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BONING CASE

Accused of revoking parole in a previous case, punishment, a company in Suzhou, exempted from criminal penalties for smuggling o

Ⅰ. Case basic Information collection

Case Type:Cases of lawyers ' lawsuits                         

Business Type:Criminal defense                    

Time of court decision:December 10, 2015              

Name of court:Suzhou Intermediate People's Court                                 

Name of defence counsel:Zhang Jian                         

Name of law Firm:Zhejiang boning Law Firm                    

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Peer review (real name, progressive):                               

Retrieving keywords:Criminal  Revoke parole  Exemption from criminal punishment

  Ⅱ.Case Body Collection

  Accused of revoking parole in a previous case, punishment, a company in Suzhou, exempted from criminal penalties for smuggling officers

  【Case Briefs】

  In mid-February 2011, a company in Suzhou (hereinafter referred to as "defendant unit") was suspected of smuggling solid waste, and was investigated by the Ningbo investigation Office of the imported goods. The company's legal representative Xiao Yang in the first interrogation when he confessed that the investigation authorities did not grasp the company suspected of low prices of some imported goods, evade the fact that the import link tax, and then in the investigation of Ningbo Investigation Department, and detailed account of the part of the low prices, tax evasion of imports of specific smuggling facts.

  The same year in early March, the defendant unit in charge of the actual person, the legal representative of young Yang to the Suzhou investigation authorities surrendered himself, frankly, the leading company suspected of low reported part of the import price of goods, evasion of import tax smuggling facts, and was released on bail. The investigation organ of Suzhou has found out the basic facts of the case in connection with the suspected smuggling of common crimes, and on April 25, the Customs approved certificate for the smuggling of goods and articles, which is suspected of being smuggled, amounted to more than 300,000 yuan in tax evasion.

  June 10, 2011, the Suzhou investigation authorities will this "suspected smuggling of goods, goods evade taxes Customs approval certificate" of the appraisal concluded that the defendant unit and the actual person in charge Lao Yang; In view of the defendant unit has previously been suspected of smuggling solid waste by the Ningbo investigation authorities for investigation, so on July 6, the case was transferred to Ningbo investigation authorities to deal with; in the previous one months, the investigation authorities in Ningbo have been the accused unit smuggling solid waste crime to the Ningbo People's Procuratorate for review and prosecution.

  After accepting this case, Ningbo investigation organ has further investigated the facts of the case: in the specific facts of the case, Xiao Yang was questioned in detail, and Xiao Yang truthfully confessed; the documentary evidence on the facts of tax evasion has also been investigated and verified; September 7, In the case of the defendant, Lao Yang, who is actually in charge of the unit, has been released on bail by the Suzhou investigative organ, and the Ningbo investigation authorities have taken the compulsory measures on bail for the suspected smuggling of waste again, and questioned it, and have informed the investigation authorities in Suzhou that the case will be transferred to Ningbo.

  However, the Ningbo investigation authorities in the defendant unit smuggling solid waste case investigation end, to the Ningbo people's Procuratorate for the crime of the transfer of review and prosecution, in the procuratorial organs returned to the supplementary investigation two times, in the case of the defendant unit low reported part of the price of imported goods, After the actual investigation of the crime of smuggling ordinary goods by evading the import tax, it did not deal with the facts and issued the supplementary prosecution opinion in respect of the facts of the case. On December 27, 2011, the Ningbo People's Procuratorate prosecuted for the crime of smuggling solid waste by the defendant unit, and the Ningbo Intermediate Court handed down a judgment on March 29, 2012, imposing a fine on it, and sentenced the company's legal representative, Xiao Yang, to six years ' imprisonment for the person in charge of the unit's smuggling waste; August 29, 2014, Xiao Yang was awarded parole by Hangzhou Municipal Intermediate People's Court of Zhejiang province.

  September 5, 2012, Ningbo investigation authorities on the original to be released on bail of the company's actual responsible Lao Yang, to "expire" as the basis, the release of its bail-pending compulsory measures, refund of security.

  August 21, 2014, Ningbo investigation organs in this case (smuggling of ordinary goods crime) "does not belong to my unit jurisdiction" as the basis, and the case transferred back to the Suzhou investigation organ jurisdiction. In the same year, November 18, the Suzhou investigative organs in the absence of any new evidence of the case, again to the case for investigation; December 11, 12th, the Suzhou investigation authorities to the defendant unit actual responsible Lao Yang took a third bail, to have been on parole of Xiao Yang also be released on bail, and two people for repeated interrogation, but did not find a new case facts.

