Complete public prosecution opinion on bribery case

Case Brief:

On March 11, 2009, a People's Procuratorate in Chifeng City filed a lawsuit against Yang in a People's Court for committing the crime of accepting bribes and offering bribes. The indictment alleges: Yang XX and Sun XX had business conflicts. In order to control Sun XX, on December 19, 2007, Yang XX, then deputy director of the XX Forestry Public Security Bureau, assigned the criminal police of the bureau. The captain, Shao Moumou, went to Sun Moumou's mining site together and wanted to impose administrative penalties on Sun Moumou and even pursue criminal liability on the grounds that Sun Moumou's mining destroyed forest land. In order to avoid legal sanctions, Sun proposed to find someone else to punish him. Later, Yang discussed with Shao and asked Sun to pay 100,000 yuan to settle the matter. The next day, Sun handed Yang 100,000 yuan in cash. Shao later used the money to repay his personal housing loan of 81,875 yuan, pay a deforestation fine of 14,870 yuan for his grandson, and squander the remaining 3,255 yuan on his own.

In early December 2007, Sun's mining site was sealed by the Bureau of Land and Resources due to illegal mining. Sun entrusted Yang to deal with the matter. Yang then approached Guo Moumou, the captain of the Supervision Team of the Bureau of Land and Resources (handled in a separate case). Ask him to reduce the punishment and lift the seal as soon as possible. Guo took advantage of his position to meet Yang's request within three days. After Yang paid the fine for Sun, he gave Guo 10,000 yuan as a thank you, and the 10,000 yuan was used by Guo for family living expenses.

On August 29, 2008, based on reports from others, the procuratorate summoned Yang and Shao respectively. On August 31, Yang and Shao were placed under criminal detention, and their arrest was approved on September 12.

On March 24, 2009, a people's court held a public hearing on this case. I accepted Yang's entrustment and appeared in court to defend him.

Defense opinions:

1. The investigation agency’s case-handling procedures are illegal and the evidence collected is not legal, which is mainly reflected in the following aspects:

1. 2008 The investigation agency summoned Yang to the procuratorate at 8:00 a.m. on August 29, 2018, and detained him at 10:00 a.m. on August 31. The detention period lasted for 50 hours, violating Article 92 of the Criminal Procedure Law. Clause 1 stipulates that "the maximum time for summons and detention shall not exceed 12 hours", which essentially detains the defendant Yang Moumou in disguise to extract a confession.

2. The investigation agency extended the detention period at will, violating the mandatory provisions of the law. After Yang was arrested, the investigation agency did not transfer the case for prosecution within the statutory time limit. On October 30, 2008, the city procuratorate approved an extension of one month, and on December 7, 2008, the autonomous region procuratorate approved an extension of two months.

The case of Yang Moumou being suspected of accepting and offering bribes only involved the bribery of 100,000 yuan and the bribery of 10,000 yuan. The case was not complicated. The extension should not be granted under statutory circumstances that do not comply with the provisions of Article 124 of the Criminal Procedure Law, "cases with complex circumstances that cannot be concluded upon expiration of the time limit". If the first extension barely relied on legal provisions, then the second extension had no legal basis. Article 126 of the Criminal Procedure Law clearly defines the circumstances under which the provincial procuratorate may approve another extension: (1) major and complex cases in remote areas with very inconvenient transportation; (2) major criminal group cases; (3) Major and complex cases where crimes are committed; (4) Major and complex cases where the crime involves a wide range of crimes and it is difficult to obtain evidence.

Let’s compare, which article does this case comply with? None of them conform to it, so why can it be postponed again? This shows that the investigative agencies are abusing judicial power and ignoring human rights, including the superior procuratorate.

3. Changing places of detention at will. The case of Yang Moumou accepting and offering bribes was just a general job-related crime. During the entire investigation process, he changed 5 detention centers. He was detained in the Zalut Banner Detention Center for more than 20 hours on December 2-3, 2008, and then was transferred to Naiman Banner. The detention center shows its arbitrary nature. This not only shows that the case-handling agency's law enforcement is not standardized, but also reflects the real purpose of the case-handling agency, which is to use the environment of the detention center to achieve the purpose of corporal punishment and torture in disguised form to force Yang Qingda to submit.

4. The evidence collection procedure is illegal. Illegal evidence collection procedures are not only reflected in the use of disguised torture to extract confessions and induce confessions when interrogating criminal suspects. Most of the interrogation transcripts were not fully, synchronously, and uninterruptedly audio or video-recorded as required by the Supreme People's Procuratorate, and the evidence obtained was not objectively authentic.

In addition, the same is true for the questioning of witnesses. There are also illegal detentions of witnesses, violent evidence collection, and illegal evidence collection behaviors of forcing witnesses to testify according to the wishes of the investigators.

2. The public prosecutor’s accusation that defendant Yang Moumou was suspected of accepting bribes cannot be established.

It is true that the defendant Yang XX withdrew 100,000 yuan in cash from Sun XX, but this was a profit that should be shared under the premise of partnership mining and was a normal economic transaction among the partners. It is essentially different from taking bribes.

