Lü Siyuan and Lv Jun

Case Brief

The People's Procuratorate of a certain district in a certain city accused the defendants Tong Moumou, Shi Moumou and Zheng Moumou of committing a crime. Corruption crime. The public prosecution organ believed that the defendants Tong and Shi, while serving as the Party Committee Secretary of Xiaoshun Town and the Director of the West Development Office of Xiaoshun Town respectively, took advantage of their positions in charge of and were in charge of the West Development Office of Xiaoshun Town, together with the defendant Zheng. A certain person, who has conspired to illegally appropriate public funds by concealing facts and making false claims, should be held criminally responsible for corruption. In the first instance, the XX District People's Court ruled that Tong was guilty of corruption and sentenced to ten years in prison; Shi was guilty of corruption and sentenced to ten years in prison; Zheng was convicted of corruption and sentenced to seven years in prison.

The three defendants appealed. In the second instance, the Intermediate People’s Court of XX City held that “the original judgment found that the facts of the three defendants’ conspiracy to embezzle public funds were unclear and the evidence was insufficient. At the same time, the first instance also violated legal provisions. "Under the circumstances of the proceedings", the first-instance judgment was ruled to be revoked in accordance with the law and the case was remanded for retrial.

The XX District People's Court reexamined the case and held that "the facts of the corruption alleged by the public prosecutor's office are basically clear and corroborated by evidence," and the judgment of the first instance was still adopted.

During the second retrial stage of this case, Lu Siyuan and Lu Jun served as Tong Moumou’s defenders respectively with lawyer Wu Zhengnan ***, and defended Tong Moumou’s innocence in accordance with the law.

During this period, Lu Siyuan went to Beijing to invite Gao Mingxuan, Chen Guangzhong, Liang Huaren, Wu Zhipan, Chen Xingliang, Zhang Sihan and other well-known criminal legal experts in my country to make arguments on the case. The experts unanimously believed that the three defendants Tong Moumou did not constitute Corruption crime. Lu Jun and Wu Zhengnan appeared in court and seriously pointed out the facts in this case that "the corruption was false and evidence was obtained and torture was used to extract confessions."

On September 21, 2006, the XX City Intermediate People’s Court held after retrial that “the defense and defense opinions put forward by the three defendants and their defenders did not constitute a crime of corruption and were consistent with the facts ascertained by this court. The court will give its approval."

Focus of Dispute

Whether Tong Moumou and three others constituted a crime of corruption.

The prosecution believes that the actions of the defendants Tong Moumou, Shi Moumou and Zheng Moumou constituted the crime of corruption.

The defense believes that Tong Moumou and the other three persons do not commit the crime of corruption. The following are the main points of the defense:

(1) Without procedural fairness, there must be no substantive fairness

This case is a typical case in which torture and torture were used to extract confessions, and the procedures were seriously illegal.

1. Extorting confessions through torture is expressly prohibited by law.

Since humans entered civilized society, torture and extortion of confessions have been expressly prohibited by law. Our country's laws and regulations expressly prohibit torture to extract confessions. The International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has also been concluded, which elevates torture to "torture" and explicitly prohibits it.

2. There is overwhelming evidence of torture to extract confessions in this case.

Whether there was torture to extract confessions in this case, the facts are ironclad.

The arraignment registration in this case proves the fact that the interrogation lasted for three days and three nights; the three defendants’ confessions without collusion confirmed the fact that they were tortured to extract confessions, such as being deprived of sleep, restricted in food and drink, and handcuffed behind their backs for three days and three nights. Interrogations, "wheel fighting" fatigue trials, etc.

Then, whether the above-mentioned actions constitute the nature of torture to extract a confession, it will be clear by comparing it with the law:

