Viewpoint... Criminal case of the crime of obstructing testimony caused by a villa-finally exempt from criminal punishment by discretionary non-prosecution.

Published:

2023-05-17

Words The crime of obstructing testimony is not a common crime in the criminal field. It is a high incidence of joint crimes involving gangs and other socially harmful crimes. In this case, the crime was implicated in ordinary civil cases, from the civil court to the procuratorial organ, and from the procuratorial organ to the public security organ, and finally the public security organ filed the case for investigation. The main parties in this case have gone through judicial procedures such as civil trial, protest by procuratorial organs, criminal detention, bail pending trial, and several arraignments by judicial organs. It took more than three years (there was also force majeure) and finally in 2023, this spring, which came earlier than before, obtained the procuratorial organ's discretionary decision not to prosecute and was exempted from criminal punishment. The three parties involved in this case looked callous and mixed when they received the legal documents not to prosecute, as if their happy and excited heart had only existed for a moment and had been taken away by three years of suffering. After all, they were three families, the elderly in need of care and the children who had just entered the school gate. In the face of the sudden punishment, the defender of this wooden mood sincerely understood. Over the past three years, you and I have had mixed feelings. Fortunately, we came to the newspaper in early spring. We are willing to laugh in the bushes when the mountain flowers are in full bloom. Application of law Article 207 of the the People's Republic of China Criminal Law, [Crime of Obstructing Testimony] Whoever uses violence, threats, bribery, etc. to prevent a witness from testifying or instigate others to give false testimony shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. [crime of helping to destroy or forge evidence] whoever helps the party concerned to destroy or forge evidence, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. Judicial personnel who commit the crimes mentioned in the preceding two paragraphs shall be given a heavier punishment. This case applies the constitutive elements of the crime of "(the party in the civil trial) instructing others to give false testimony" and the second paragraph "helping the party to forge evidence" in the first paragraph. Detailed explanation of the case At the beginning of 2016, the man Chen Mou and the woman Zhou Mou (both surnames and names in the article are pseudonyms) of the parties to the case went to court for marital disputes. The court found out the facts and confirmed that the relationship between Chen and Tuesday did break down. The marriage relationship was dissolved according to law. In the judgment, corresponding judgments were made on the child support and property division of the two, and the two divorced. After the judgment came into effect, the woman Zhou thought that the division of property involved in the divorce case was unfair, so she approached the man Chen several times and asked Chen to make up for his emotional loss and re-divide the property. Zhou asked for a new price division of Chen's villa, and made it clear that he had part of the economic rights and interests in Chen's villa, but the villa where Chen lived was Chen's pre-marital property, and the property rights had nothing to do with Zhou. Zhou said that the villa was indeed purchased by Chen before marriage, but after marriage, the two shared the loan and had an interest in the appreciation of the property, chen Mou said that after their marriage, they had been taking the loan by themselves. Zhou Mou had no right to claim the rights and interests of the villa, so far there was a stalemate. At this time, Chen's economic situation was not good, and he felt uneasy in the face of Zhou's every attempt to block the door, so he came up with countermeasures. One was to transfer the villa involved in the case to his female friend Pan in the name of selling. Second, Chen Mou found his friend Zhu Mou and asked Zhu Mou to contribute to Pan Mou, forming a flow of house purchase money, completing the house purchase contract and transferring the ownership. The third is to transfer the house money received back to Zhu in the name of returning the earlier loan. Chen, Pan, and Zhu signed two agreements. One is the "House Sales Contract" between Chen and Pan. Second, Chen returned to Zhu in the name of repayment of the "loan agreement", however, the "loan agreement" is not a loan to buy a house, but the early two people have business dealings, Chen had borrowed money from Zhu for business. According to this, complete a "story"-selling the house to pay off the debt. In mid -2016, Chen's ex-wife Zhou learned that the villa had been sold to Pan, and the money from the sale was used to repay Chen's business arrears to Zhu in the earlier years, and a complaint was filed in court. The court was asked to invalidate the "Housing Sales Contract" and the "Loan Agreement", and to find out that his ex-husband Chen, Pan and Zhu maliciously colluded to damage their legitimate rights and interests, but in the absence of direct evidence, both trials were unsuccessful. From then on to 2018, Zhou found the court several times to say that the judgment was unfair and asked the court to deal with it, and repeatedly found the procuratorate to ask the procuratorate to protest. During this period, Zhou provided the judicial organ with relevant evidence of the relationship between his ex husband Chen and the buyer Pan, and reflected the deep relationship between Chen and Zhu to the procuratorate, which finally made the procuratorial organ have reasonable doubts. The procuratorial organ found Chen, Pan and Zhu several times in accordance with the law to understand the situation, made inquiry records, and found clues. In 2019, the procuratorial organ held that the "housing sales contract" and "loan contract" of Chen, Pan and Zhu were untrue and forged, and made the two-level courts make a judgment on the basis of which they should protest, and the situation involved in the case was suspected of a criminal