Point of View... The defense path for the first defendant to seek the identification of an accessory.
Published:
2024-07-24
The order set out in the indictment is only a temporary judgment of the procuratorial organ, not the final definition of criminal responsibility. The criminal responsibility of different accomplices still needs to be found and judged by the court through the trial, and still needs to be bound by the standard of judgment of accomplice responsibility. Even when the defendant is the first defendant, as long as he reasonably grasps the judgment standard of accomplice, comprehensively reviews the whole process of joint crime and accurately chooses the defense path, he still has the opportunity to strive for the identification of accessory for the first defendant in the indictment.
1. Foreword
In a joint crime, when the procuratorial organ prosecutes, the order of the defendants stated in the indictment is the preliminary division of the criminal responsibility of different accomplices by the procuratorial organ. When the procuratorial organ initiates a public prosecution, it divides the so-called "first defendant" and "second defendant" according to the size of criminal responsibility. If the procuratorial organ believes that it should bear the main responsibility or direct responsibility, it is often listed as the first in the indictment. The defendant, and the person with relatively light responsibility or secondary or indirect responsibility is listed as the second defendant. Generally, the first defendant will be heavier than the second defendant at the time of sentencing. In judicial practice, it is also easy to cause the collage between accomplices and mutual prevarication. In the process of undertaking a joint crime case, the author often encounters the defendant asking the author: "He is obviously more important than me, why is he behind me?" He even said directly: "I want to appeal. I don't ask for a lighter sentence, but the one behind me must be as heavy as me."
However, the order stated in the indictment is only a temporary judgment of the procuratorial organ, not the final definition of criminal responsibility. The criminal responsibility of different accomplices still needs to be found and judged by the court through the trial, and still needs to be bound by the standard of judgment of accomplice responsibility. Even when the defendant is the first defendant, as long as he reasonably grasps the judgment standard of accomplice, comprehensively reviews the whole process of joint crime and accurately chooses the defense path, he still has the opportunity to strive for the identification of accessory for the first defendant in the indictment.
2. brief
Take the crime of concealing and concealing the proceeds of crime and its proceeds undertaken by the author himself as an example. A migrant worker, introduced by a friend, strayed into the running gang, connected with the line through WeChat, and jointly carried out card checking and mobile phone transfer with other gang members. A certain A, knowing that the funds received were illegal and criminal proceeds, did not close them in time and still used another person's bank account to receive and transfer criminal funds. After investigation, it was found that the stolen money was transferred to 2 million yuan by the hand of a certain A, and a certain A made a profit of 30000 yuan.
In this case, after accepting the entrustment of a relative, the author met with a person for the first time and learned the general context of the case. A has no objection to the charges and facts charged by the public prosecution organ for covering up and concealing the crime, but has objections to being listed as the first defendant and to his role and status in the joint crime. A thought that he was only an ordinary business personnel, and after participating in the crime, he only carried out the transfer work according to the instructions of his family, playing a role of uploading and distributing, hoping to be given a lighter punishment.
Judgment standard of 3. principal and accessory
Throughout the criminal legislation of the civil law system, the perpetrator is usually used as a template to think about the positive offender in the joint crime. For example, article 25, paragraph 1, of the German criminal code: "anyone who commits a crime himself or through another person shall be punished as a positive offender." Article 60 of the Japanese Penal Code: "If two or more persons jointly commit an offender, all of them are the positive offender." Article 28 of the Criminal Law of Taiwan Region of China: "Any person who commits a crime jointly by two or more persons is a positive offender." In a nutshell, according to the different division of labor in joint crime, the person who directly commits the crime is regarded as the main offender with heavier criminal responsibility.
Unlike the general provisions of the civil law system, the way of stipulating joint crime in our country is inherited from the Soviet Union, influenced by the concept of the principal offender of the unification of Italian criminal law, showing a two-tier structure. In the division of the types of accomplices, the division of labor is used to distinguish between the abettor and the accomplice according to the different roles played in the joint crime, which is different from the unified system of the principal offender. However, in the determination of criminal responsibility, the role classification method is adopted. In fact, what determines the size of criminal responsibility is the size of its role in the joint crime. The principal offender with a greater role, and the accessory offender with a smaller role. Therefore, on the one hand, the role of the defendant in the criminal gang should be accurately assessed; on the other hand, the entire joint crime should be measured from a holistic perspective, especially the part of the prosecuted crime should be measured in all crimes, and the criminal gang should be accurately determined. The responsibility of a large criminal group. Even though the first defendant may act as a leader in a small criminal group, looking at the entire criminal group, it is entirely possible that he is in the position of a minor accessory.
The People's Court's Case Library No. 2023-04-1-179-009 has clearly listed four criteria for judging the principal and accessory in joint crimes: "Generally speaking, the principal and accessory can be judged from the following aspects: 1. Look at the cause and who is the initiator; 2. Look at the implementation of the behavior, who is the main implementer; 3. Look at the causality, whose behavior is more responsible for the result of the crime; 4. Look at the distribution of the proceeds of crime, etc." The author believes that, according to the actual situation of joint crime and the provisions of China's joint crime, the judgment criteria should also include: 5. whether in the joint crime to play a leading, organizational leader role; 6. whether in the joint crime to play a planning, planning the role of the think tank.
4. defense effect
Under the premise of accurately grasping the identification standard of the principal accessory, the author carefully consulted the file materials of the whole case, and made a comprehensive investigation of the overall situation of the case. According to the author's understanding, because Yunnan is adjacent to the electric fraud stronghold in northern Myanmar, the geographical characteristics make a large number of Yunnan criminals gather with each other to form a running group, and they are in the superior leadership in the running group. Specific to this case, the main participants are also from Yunnan, which is a running gang composed of Yunnan criminals. Only one of the criminal gangs is a foreigner, who is not familiar with Kunming and does not belong to the core leadership of the gang.
After careful study and judgment, the author determined the defense idea and put forward the defense opinion that the defendant was an accessory to the trial court. First of all, the author from the time analysis, the defendant a contact with card-related crimes later than the rest of the defendant, indicating that a is not the initiator of the crime. Secondly, from the perspective of the relationship between a certain A and other defendants, as a foreigner, a certain A does not play a planning and preparatory role in the strong regional "running points" gang, let alone a leadership responsibility, and cannot be a leadership role. Finally, a certain A is not the only perpetrator of the gang and does not have a critical causal force for the completion of the crime. Judging from the role played by a certain A in the initiation, decision-making and implementation of the crime in this case, it only plays a secondary and auxiliary role and should be an accessory.
In the end, after the author argued hard, the people's court finally adopted the author's defense opinion, identified a certain A as an accomplice, and sentenced him to four years and three months' imprisonment in the first instance. As compared with the sentences of the other defendants, there is no aggravation of the punishment for being listed as the first defendant.
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