Being deprived of sleep for three days and three nights should be regarded as "torture". What is torture? Article 1, paragraph 1, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment stipulates: “Torture means the purpose of obtaining information or a confession from a person or a third party, in order to obtain information or a confession from a person or a third party. An act committed or alleged to punish him or a third party, or for the purpose of intimidating or threatening him or a third party, or for the purpose of intentionally inflicting severe physical or mental pain on a person on any ground of discrimination or Any act that inflicts pain or suffering upon, or with the instigation, consent or acquiescence of, a public official or other person acting in an official capacity." Article 4 of the Convention also provides: " Each State Party shall ensure that all acts of torture shall be criminalized and shall be "appropriately punished". The world-famous Russian biologist Pavlov once conducted an experiment on two dogs: one dog was kept in a cage without being fed, but allowed to sleep well; the other dog was kept in a cage and allowed to eat, but was not fed. Its sleeping. On the seventh day of the experiment, the dog that was not fed food was still alive, but the dog that was not fed sleep died. It can be seen that deprivation of sleep is very serious and dangerous for people and animals. Therefore, the act of depriving people of sleep for three days and three nights is in accordance with the "Prohibition of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment". Convention is torture (our country ratified the Convention on October 4, 1988, and the Convention came into effect for China on November 3 of the same year). At the same time, according to the relevant laws of our country, the above-mentioned behavior is a disguised form of corporal punishment!

What is corporal punishment and disguised corporal punishment? The so-called corporal punishment refers to violence against the victim's body, such as hanging, tying, and beating. and other methods of tormenting the human body. The so-called disguised corporal punishment refers to the use of non-violent torture and torture on the victim, such as freezing, starving, roasting, and drying.

When corporal punishment and disguised corporal punishment are used in torture methods, political and disciplinary punishment should be imposed at the least, and criminal responsibility should be pursued at the most serious.

During these three days and nights, the defendant was not only severely tortured by being "not allowed to sleep", but was also tortured by the following behaviors: First, he was put on a blackhead on his head while being taken to the special interrogation room. condom, leaving only two nostrils for breathing (note: this shocked me, in a peaceful world, with a clear world, how can the procuratorate learn the "gangster" method of detaining people?!), making the defendant fearful, this is The defendant was physically and mentally tortured! Secondly, the defendant was restricted from eating and drinking for three days and three nights. He was only fed water three or four times and was only given small instant noodles five or six times. This was also a physical and mental torture to the defendant! Thirdly, he was only fed water three or four times and was given small instant noodles five or six times. , the defendant was handcuffed behind his back and tried for three days and three nights. Except for urinating, he was handcuffed behind his back the rest of the time. This was also a physical and mental torture for the defendant! Fourth, for three days and three nights, two groups of four people were interrogated continuously and engaged in a wheel battle. , Fatigue fighting, this is also a physical and mental torture to the defendant!

The above-mentioned behaviors, combined with the effect on people, how much damage and damage to people's physical and mental health!

< p>The above-mentioned behaviors are all prohibited by law. Article 43 of the "Criminal Procedure Law" stipulates: "...Extorting confessions by torture is strictly prohibited..." Article 61 of the "Interpretation of the Criminal Procedure Law" stipulates: "It is strictly prohibited to collect evidence by illegal methods. "Any witness testimony, victim statement, or defendant's confession that is confirmed to have been obtained through illegal methods such as torture, threat, inducement, or deception cannot be used as a basis for finalizing the case." It is obviously wrong to convict the defendant by using so-called "evidence" illegally obtained through torture.

3. The prosecution has admitted two facts about the implementation of "disguised corporal torture": First, the prosecution has admitted the facts about the "continuous interrogation for three days and three nights". In the previous trial of this case, the defense lawyer was questioned for a long time and why. The defense of the issue of behind-the-scenes interrogation disproves this fact. The prosecution argued: "The law does not stipulate the duration of interrogation after criminal detention." (See trial transcript) The prosecution's defense exactly contradicted the prosecution's admission that the defendant was not allowed to sleep for three days and three nights, and the interrogation was continuous and exhausted. the fact of war.

Second, the prosecution admitted the fact of "interrogation with handcuffs". The prosecution argued: "The defendant was handcuffed for safety." The fallacy of this defense was that the defendant showed no signs of resistance or self-injury, and was not suspected of a violent crime, so why should he be handcuffed?! At the same time, counter-evidence has been provided The prosecution admitted the fact that they were interrogated in handcuffs for three days and three nights!

4. The refusal to hand over the synchronous video of the whole process once again disproves the objective existence of the fact of torture to extract confessions.

Since the defendants have raised the issue of torture to extract confessions, and the defense lawyer has also applied to the court for access to the entire video, if the prosecution has not used torture to extract confessions, why not show it to prove that it has not used torture to extract confessions? What about the behavior?! This refusal to surrender can only infer the objective existence of torture to extract confessions. Therefore, the prosecution can only bear the adverse consequences of being unable to provide evidence according to the law!

