. First of all, the defendant Shen buy cold storage need funds is the fact, and Yi owe Shen 14 million yuan is also the fact. Shen Yi to obtain a promissory note from the rest of the amount of USD 4 million, the purpose is to borrow money after the promissory note, because it is not after the Yi, Zou, Li, and other people to Shenzhen again to help open the same nature of the promissory notes, and by Yi Contact Bao and other people mortgage loans, the proceeds of loans as Yi return shen arrears, Let Shen have funds to buy cold storage, this got the accused Zou and witness Li MoU testimony, and Yi also stated to Shen, Sandachi side, forcing him to return money. And Yi and Shen and other people to Shenzhen, because of tongling a company need to invest for the reason, ask the remainder to help its opening U.S. dollar promissory note, and Shen has nothing to do. According to Yi's statement, Shen and other people did not go to Shenzhen necessary; and its legal representative of the Tongling company's parent company is the legal representative of a holding group, Yu is its leader, that Yi through the US dollar promissory note used to solve the company's financial needs will not be unreasonable; Yi also failed to state the specific use of 15 million yuan, on the contrary, Only 500,000 yuan can be borrowed, Yi also failed to the investment funds have not been implemented and showed due anxiety and unease, and the issuance of 2.5 million U.S. dollars promissory notes can be mortgaged 15 million yuan, which with the Yi and Shen buy cold storage of the amount of funds needed to match. In conclusion, the defendant Shen's statement on the source and use of the 2.5 million-dollar promissory note is more in keeping with the objective facts, so the claim that the loan of the dollar promissory note mortgage has no intention of illegal possession. Second, as Yi said, it was learned that the U.S. dollar promissory note could be used for mortgage loans, so to step back, even if the promissory note is not related to Shen, and Shen Yin and Yi have a debt relationship, it is believed that Bao and other people cheat him, instead of Yi to handle the borrowed money for the loan, in order to realize its claim on the Yi, Can not prove that Shen has illegal possession of the intentional. Third, the defendant Shen on February 8, 2013 received the Yi instructions to remit to the 500,000 yuan, and Bao's bank card trading details indicate that the 500,000 yuan and later from the Bauka of 200,000 yuan are from the U.S. dollar promissory note of the mortgage, Bao in the field also recognized the source of money, Bao and other people did conceal the amount of money borrowed, And from the layers of interception, the damage to Shen's due money, it let Bao write down 7.2 million yuan of IOU, and is reasonable, but also in Bao promised after the Spring Festival to continue to help its borrowings, in order to ensure that Bao write under the promissory note, the amount of the IOU and the previous occurrence of 500,000 yuan, 200,000 of the nature of the same; Yi was indeed Through the use of the promissory note and borrow 1.1 million yuan, more to explain Shen Jangbao write down some of the amount of the IOU to achieve. Therefore, the prosecution accused Shen and Zou subjective illegal possession of the purpose of the lack of evidence, the two defendants do not constitute a crime of robbery, the public prosecution organs accused two accused of improper, should be corrected. To the defendant Shen, Zou and his defenders to put forward the justification, the defense opinion, to be adopted. The court found that the defendant was convicted of unlawful detention and sentenced to two months ' imprisonment for one year, and the remaining three defendants were sentenced to sentences ranging from 10 months to one year respectively on the same charges.

  【Case analysis】

  A. In the case of minor restrictions on personal freedom and access to property in the light of violence, whether the perpetrator has unlawful possession is the key to distinguish the crime of robbery or unlawful detention.

  In judicial practice, the crime of robbery and unlawful detention are generally more easily differentiated. But for some special cases, such as this case that have a certain cause, although the perpetrator objectively has slight restrictions on personal freedom, the implementation of minor violence and the objective characteristics of the two crimes are consistent with the performance, during the period also from the victims to obtain property, in line with the part of the characteristics of robbery, but if there is evidence that the perpetrator restricted the freedom of the victims, The purpose of minor violence is not to illegally occupy victims ' belongings, or, if there is insufficient evidence to prove that he has unlawful possession, the perpetrator should not be simply and mechanically identified as a robbery offence and sentenced to a more severe penalty in the case of a minor restriction of personal freedom or minor violence.