  June 2, 2015, the Suzhou investigation authorities will be the Suzhou Customs April 25, 2011 On the case of the alleged smuggling of goods, goods evade taxes Customs approved certificate of appraisal concluded that the company has been paroled legal representative Xiao Yang, to the defendant units and Xiao Yang father and son to send the case to review and prosecute the prosecution notice; On the same day, to the public prosecution organ issued the "Prosecution submissions", the Lao Yang, Xiao Yang, respectively, as the defendant unit (suspected criminal units) directly responsible for the supervisors and direct responsibility personnel, transferred to the Suzhou people's Procuratorate to review and prosecute.

  After accepting the entrustment, the defense counsel Zhang to the Suzhou people's procuratorate to inspect and reproduce the file material, to communicate the defense opinion with the chief Prosecutor, and to submit the written defense opinion to the procuratorial organ in time.

  September 11, the Suzhou people's Procuratorate of the case to the Suzhou Intermediate People's Court of Public Prosecutions, the Lao Yang, Xiao Yang father and son both accused of the accused unit of smuggling directly responsible personnel, and the defendant unit "should be the smuggling of ordinary goods for criminal responsibility"; The legal representative of the defendant, Xiao Yang, "during the probation period, found that there are other crimes before the verdict has not been decided,…… should revoke parole and be punishment."

  【Defence comments】

  This case defender Zhang lawyer in the trial launched a full and effective defense, the main point of view is two:

  A. The case was concluded four years ago and, in the absence of new evidence, it would not be appropriate to prosecute the criminal prosecution again.

  a. After the transfer of the Ningbo investigation organ, the investigation organ of Suzhou will no longer have jurisdiction over the case. According to the Ministry of Public Security No. 127th Order "Public security organs to handle criminal cases procedures" (hereinafter referred to as "the procedures of Public security organs") the relevant provisions of the NO. 274, June 10, 2011, Suzhou investigation authorities to the case has been the end of the investigation, that the case is clear, the evidence is indeed sufficient, The conviction is correct, should pursue the criminal responsibility according to law, but did not make the final treatment, did not form "The indictment opinion", but was transferred to the Ningbo Investigation Authority on July 6 to dispose, meant that the Ningbo investigation organization and the defendant unit smuggled solid cargo crime combining processing.

  The 18th section of the procedural provisions of public security organs stipulates that in the case of "a person commits several crimes", the public security organ may combining the investigation within the scope of its duties. According to the legal principle, "one person" in "a number of crimes" should contain the units which can constitute the crime of unit crimes under the criminal law, and the Unit may constitute the crime of smuggling ordinary goods. Therefore, the investigation organ of Suzhou will transfer this case to Ningbo investigation Authority for processing, the procedure is lawful, but it should be found that the latter combining investigation, and since the date of handover, the jurisdiction of this case is to be exercised by the Ningbo investigation organ, whether the case is correct in nature and the criminal responsibility should be investigated.

  b. After the investigation of the case combining by Ningbo, also carried out a substantive investigation, master the case of all the facts of the crime, should be regarded as the end of investigation, its failure to transfer the case to review and prosecution, it should be understood that it does not believe that the case should be criminal prosecution, or found that the circumstances are minor, can not be held criminally responsible.

  First of all, after receiving the transfer of this case, Ningbo investigation organ has acquired jurisdiction, followed by a series of investigations, combined with its investigation of the company's first case for the smuggling of solid waste, has undoubtedly had jurisdiction over its examination and recognition, if it does not belong to its own jurisdiction, according to the procedures of the public security organs Article 172th stipulates that the original competent authority shall be transferred immediately.

  Secondly, the investigation Department of Ningbo has investigated the case in detail, and fully mastered the facts of the case. Ningbo Investigation authorities formally accepted the case, the case and the company is handling the case of smuggling solid waste combining investigation, both the suspect was questioned, made a record, and the relevant documentary evidence were investigated. From the evidence, the case is the basis for the prosecution of the basic evidence, the investigation authorities in Ningbo transferred back to the Suzhou investigative organs of evidence materials, including the latter July 6, 2011 to the Ningbo investigation authorities combining investigation evidence materials. Therefore, it can be ascertained that the investigation authorities in Ningbo have grasped all the facts of the case.