In fact, the prosecution’s refusal to surrender The reason is untenable. Because the purpose of setting up simultaneous video recording of the entire interrogation process is to prevent the subjects from retracting their confessions and to supervise the interrogators. Therefore, based on the fact that all three defendants in this case retracted their confessions and all three defendants claimed that the prosecution personnel extorted confessions under torture, both from the perspective of proving that the defendants’ retraction of confessions was unreasonable, and from the perspective that the prosecution personnel should be subject to supervision (note: everyone is equal before the law, From the perspective of no special citizen who is not subject to legal supervision, the prosecution has no choice but to submit the entire synchronous video to the court for cross-examination (whether the cross-examination was produced simultaneously, whether there was a time jump, whether the content was deleted, whether the behavior and expression of the person being interrogated were Normally, etc.), there is no reason to refuse to surrender!

If the prosecution refuses to surrender again, the second-instance court of retrial should accept the confessions of the three defendants based on their confessions extracted under torture, and exclude The so-called evidence obtained through torture is also submitted to the disciplinary inspection department for review!

(2) Unfounded conviction, presumption of guilt, wrongful accusation and wrongful conviction

"Based on facts" The principle of handling cases, in the final analysis, requires that cases be handled "with emphasis on evidence and based on evidence". So, what is the evidence in this case? 1. Look at the evidence in this case from the "means of obtaining evidence": There is not a single piece of evidence in this case that is sufficient to convict the defendant, that is, there is zero evidence to convict the defendant in this case!

Why is it said "zero evidence to convict"? Please look at this case Facts:

First, in this case, except for the "guilty" confessions of the three defendants obtained through torture, no other evidence can prove that Tong Moumou and other three defendants are guilty! This is something that no one can Negative objective facts.

Second, judging from the first fact mentioned above, the only evidence for the accusation and conviction of the defendants in this case is the so-called "guilty" confession made by Tong Moumou and other three defendants who were tortured to extract confessions (note ) According to legal provisions, evidence obtained through illegal means is not legal and should be excluded. Therefore, the so-called "guilty" evidence used to convict Tong Moumou and three other defendants in this case were all obtained through illegal means and should be excluded in accordance with the law and should not be accepted. Therefore, this case is said to have "zero evidence for conviction"!

2. Looking at the evidence in this case from the standard of "certain and sufficient" evidence: the so-called "guilty" confessions and relevant evidence of the three defendants illegally obtained by the prosecution do not meet the standard of proof of "certain and sufficient" evidence.

Article 162, Paragraph 1, of the "Criminal Procedure Law" stipulates: "If the facts of the case are clear, the evidence is reliable and sufficient, and the defendant is found guilty according to the law, a guilty verdict shall be made." According to this provision, our country The standard of proof for evidence in criminal proceedings is “reliable and sufficient evidence.” "Real and sufficient" puts forward requirements for the evidence system from two aspects: "qualitative" and "quantitative", and is the combination and unification of "qualitative" and "quantitative". From a "qualitative" perspective, the evidence must be "certain", which means that the evidence has objective authenticity; from a "quantitative" perspective, the evidence must be "sufficient". Sufficient evidence means that it has probative force and is sufficient to prove the facts to be proved. The evidence is "really sufficient" to prove that the result is an objective fact that is exclusive and completely certain. "Sufficient to prove" means that the evidence system has: mutual corroboration, that is, the evidence should corroborate each other, support and explain each other; non-contradiction, that is, there is no contradiction between the evidence, between the evidence and the facts, between the evidence and the reason. There should be unexplainable contradictions; the closure of the evidence, that is, the evidence, the evidence and the facts, and the factual elements are interlocking without breaks, so as to ensure that each link has sufficient proof; the proof of the conclusion Uniqueness means that the conclusion should be unique based on the comprehensive determination of the facts and reasonably exclude other possibilities.

Using the "four characteristics" requirements of the proof standard of "sufficient facts" and "sufficient proof" of the evidence system, it is obvious that the evidence in this case does not meet the "four characteristics" requirements:

Art. 1. The "mutual corroboration" requirement of the comparative evidence system:

The so-called evidence used to "convict" this case completely does not meet this requirement.