On December 6, 2007, Sun Moumou was illegally mining without a license and was discovered by the Supervision Team and the Political and Legal Affairs Committee of the Bureau of Land and Resources during a work inspection (this fact was found in the Bureau of Land and Resources’ Illegal Case Filing and Approval Form and The inquiry records of Zhang Moumou, the deputy secretary of the Political and Legal Affairs Commission, could confirm this), so the mines were sealed. In order to resume production, Sun approached Yang through the middleman Zhang and asked him to help solve the problem. He also promised that they would operate a joint venture in the future, with a 50-50 split.

When Yang and Sun negotiated the partnership, both parties agreed that Yang would invest all of his power supply facilities and magnetic separation equipment into shares, and send Yang, Zhao and others to participate in management.

On December 18, 2007, seven or eight days after Sun resumed production, a large amount of ore was produced, but Sun did not overdistribute profits to XX as agreed, and Yang XX The personnel sent could not effectively restrict Sun, so he and Zhang went to Sun and asked to settle the accounts. Sun Moumou proposed that the income before the 18th should be used to repay the debt. If the material on the mining line is not mined, there will be an extension of two days, and it will be divided into 50 and 50 starting from the 20th; if the material on the mining line is mined, it will be divided from December 18 A 50-50 split must be implemented. But on the evening of December 18, Sun broke his promise and mined the ore on the mining line behind Yang's back, transferring 46 trucks of ore (Sun admitted 40 trucks in the transcript, and the prosecutor's prosecution opinion can also confirm this. 1 point), each vehicle has a conservative load of 40 tons, 175 yuan per ton, and a total payment of more than 320,000 yuan. After deducting normal expenses of 20,000 yuan, each person should receive 150,000 yuan in ore payment. In the end, through negotiation, Yang Moumou agreed to only ask for 100,000 yuan, which was already the greatest tolerance and concession. This fact is supported by the receipt of 100,000 yuan signed by Sun and Yang on December 20, and the record provided by Sun that "Sun XX received 100,000 yuan, and Yang XX received 100,000 yuan." The accounting list of "Xiang Ping" is corroborated, which is enough to prove that the 100,000 yuan received by Yang is a partnership share, not a bribe requested by Yang.

From the above facts, it is not difficult to see that Yang Moumou did not "take advantage of his position to extort other people's property and seek benefits for others", which does not meet the requirements of the crime of accepting bribes as stipulated in Article 385 of the "Criminal Law". Objective elements.

Although the public prosecution agency presented a large amount of accusatory evidence during the trial, the main evidence had problems such as illegal evidence collection procedures and contradictory evidence content. It could not form the proof system required by criminal proceedings. The charges were cannot be established.

3. Yang Moumou’s behavior does not constitute the crime of bribery.

On December 9, 2007, when the Bureau of Land and Resources sealed Sun’s mining site, when Yang approached Guo, the captain of the supervision team of the bureau, for coordination, Guo proposed that at least After paying a fine of more than 20,000 yuan, Yang left 20,000 yuan for Guo and asked Guo to look at the arrangements and not say anything if it was not enough. However, Guo Moumou reported the case to his work unit and decided to fine him 15,000 yuan. The remaining 5,000 yuan was not returned to Yang Moumou in time, and Yang Moumou did not bother to ask for it back. This can only show that there is a creditor's right and debt relationship of RMB 5,000 between Guo and Yang, and it cannot be concluded that Yang "gave property to state workers in order to seek improper benefits." Assuming that Yang Moumou had the motive to give property to Guo Moumou, the amount did not meet the legal amount standard for constituting a crime and should not be considered a crime.

During the trial, the public prosecution only produced the transcript of the subsequent interrogation with Guo to prove Yang’s bribery. However, the content of his statement was contradictory to Yang’s confession, and there was no other evidence to support it. , this evidence becomes isolated evidence and cannot be used as a basis for determining facts. Moreover, it has not yet been determined whether the bribery case of Guo Moumou constitutes a crime, so how can it be determined that Yang Moumou bribed someone? If the bribery case of Guo Moumou is withdrawn, the case of objection is not prosecuted, or the people's court finds Yang not guilty, Yang Can someone's bribery still be established? Obviously it cannot be established, because bribery and bribery are twin brothers that are interdependent and cannot be identified in isolation. Moreover, Yang Moumou's behavior neither had the subjective will to pay bribes nor the objective manifestations of paying bribes, and did not meet the statutory requirements for the crime of bribery.

Judgment result:

After the trial, the court of first instance did not adopt the defense point of view of the defender, and sentenced Yang to be guilty of bribery and sentenced to five years and six months in prison; to bribery, he was sentenced to He was sentenced to six months in prison and punished concurrently for several crimes. It was decided to execute a fixed-term imprisonment of five years and eight months.

Yang Moumou was dissatisfied and appealed. The court of second instance considered that the facts were unclear and the evidence was insufficient, and remanded the case for retrial.

During the retrial, the defender still insisted on the defense point of view of innocence. The court adopted the defense opinion that the 100,000 yuan paid by Sun Moumou was a dividend payment for stock purchase and did not constitute the crime of accepting bribes. The court found that Yang Moumou He was found guilty of bribery and sentenced to be exempted from criminal punishment. Yang Moumou served the sentence.