  Thirdly, the investigation organ of Ningbo has not dealt with all the evidence materials of this case, and has not issued the "supplementary prosecution opinion", it should be regarded as it has not found that the defendant unit and the person in charge should be criminally prosecuted, or that the plot is minor, the harm is not the crime. The reason is: since the Ningbo investigative organ has grasped all the facts of the case, it should be regarded as or should be regarded as the end of investigation.

  According to the procedure Regulation of public security organs, No. 274 to 279 relevant provisions, if the Ningbo investigation authorities found that the defendant units and their principals constitute the crime of smuggling ordinary goods clear, the evidence is indeed sufficient, the conviction is correct, and there is a complete legal formalities, it can be, should also make "supplementary prosecution submissions"; It has not taken the step of transferring the procuratorial organ to review the prosecution, no "supplementary prosecution submissions", from the parties and the public perspective (although the case is directly related to the public, but not specific members of society have the possibility of illegal conduct of the criminal investigation, the Criminal Procedure Law guarantees human rights and other provisions and legal functions must cover the whole society) , it should be regarded as or should be regarded as the end of investigation, and found that the unit and the person in charge of the investigation is minor, the harm is not very small, not considered to be a crime, otherwise it must be transferred to the review and prosecution, but in fact did not move v.

  In summary, from the evidence of this case, the Suzhou investigation organ June 10, 2011 has been the end of the investigation, the transfer of combining, Ningbo investigation organs after the supplementary investigation has also ascertained the whole case, the investigation procedure has actually terminated.

  According to the Code of Criminal Procedure and the procedure of public security organs, the laws and regulations regulating the criminal action of public security organs, the end of investigation must arrive at whether the investigated case constitutes a crime, whether the facts are clear, whether the evidence is indeed sufficient conclusion; Lack of evidence, or the conduct of the case does not constitute a crime, or the circumstances are minor, harmful, not considered a crime.

  c. The case belongs to the case should be withdrawn but not withdrawn, the Suzhou investigation organ again to this case in the November 18, 2014 investigation in the law is not, there is violation of the relevant provisions of criminal procedure laws and regulations.

  The material of the case was handed over to the Suzhou investigation organ by Ningbo Investigation Authority on August 21, 2014, but the reason for the transfer was irrelevant to the defendant's unit and the person responsible. The case was returned to the original outward transfer of the investigation organ after three years, and there was no one of the defendant units and the person in charge of Lao Yang, Xiao Yang caused.

  The case was investigated by two investigative organs, found out the facts of the case, terminated the investigation procedure, but put aside for more than three years and did not continue to advance the criminal procedure, although the internal failure to discharge the procedures for the revocation of cases, but its objective results at least for the parties and the public, is equivalent to The Rules of procedure of public security organs 183th, the first paragraph stipulates the circumstances of the case should be revoked, suitable for the circumstances of the case should be "significantly minor circumstances, no harm, not considered a crime." According to the amount of more than 300,000 yuan in tax evasion in the defendant's unit, beyond the relevant judicial interpretation in accordance with the provisions of the 250,000 yuan tax evasion of the unit smuggling ordinary goods for criminal responsibility of the starting point is not small, relative to the defendant units for several years in the amount of imported goods by law, its proportion is very small, and avid have surrendered the plot, It is not too much to think that "the plot is slight, the harm is not great, it is not considered a crime".

  In particular, the Ministry of Public Security normative documents "public security organs to deal with economic crimes cases of several provisions" (public word [2005]101) 14th clearly stipulates: "After the case of the criminal suspect after the lifting of coercive measures 12 months, can not be transferred to the review and prosecution or other treatment by law, The public security organ shall revoke the case. "This normative document is to the criminal Procedure Law and the Public security organ procedure stipulation" and other laws and regulations specific stipulation, already for this case processing has clarified the legal operating procedure. Ningbo investigation authorities accept the transfer of the case, after further investigation, the mandatory measures for the lifting of the bail-pending trial of the defendant, who had decided to act in the present case on September 5, 2012 (the compulsory measure for the recognizance of the suspected smuggling of ordinary goods), have also been removed, and have not been continued, The present case shall be revoked by September 6, 2013 by law.