On the so-called "conspiracy" issue in this case, the so-called "guilty" confessions of the three defendants have shown "different times", "different places", different confessions of the amount of stolen money and different causes and consequences. Phenomenon, and a true and effective evidence must meet the requirements of "five what", that is, when, where, who, what, and what cause and effect. However, the "four" elements among the three defendants' confessions are obviously inconsistent. "Mutual corroboration" obviously does not meet the standard of proof of evidence and cannot be used as a basis for determining "conspiracy".

Second, the "non-contradiction" requirement of the evidence system:

The so-called "obtaining stolen goods" issue in this case, the so-called "guilty" evidence given by the three defendants who were tortured to extract confessions, The three people had three theories:

Tong "confessed": he got 60,000 yuan in stolen goods, Shi got 100,000 yuan in stolen goods, and Zheng got 10,000 yuan in stolen goods; Shi "confessed" ": He got 80,000 yuan in stolen goods, Tong got 60,000 yuan in stolen goods, and Zheng got 30,000 yuan in stolen goods.

Zheng "confessed": He got 2,000 yuan in stolen goods, and the remaining 160,000 yuan was given to Shi.

The so-called "confession" in which three people's statements are completely contradictory is obviously made up by people who cannot bear the torture of torture to extract a confession. It obviously does not meet the requirement of "non-contradiction". It is obvious that It does not meet the standard of proof and cannot be used as evidence to confirm that the three defendants embezzled more than 170,000 yuan!

Here, we cannot help but raise a big question that is difficult to rule out: corruption is the illegal possession of public property* **Property is the starting point and destination. If the three defendants really wanted to commit corruption, why couldn't they even agree on the core issues of "starting point" and "destination"? How could there be a situation where there was not a word mentioned in the "conspiracy"? If it was really necessary How come there are three completely different opinions about how they passed stolen money? If it were true, even a three-year-old child wouldn’t say how many candies he got by mistake!

Third, compare the evidence system The "closure" requirement of the evidence system:

Because the evidence in this case is full of contradictions and cannot be corroborated and connected to each other, it is impossible to form a complete chain of evidence. Therefore, it does not meet the "closure" requirement of the evidence system.

Fourth, the "uniqueness" requirement of the comparative evidence system:

Because the evidence in this case has the above-mentioned "non-verification", "conflict" and "non-closure" , therefore it is impossible to draw a unique conclusion, and thus does not meet the "uniqueness" requirement of the evidence system.

Precisely because there are objective facts in this case that cannot be used as a basis for finalizing the case, the two levels of courts tried it three times and found the following facts and evidence in this case:

Original The XX District Court of first instance found that the facts of this case were basically clear and supported by evidence.

The XX City Intermediate People's Court of the original second instance found that the facts of this case were unclear and the evidence was insufficient.

The XX district court that retried the first instance avoided talking about this and made no conclusion.

The above different situations clearly tell people:

The conclusion of the original first instance that "the facts are basically clear and supported by evidence" can only prove that the original court did not dare to make a " "The facts are clear", so the word "basic" was added to it. We did not dare to conclude that "the evidence is indeed sufficient", so we had to write "there is evidence to prove". This conclusion is completely inconsistent with Article 1 of the Criminal Procedure Law. The statutory requirements for conviction stipulated in Article 162 of the Criminal Procedure Law!

Based on the facts of this case and the statutory requirements stipulated in Article 162 of the Criminal Procedure Law, the original second-instance court objectively and fairly made the decision that “the facts are unclear and the evidence is unclear” "Insufficient" conclusion!

After the XX Intermediate People's Court revoked the original judgment and remanded the case for retrial, the first-instance court should have more clearly seen the serious problems in the facts and evidence of this case, and therefore avoided it. No discussion, no conclusion, which is also rare in the judgment! It is a manifestation of extremely irresponsible law enforcement!

(3) Tong Moumou’s behavior does not meet the constituent elements of the crime of corruption

1. It is inconsistent with the objective requirements of this crime.

The objective aspect of this crime is the act of taking advantage of one's position to embezzle, steal, defraud or otherwise illegally possess public property.

The charges in this case and the two first-instance judgments all found that in August 2003, the defendants Tong, Shi, and Zheng conspired (or called a conspiracy) to conceal the facts. , illegally occupied more than 170,000 yuan in public funds by falsely reporting false claims, and his behavior constituted the crime of corruption. It was determined that the objective aspects of the defendant's crime were "concealing facts, making false claims and claiming falsely," and illegal possession, which were behavioral characteristics of "fraud." In fact, based on all the evidence in this case, it is impossible to prove that the defendant's behavior met the above characteristics.