offence, which was immediately transferred to the public security organ for investigation of the crime of obstructing testimony. After the public security organ filed the case, Chen was detained for the crime of obstructing testimony, Pan was released on bail pending trial, and Zhu was taken criminal compulsory measures for the crime of helping to forge evidence. Defense opinion The defender accepted the defense entrustment to the main party Chen, and found the key points of the defense on the basis of a detailed understanding of the case, consulting a large number of materials such as civil case files, etc. The defender believed that the parties involved in the case did hinder the testimony, but their behavior Whether it has reached the level of severe criminal law and whether the criminal responsibility of the three parties should be investigated for the crime of obstructing testimony is debatable and discussed. For this reason, the defender communicated with the case handling personnel of the public security organs and procuratorial organs many times and submitted a written "defense opinion", which was finally recognized by the procuratorial organ after many twists and turns, prompting the procuratorial organ to make a discretionary decision not to prosecute in accordance with the law. it has achieved a high-quality and effective defense for the parties in this case. The defender of a criminal case is slightly different from the agent of a civil case. Criminal cases require the defender to have a detailed understanding of the origin of the provisions of the criminal law, the scope of application, the cases in judicial practice and the process of handling criminal cases by judicial organs, and to have a thorough understanding of the original intention, mode and consequences of the parties involved in the case, and in the first stage, the investigation stage has a preliminary legal judgment on the whole case. "Look at the back and forth flow between facts and norms" and find the most favorable defense point for the parties in the details of the case. The following defender has compiled excerpts from the "Defense Opinions" and a summary of the case into a document to record the case. According to the application search of the crime of obstructing testimony in the province in recent years, this crime is not a high-incidence crime. Taking our city as an example, the number of cases concluded is about 23, of which 22 occurred in the trial process of criminal cases. In the fields of provocation, intentional injury, and underworld crimes, there are almost no crimes of obstructing testimony in the purely civil field, which should be accidental in this case. The crime of obstructing testimony is stipulated in Article 207 of the Criminal Law, which belongs to one of the crimes of obstructing justice in Section 2 of the crime of obstructing social management order in Chapter 6 of the Criminal Law. The legal interest violated by this crime is judicial order. This crime is a criminal and dangerous crime, and the constituent elements of the crime state that "preventing witnesses from testifying by means of violence, threats, bribery, etc." and "instigating others to give false testimony" constitute this crime. The perpetrator's behavior must reach the serious degree of direct infringement of the judicial order before he can file a case for prosecution. In this case, there was no situation of "preventing witnesses from testifying by means of violence, threats, bribery, etc. The crime of obstructing testimony is one of the constituent elements "instigating others to give false testimony": "instigating" in the context of the interpretation is, directing and ordering. In judicial practice, there are two interpretations and views on "instigating others to perjure. 1. "Inciting others to give false testimony" means instigating others to give false testimony to judicial organs by means of violence, coercion, bribery or other illegal means equivalent to the above. This view holds that the perpetrator must have committed an illegal means of instigating perjury, and that the seriousness of the illegal means is equal to the degree of illegality of "violence, coercion and bribery", one of the constituent elements of the crime. 2. "Inciting others to give false testimony" means that the perpetrator must instruct others to provide false testimony to the judicial authorities. The key is to get others to provide forged evidence to the judiciary on their own initiative through the direction and command of the perpetrator. The application of the constituent elements of "instigating others to perjure. The investigative agency believes that the "House Sales Contract" and the "Loan Agreement" issued by the perpetrator Chen to the court are false, that is, they have constituted the constituent elements of "instigating others to give perjury" in the crime of obstructing testimony. It is particularly emphasized here that "instigating others to give false testimony" means that the perpetrator must instruct others to provide false evidence to the judicial authorities. The perpetrator Chen made false evidence himself, and asked Zhu or others to help in the process. In the end, Chen himself provided the false evidence to the court. In such a situation, it is not for the "other person" to give perjury to the court, so it can not be determined that Chen has the act of "instigating others to give perjury" and can not constitute the crime of obstructing testimony. The false evidence produced by the perpetrator himself is submitted to the court and the act of ordering others to give false testimony to the court are two completely different acts. The former is an illegal act and the latter is a criminal act. The legal consequences of different behaviors are different. In this case, it cannot be determined that this behavior is a criminal act because Chen submitted two false evidences to the court. This is a mechanical understanding of the crime of obstructing testimony. 