  Therefore, this case is a case which should be withdrawn and not withdrawn at the investigative stage. The investigation organ has not withdrawn the case in the procedure of handling cases, so it cannot deny that the objective result of the case has constituted the fact of meeting the conditions of revocation. There is no specific stipulation in the criminal Procedure Law of our country whether this kind of case which should be withdrawn is not revoked in the internal procedure of the investigation organ. However, for the cases that have been withdrawn, the conditions for the reopening of the investigation, the legal provisions are very clear, and is the only —— "and found new facts or evidence that there is a criminal fact to be held criminally responsible, should be reopened for investigation" ( Procedural provisions of public security organs 186th Article I).

  Suzhou investigation organ after more than three years, in the case of no new facts or evidence, once again (repeatedly) on the case for investigation, against the public security organs of the procedural provisions of the 186th and the public security organs to deal with economic crimes cases of certain provisions (public word [2005]101) 14th of the provisions, Its re-filing investigation appears to be a procedural offence, which directly results in the human rights damage of the defendant units and their principals.

  In summary, the investigation organ in this case, in the end of the investigation, in the absence of new evidence, to reopen the case, the criminal prosecution, and the law is without grounds.

  B. The indictment to the defendant unit legal representative Xiao Yang "in the probation period, found that before the verdict and other crimes no verdict,…… should be revoked parole, to be punishment" is not in accordance with the relevant provisions of the criminal law.

  Indictment this allegation refers to the prosecution in the examination and prosecution stage found that the defendant Xiao Yang in the March 29, 2012 for smuggling waste crime by Zhejiang Ningbo Intermediate People's Court sentenced to six years before the sentence and today is accused of this crime is not a verdict, should be revoked parole, punishment.

  But when did the accusation of the indictment be found? Who found out about it after the verdict of March 29, 2012, or was it found in the trial period of Xiao Yang's parole? The indictment is vague, indicating that the facts are unclear, the evidence is insufficient, or the evidence is missing, and the truth is not restored.

  The fact is that this crime is not found in the indictment of the prosecution, but in the defendant's unit and the accused Xiao Yang smuggling waste crime before the verdict announced (not after the verdict), Suzhou and Ningbo investigation authorities have found, but not in the trial of Xiao Yang probation period found; And the only cause of this discovery is the accused old Yang Xiao Yang himself confession. Therefore, the legal representative of the defendant's unit, Xiao Yang, was sentenced when he was convicted of smuggling waste, there is no question of the verdict of this crime, it does not belong to the "leakage offence", and is not the omission of Xiao Yang's refusal to account for this crime, and thus does not fall within the circumstances applicable to articles 86th and 70th of the Penal Code, There is no reason why parole should be revoked.

  The legislative purpose of articles 86th and 70th of the Penal Code is to punish criminals who have committed crimes, to refuse to account for offences committed, and to cause the crimes to be investigated and to be seriously punished. The legal representative of the defendant's unit, Xiao Yang, has not been convicted of this crime, not because of its refusal to do so, but because it has long been discovered by the investigative authorities but not in accordance with the relevant provisions of the Code of Criminal Procedure, resulting in not only the circumstances applicable to articles 86th and 70th of the Penal Code, Nor should it actually aggravate its punishment.

  【Verdict Results】

  On December 10, 2015, the Suzhou Intermediate People's Court made a criminal judgement on the case, repeated cases of prosecution in the case did not respond to the prosecution, accusing the accused Xiao Yang of the application of the PRC Penal Code 86th, 70th, 69th provisions, the revocation of parole, The punishment of the public Prosecution opinion is not supported and a consensus is taken with the defender. The defendant unit in Suzhou was eventually sentenced to a fine, and the actual head of the defendant's unit was sentenced to eight months imprisonment, suspended for one year, and the legal representative of the defendant's unit, Xiao Yang, that the crime was minor and exempted from criminal punishment.

  【Referee Documents】

  The judgement of the first instance court found that the defendant unit specific smuggling of ordinary goods facts and tax evasion amount.