First, a comprehensive review of the evidence in this case not only fails to prove "concealing facts", but it can only prove that the behavior of the three defendants was public:

① The discussion was a normal and open discussion.

First, from the perspective of identity, it is normal and public: Tong Moumou who attended the meeting was the deputy secretary of the Xiaoshun Town Party Committee at the time, Shi Moumou was the main leader in charge of the west development zone of the town, Zheng Moumou was So-and-so is the director of the village committee of the village involved in the demolition and is also a person affected by the demolition. The discussion between these three people is normal and open.

Secondly, judging from the content of the discussions, they all involve demolition matters, which are normal and public.

Thirdly, judging from the location, it is in the office and the door is open. The comrade who delivers the tea can come in and out at any time. The comrade who delivers the tea also claims to have heard a few of these sentences, which proves that it is normal. , open!

Therefore, the evidence in this case cannot prove an illegal "conspiracy" (or *** conspiracy).

②Making a "list" and attaching a "list" are public "extensions" of normal and open discussions.

First, the 170,935 yuan given to Zheng Moumou in the "list" has been listed as a separate item (Item 11), and A. One-story factory building (east) 600m2×200 yuan, totaling 120,000 yuan; B. Factory building foundation (west) 600m2×60 yuan, totaling 36,000 yuan; C. The wall is 166 meters × 90 yuan, totaling 14,935 yuan and other three details. It is marked in such detail that it cannot be confused with special young crops, etc., and it cannot be confused with other people's factories. If it is given to Zheng, it is given to Zheng. This is enough to prove that it is normal and public.

Secondly, there is documentary evidence (receipt of payment) that proves: Shi Moumou endorsed the certificate with the words: "Attached list, please review and approve"; on the front of the documentary evidence is Xu Shuangdi's instructions: "Agree to pay" of words. Shi Moumou's confession was accompanied by a "copy of the list" (see the original second-instance trial transcript), while the testimonies of Zhang Moumou, Xu Shuangdi and others stated that they did not see the list. In fact, the so-called "report" was attached. rather than a list.

Faced with these two sets of tit-for-tat evidence, it should be clear at a glance which one is true and which one is false:

A. Legal evidence effect: documentary evidence is higher than verbal evidence. Why did the prosecution and the XX District Court use the testimonies of Zhang Moumou, Xu Shuangdi and others to deny the documentary evidence.

B. The prosecution claimed that the three defendants made the "list" for future inspection purposes. This is an unfounded speculation, and speculation cannot be used as evidence!

C. The "list" issue in this case cannot be inferred to the conclusion that "only the report is attached but not the list":

First of all, Shi Moumou endorsed the words "Attach a list for approval" on the financial voucher. This is An irrefutable fact.

Secondly, there are five review and approval steps for this payment. As the review and approval personnel, Xu Shuangdi and others are not illiterate and do not recognize the words "attached list". If the "report" is attached instead of "List", during the review and approval process, it is impossible not to discover that the "report" will be required to be replaced with "list". The three words "attached list" are special and important explanations of the purpose of the approved funds. It is impossible not to see it. and does not require replacement. Therefore, if there are three words "attached list", it should be presumed that a list is attached (Note: There are two invoices on the same day and another voucher for 1.48 million yuan. Shi Moumou also The endorsement of "attached settlement list", but the list was actually attached, can indirectly prove that the financial voucher in this case was indeed attached with a list at that time), which is a normal and reasonable presumption.

Thirdly, since there is the word "Attached List" on the back of the financial voucher, and then the list disappears, this cannot be inferred that there was no attached list at that time.

Because this cannot rule out two possibilities for the copy of the attached list: one is the possibility of being lost, and the other is the possibility of being deliberately removed. What's more, both Tong and Shi said that they later saw a copy of the list in the financial information, so the above two possibilities cannot be ruled out.

Our above-mentioned presumption is a legal presumption of innocence. The prosecution believes that "there is no list attached" and the statement that the list is for future inspections not only violates the evidence rule that "the validity of documentary evidence is greater than the validity of testimony", but is also the result of the illegal "presumption of guilt", and "guilty" "Presumption" is prohibited by law! Therefore, it is completely untenable for the prosecution to use "no attached list" to prove that the three defendants "concealed facts"!