  B. When the perpetrator carries out the objective behavior which accords with certain criminal characteristic, whether subjectively has the illegal possession goal, needs according to "The evidence is true, is sufficient", "excludes reasonable suspicion" the criminal proof standard, synthesizes the entire case evidence to carry on the analysis judgment.

  The dispute between the two sides in this case does not lie in whether the crime of robbery requires the subjective element of illegal possession, nor does it produce any differences in the understanding that the purpose of illegal possession is to distinguish between robbery and unlawful detention, but according to specific and identical evidence material, is sufficient to determine the defendant Shen in the implementation of the relevant acts of the subjective unlawful possession of the purpose. According to the public prosecution organ, the defendant Shen and the victim have no direct creditor and debtor relationship, they have obtained the money of 200,000 yuan in the bank card of the victim after the minor violence to the victim, and let the victim produce the iou of 7.2 million yuan, which accords with the characteristics of the crime of robbery. The defender, on the basis of the whole case evidence material provided by the public prosecution organ, submits some evidence not collected by the investigative organs, carries on the thorough analysis to its authenticity and relevance, and reveals all the relevant facts and the interests of the relevant persons before the case. For the defendant Shen on the reason that he does not have unlawful possession of the purpose of the justification of the various grounds and reasons, and finally came to the public prosecution organs accused of the defendant Shen formed a crime of evidence of the defense conclusion. Since the defense opinion is based on rigorous evidence analysis and comprehensive factual determination, it is consistent with the facts of the court decision, and the analysis opinion and reason of the evidence are also basically adopted by the Court's effective judgment. The defendant, who was convicted of a robbery in which a sentence of 10 years or more was required to be sentenced to imprisonment, was eventually found guilty of unlawful detention and sentenced to two months ' imprisonment, with a notable effect.

  【Conclusion and suggestion】

  The case is an example of a successful defence of a criminal defence that has been convicted of a felony offence and has been lightly sentenced. The specific reasons surrounding the case evidence analysis and the factual cognizance in the defense opinion the dialectical process of a case which is complicated by the complexity of the case and the character and the evidence is disturbing underlines the importance and validity of the evidence defense, which is worthy of reference from the lawyers ' peers and the judicial practice Department.

  Criminal evidence defense, as a kind of defense form, has aroused more and more attention both in legal practice and in the field of law theory. The perfection of criminal evidence system, the advance of trial-centered doctrine, the advance of judicial reform, the formation of judges ' subjectivity and the shift of the focus of criminal accusation system provide effective assistance for criminal evidence defense. Therefore, in the criminal defense of lawyers, according to the characteristics of the case of the timely use of evidence to defend the method, can undoubtedly become a successful defense effective way.

  Another successful experience in the case of defending the evidence in the defense of the trial is that in the process of the criminal judicial adjudication, the fact of the case is still relatively independent, and the evidence defense should be aimed at influencing the judge's heart certificate. Through the analysis, weakening and interpretation of the evidence itself provided by the prosecution, the "qualitative change" of the evidence system of the prosecution is achieved through the "quantitative changes" of the evidentiary flaws, and finally the effect on the judge's heart certificate is realized. The attorney of the case was a senior criminal judge, it is well known that Judge judges pay attention to the facts of the case, and mainly use the evidence provided by the prosecution to determine the facts involved in the case, so its defense opinions focus on the existing evidence provided by the prosecution to comb, analyze, and break the scope of the prosecution's allegation of facts, It reveals and presents more comprehensive and objective case facts to the judges and jurors, and finally achieves the same effect as the case facts in the collegial panel and the lawyer's defense opinion. The agreement of the facts of the case is unanimous, which lays the factual foundation for the defense opinion to be fully adopted by the collegial panel, and the defendant's conclusion, which is based on the facts of the case, does not possess the illegal possession purpose, or finds that Shen has the insufficient evidence of illegal possession.

BONING CASE