  With regard to the accusation of the public prosecution that the defendant Xiao Yang applies the provisions of articles 86th, 70th and 69th of the criminal law of the People's Republic of China, to revoke parole and to punish the public Prosecution opinion, the first instance court considers that the article 70th of the Penal Code expressly stipulates that Found that the sentenced offender before the verdict and other crimes before the decision of the time, should be the verdict after the execution of the sentence before the completion. The existing evidence confirms that the defendant, Lao Yang, on behalf of the defendant unit surrendered to the Suzhou investigation Organ on March 1, 2011, has given a detailed account of the 6 smuggling crimes involved in the case, and provided the relevant documents, the Suzhou investigation Organ on March 1, 2011 to investigate the case. The accused Xiao Yang also made the corresponding confession in the interrogation record of August 3, 2011. The Ningbo Intermediate People's Court of Zhejiang province sentenced him to six years ' imprisonment on March 29, 2012 for committing smuggled waste. The case of smuggling the crime, not after the verdict, the defendant Xiao Yang's sentence after the completion of the execution or the trial period of his parole found that the defendant Xiao Yang should not apply the provisions of the three provisions, so the public prosecution organs of the public Prosecution opinion, the Court does not support.

  The Court of First Instance held that the defendant's unit and its directly responsible supervisor were accused of violating customs regulations, evading customs supervision, using low price to smuggle ordinary goods and evading tax payable, and should be held criminally liable for the crime of smuggling ordinary goods. The accusation of the public prosecution organ is correct, the facts are clear, the evidence is sufficient and the court supports it. The defendant unit, the defendant Lao Yang, Xiao Yang voluntarily surrendered, truthfully for his crimes, are surrendered, can be lighter punishment. In accordance with the circumstances of the case, and according to the conditions of the crime, penitence and the opinion of the resident community, the Court decided to apply the probation to the defendant Yang. The defendant Xiao Yang was appointed to the father, the defendant Lao Yang, the crime is minor, can be exempted from criminal punishment.

  In summary, the Court in accordance with the law of the People's Republic of China 153th and other relevant laws and regulations, sentenced to the defendant unit sentenced to 330,000 yuan fine; the defendant Lao Yang guilty of smuggling ordinary goods, sentenced to eight months imprisonment, suspended for a year;

  …… ……

  【Case analysis】

  In this case, the defendants sincerely thanked the court for his fair judgment, and the defender also praised the court for the correct application of the law on the basis of ascertaining the facts and the courage to bear the justice. At the same time, the investigation in the case of the investigative organs of the procedural flaws, but also hope to give a judicial response.

  The case has accumulated many facts that do not conform to the legal provisions of criminal Procedure, the formation of a number of unusual circumstances, not foreseen in the legislation: detection of the end, combining and after the completion of the actual investigation more than three years, repeat the case for investigation; In the absence of new evidence, the criminal prosecution; a party (from the suspect to the defendant) Three times has been the imposition of coercive measures; another person who has been paroled has been faced with the parole of revocation, and the situation of continuing to serve a sentence of imprisonment …… is difficult to think of as normal in both legal and reasonable sense.

  Criminal Procedure Law is a legal norm of adjusting criminal action, which not only regulates the criminal action of investigative organs, public prosecution organs and judicial organs, stipulates the procedure of criminal Procedure, but also indicates the protection of the rights of the Parties and other litigants. In the general provisions of the Criminal Procedure Law of China, the task of the Criminal Procedure Law is stipulated at the outset —— in ensuring accurate and timely identification of criminal facts and punishing criminals according to law, we must respect and safeguard human rights, including civil rights, property rights and many other relevant rights.

  In this case, the conclusion or termination of investigation itself not only has the procedural significance of criminal Procedure Law, but also contains the legal value of guaranteeing human rights. The legal norms of criminal procedure including the end of investigation, not only to regulate the implementation of the steps of investigation and other criminal prosecution and the resulting results, the parties and other litigants also have reason to think that the relevant criminal procedure and its results represent the conduct of a criminal proceedings or the middle (end) of the criminal Procedure, In the absence of new evidence and other legal premises, should not be repeated in accordance with the law, otherwise, the criminal prosecution parties and other participants in the legal rights and interests can not be guaranteed. As the case is, if it cannot be corrected in a judicial way, any person who commits a confession to commit a number of offences may be selectively dealt with separately, and after the end of a crime penalty, he may also face the penalty of another crime, which will lead the ordinary people to feel insecure about the criminal law.

 

  Therefore, it is absolutely necessary to rectify the flaws in the investigation procedure such as this case.

BONING CASE