③Zheng Moumou Receiving money is public. Although Zheng Moumou did not give the village accounting vouchers, it cannot be considered that Zheng Moumou received the money in a hidden way. Please look at the facts:

Firstly, the cashier Jinyin knew that he had received the money; secondly, the village deputy party secretary Fu Moumou and the villagers knew that Zheng Moumou had received the money. Fu's testimony proved in detail that he had gone to the town many times to ask for a solution to the problem of special young crops money. Later he learned that Zheng had received the money and reported it to the town.

The above is sufficient evidence that Zheng received the money publicly. If Zheng really collaborated with Tong and Shi in corruption, would he dare to receive the money in such a public way? Obviously not. Our presumption is a legal "presumption of innocence", and the prosecution presumes that Zheng is "concealing the facts" when he catches Zheng receiving money without issuing a voucher (Note: In fact, Zheng's behavior of receiving money without issuing a voucher is absolutely illegal. We cannot cover up the aforementioned behavior of him publicly receiving money and the fact that Fang Jinyin and Fu Moumou knew that he had received the money for factory demolition!), which constitutes corruption and is the result of using the illegal "presumption of guilt"!

To sum up, it can be seen that the three basic steps of negotiation, approval (attached list), and receipt (more than 170,000 yuan from Zheng) of the demolition compensation paid by the three defendants in this case are normal and open. Basically There is no "concealing of facts" as alleged by the prosecution. Documentary evidence must not be negated with verbal testimony, and point (Zheng Moumou has no receipt of payment) can be used as a proxy to gain a glimpse of the truth and make a presumption of guilt!

Second , a comprehensive review of the evidence in this case cannot prove the fact of "false reporting":

① There is no "false reporting" problem in this case:

What is "false reporting"? There are no facts but fictitious facts are False report.

But this situation does not exist in this case!

First, the wall of Zheng's factory has been demolished 20 meters, which objectively exists; second, Zheng's 12 It exists objectively that the factory was "stopped" (called to stop construction); thirdly, Zhang Moumou also admitted that this "stop" was notified by him ("I found that Zheng Moumou's factory was under construction... I called Tong Moumou" XX notified Zheng to stop construction"); Fourthly, the reason for the "stop" (due to the demolition of parts according to the plan) and the subsequent reason for not demolishing temporarily due to sewer problems are all caused by the town, and obviously compensation should be given , this also exists objectively; fifthly, Secretary Zhang of the town committee asked Tong to notify Zheng to stop construction of the factory because Zheng's factory was within the red line for demolition, and to prove that part of Zheng's factory was within the scope of demolition, objectively Exist; Sixthly, judging from the actual condition of the road, the first phase of the 30-meter project has been completed, but the new road must be widened to connect with the old road. It is only a matter of time before Zheng Moumou's factory is demolished. This is also an objective reality.

These objective facts fully prove that the money given to Zheng Moumou in this case was not a "false report"!

As for the money being paid first (before demolition) and later (after demolition) , overpayment and underpayment (you can settle according to the actual situation, you can pay more or less), are not related to "false reporting", and have nothing to do with corruption!

As for the prosecution and the Jindong Court, they said: After surveying and mapping, This amount of money is less than half of the estimated losses to be compensated to Zheng. They all want to use this to prove the fact of "false reporting". In this regard, I can only keep my mouth shut. How can the prosecution and Jindong Court confuse "partial demolition" and "total demolition"? Based on this, it can be proved that the wrong accusation and wrong conviction were made! The three defendants demolished parts according to the plan The estimated payment does not take into account the losses of some factories that will not be demolished according to the plan. This further proves the three defendants’ pragmatic attitude and behavior. How could the prosecution and Jindong Court regard the three defendants’ pragmatic behavior as “false reports” Where is the basis?! This is really the opposite! How can it be absurd to handle the case in this way?!

As for the so-called issue of Zheng Moumou being able to receive another supplementary payment during the demolition, first, Zheng Moumou received the payment It is open to the public and it is absolutely impossible to get it again. Secondly, even if it can be "reclaimed", it is only a speculation and cannot be used as evidence to make a final decision.

②There is no issue of "impersonating claiming" in this case:

What is "impersonating claiming"? Receiving money and things that do not belong to one's own is called "impersonating claiming". This situation does not exist at all in this case.

Although the "list" does not indicate Zheng's factory, it does indicate "factory wall demolition and widening" (the word "road" is missing here), and lists three details, and it is due to the road. The extension and widening were subject to the fact that a 20-meter wall was demolished and the construction was "stopped". In the above situation, there is only one factory named Zheng. This is absolutely "exclusive" and it is impossible to misidentify other factories. It is confirmed that it is Zheng's factory, so what Zheng received is from his factory. As for the demolition fees (including those paid in advance), Zheng Moumou did not receive the demolition fees from another factory. Therefore, judging from the content and the identity of the recipient, there is no problem of "impersonating the payment".

Third, regarding the issue of “stolen”.

The prosecution stated that by the time Zheng Moumou received the payment, the crime of corruption had already been constituted. He also said: The whereabouts of the stolen money does not affect the composition of the crime of corruption.

We can also say frankly that since the above-mentioned "false report" and "false claim" do not exist, the crime of corruption cannot be established. However, we still need to analyze the issue of "stolen" to further prove that the accusation of "corruption" is groundless!

① "Stolen" is the object that the perpetrator intends to illegally possess, and is the starting point and destination of the perpetrator. It is obviously inappropriate to divorce it from conviction. Because if it is not for the purpose of obtaining "stolen goods", how can there be intentional illegal possession and how can it constitute a crime of corruption?!

② Regarding the issue of "stolen goods" in this case, there are many issues that can affect the finalization of the case:

First, if the three defendants really have plans to commit corruption, then why not discuss the issue of "sharing the spoils"?!

Second, if the three defendants There is really a problem of corruption. Why is there random transfer of money from one hand to another? There are three versions of the amount of stolen goods that the three defendants confessed to after being tortured and extorted. They all made contrary excuses?!

Thirdly, if the three defendants really received the money, why were all the whereabouts of the stolen money confessed by torture turned out to be negated by the facts after verification?!

As for these question marks, since the prosecution has not yet had sufficient evidence to deny it, it can only be concluded that the three defendants in this case did not commit any acts of corruption or corruption at all. 12. It is inconsistent with the subjective requirements of this case.

In the confession extorted by torture, Tong Moumou said: "Because Shi Moumou and I were very tight on funds to buy land at the time and lacked money, so we wanted to use this method to obtain public funds. ” Then he said: “Actually, it was not me who bought the land. It was my sister who wanted to buy the land. Money was very tight, so I did this.” (Interrogation transcript P6, lines 6-7, March 23, 2005) Tong Moumou in 2005. On March 31, 2010, he was interrogated: "What did you think when you arbitrarily obtained the money of about 170,000 yuan?" Tong replied: "I wanted to use the money of about 170,000 yuan to buy land. At that time, everyone They all thought that if something happened, they would claim the compensation for the demolition of Zheng’s factory, and if nothing happened, we would use it. After all, we all want to keep it as our own.”

But these confessions have been revealed by the following facts. Negation:

First, Tong Moumou’s statement that he “strapped money to buy land for his sister because she was short of money” has been denied by the facts. In this way, Tong Moumou’s confession is the basis for the idea of ??“tabbing money”. No more, so this statement has become a "castle in the air" and is not enough to rely on. What's more, this evidence was obtained illegally through torture and should be excluded!

Secondly, Tong Moumou was interrogated on March 31, 2005. , Tong still did not dare to "reverse his confession" to the prosecution in order to obtain "release on bail pending trial". Even so, an analysis of Tong's words is still untenable:

First, Tong said " The theory that he used money to buy land for his sister because he was short of money has been refuted by the facts that have been found out.

Secondly, Yingtong said, "If something happens, just ask for compensation for the demolition of Zheng's factory. If nothing happens, we will use it. In the end, we all want to keep it as our own." Perhaps, the prosecution believes that obtaining such evidence is "irrefutable evidence" to prove the defendant's subjective intention. In fact, even if Tong Moumou surrendered at that time, it can only prove that the defendant's subjective intention of "illegal possession" did not exist.

Why? Since there is a contradiction between "two natures" in Tong Moumou's sentence, it cannot prove his subjective intention of "illegal possession". Because, in the first situation, "something happened", and Zheng Moumou has publicly received the money, he will definitely not be able to receive any more compensation, and there is no idea in Cong Tong's words that Zheng can receive two amounts of money. Therefore, The money must be given to Zheng Moumou, so that Tong Yushi will not have the problem of possessing the money. Since there are two possibilities, how can we come to the conclusion that "in the end we all want to keep it as our own"?!

Thirdly, Zheng later confessed: I did not give the money to Tong Moumou and Shi Moumou further proved that Tong Moumou's "subjective intention" confession at that time was false!

To sum up, Tong Moumou does not have the subjective aspect to constitute the crime of corruption. Essential elements, therefore Tong Moumou does not constitute this crime!

Trial Judgment

The first-instance judgment of the People's Court of a certain district in a certain city found that some of the facts of the corruption alleged by the public prosecution were basically clear and there was evidence Confirmed, it is believed that the defendants Tong Moumou and Shi Moumou, while serving as the Secretary of the Party Committee of Xiaoshun Town and the Director of the West Development Office of Xiaoshun Town Town, took advantage of their positions in charge of and in charge of the West Development Office of Xiaoshun Town Town to collude with the defendant Zheng Moumou. After conspiring to illegally appropriate public funds by concealing facts and making false claims, the defendants Tong Moumou and Shi Moumou were sentenced to ten years in prison, and Zheng Moumou was sentenced to seven years in prison. Later, because the original trial found that the facts that the three defendants had embezzled public funds were unclear and the evidence was insufficient, and the original trial also violated legal procedures, the Intermediate People's Court of a certain city in Zhejiang Province ruled to revoke the original verdict and remand the case for a new trial. After the case was remanded for retrial, the judgment of the XX District Court was the same as the original judgment which was revoked. Afterwards, the defendant appealed to the Intermediate People's Court of XX City. After hearing the case, the Intermediate People's Court revoked part of the judgment of the People's Court of XX District of XX City, Zhejiang Province, and changed the sentence of defendants Tong Moumou, Shi Moumou and Zheng Moumou. For the crime of misappropriation of public funds, the defendant Tong Moumou and the defendant Shi Moumou were exempted from criminal punishment, and the defendant Zheng Moumou was sentenced to two years in prison.

Classic Commentary

The crime of corruption refers to the behavior of state functionaries taking advantage of their positions to embezzle, steal, defraud or illegally possess public property by other means. From the subject point of view, Tong Moumou and Shi Moumou are state agency workers. Although Zheng Moumou does not have the status of a typical state worker, if the above two people constitute the crime of corruption, they also constitute* **Possibility of same crime. From an objective and subjective perspective, the evidence is not conclusive and sufficient, and it cannot be concluded that they deliberately defrauded and illegally possessed public property. First, the behavior of Tong Moumou and others does not meet the behavioral characteristics of "cheating". Fraud means that the perpetrator takes advantage of his position, adopts legal forms, fabricates facts or conceals the truth, and illegally possesses public property. In this case, the actor reported the payment and did not conceal it. There was also an objective and true reason for the payment. The behavior of Tong and the other three people neither fabricated facts nor concealed the truth, so they were not allowed to do so. In line with this characteristic, there is no "cheating" behavior. Second, the whereabouts of the money also affects the composition of corruption crimes. In the crime of corruption, the whereabouts of the stolen money is evidence to prove the elements of the crime. Without it, other reasonable doubts cannot be ruled out, and it cannot be reliable and sufficient. In this case, the three people’s confessions regarding the amount of the stolen money were inconsistent, and the whereabouts of the stolen money were also denied by the evidence. The whereabouts of the stolen money were unknown and were not investigated, so nothing could be proved. These unknowns directly affected the establishment of the criminal behavior of these three people. Third, the evidentiary materials in this case did not meet the legal standard of proof. In this case, the investigators used torture to extract confessions, and the prosecutors used instruments for interrogation for a long time. Therefore, the confessions made by Tong Moumou and three others during the detention period cannot be accepted and should be excluded according to my country's illegal evidence exclusion rules. Moreover, the evidence in this case cannot corroborate, support, or explain each other, and the contradictions in the middle cannot be explained or eliminated. Therefore, the behavior of Tong Moumou and three others does not meet the constituent elements of the crime of corruption and cannot constitute the crime of corruption.