1, Chen's disposal of real estate behavior. First of all, it must be clear that Chen is disposing of his own legally owned property. The property rights of the real estate sold by Chen are clear. From the perspective of the core value of house ownership, its disposal of the real estate does not involve any legal issues. Second, Zhou, the plaintiff in the civil case, did not make a claim on the property rights of the house, but only believed that she had jointly repaid the loan during the marriage with Chen, and claimed rights and interests in the value-added part of the house, while the value-added part of the house could not be equated with the ownership value of the house itself. From the perspective of ownership of the core value of the house alone, Chen has the right to dispose of the property. Even if Chen's disposition of the real estate is flawed and infringes on Zhou's rights and interests, Zhou can fully exercise the right of civil relief and advocate Chen's compensation. At the end of the day is the divorce property division due to the appreciation of the house and give it the corresponding compensation, and Chen Mou disposition of the property has nothing to do. Third, whether Chen Mou sold the house to Pan Mou is a real transaction and whether there are power defects belongs to the field of civil and commercial affairs, because the housing transaction has not been completed through litigation, and even if there is a false transaction, it has not infringed the judicial order. Even if Chen submitted the false transaction contract to the court, the court found that the problem could not be identified after examination, and the illegal act could be punished by judicial punishment. After all, Chen's disposition is his own property, did not rise to the height of crime. More importantly, there was no lawsuit when Chen disposed of his property, that is to say, Chen did not have the subjective purpose of giving false testimony to the court or ordering others to give false testimony. To sum up, the core point of this case is that Chen Mou disposed of his own legal property. Even if the disposition of the property infringes on Zhou's interests, it is completely possible to protect his rights and interests through civil litigation. Even if the real estate transaction is determined to be false, it will not reach the level of criminal accountability. 2, Chen and Zhu signed the "loan agreement" behavior. The defender believes that Chen and Zhu signed the "Loan Agreement" and submitted this agreement to the court as evidence of his property impairment, which is the core issue of this case. To recognize the core issues of Chen's crime of obstructing testimony in this case, we must judge the purpose, behavior, and results of Chen's signing of the "Loan Agreement" with Zhu in accordance with the law. First of all, the purpose of Chen and Zhu signed the "loan agreement" is to prove that their property impairment, to prove that their property impairment can be reduced in the divorce proceedings with Zhou. Such original intention and purpose, under the premise of presuming that the loan agreement is not true, should be characterized as malicious collusion in civil law to infringe upon the property rights and interests of Zhou, a third party. In civil law, there are a number of remedies for malicious collusion against the property rights of third parties, which are not repeated here. Even if the court finally finds that it is malicious collusion to infringe upon the property rights and interests of a third party, it may not recognize this evidence, and the illegal acts can be punished by means of fines, judicial detention and so on. Secondly, Chen and Zhu signed the "loan agreement", which is the key to determine whether the case is classified as the crime of obstructing testimony. As mentioned earlier, the key to "instigating others to give false testimony" lies in directing and ordering others to provide false and untrue evidence to the judicial organs. In this case, the loan agreement was issued by Chen and submitted to the court by himself. In the case that Zhu's signature in the agreement could not be identified, Chen could not direct and instruct Zhu to provide false evidence to the court. Even if Chen submitted a false "loan agreement", this agreement was provided by Chen himself, and there was no objective behavior of "directing and ordering" others. Because the agreement is neither to instruct Zhu to make, nor to instruct Zhu to submit it to the court, nor to let Zhu confirm the validity of the agreement through litigation. You can't just ask Chen to ask Zhu to sign a name on the "Loan Agreement", it is considered to be a criminal act of "instigating others to give perjury" in the crime of obstructing testimony. Instead, we should synthesize the whole case and recognize who made this agreement and whether it has reached the standard of responsibility for ordering others to provide perjury to the court. Chen's own act of submitting the loan agreement to the court cannot be regarded as a criminal act of "ordering others to give perjury. Even if Chen provided false "housing sales contract" and "loan agreement" as civil evidence in the civil trial, then the act of providing false evidence did not meet the standard of criminal law accountability. According to the principle of modesty of criminal law, even if the civil evidence in this case is found to be false, the trial court should deal with it according to the civil procedure law. According to the principle of legally prescribed punishment for a specified crime in the criminal law, whether this case constitutes an element of "violence, coercion, bribery and other methods to prevent witnesses from testifying or instigate others to give false testimony", and whether the result of the crime has reached the level of serious violation of judicial order, it needs to be carefully judged by judicial organs. After all, it is very rare to involve criminal crimes in civil cases, especially in cases caused by marital property in this case. Conclusion Ultimately, the case was concluded with a discretionary non-prosecution. For the parties concerned, it may not be a sparse result. After all, the long road of litigation is always so difficult. Besides, the three families have to be relieved after the case is closed. It is rare for criminal cases to be terminated at the stage of examination and prosecution, but this case is not the inevitable result of the "competition" between the prosecution and the defense, because no law can be a golden rule, and the right and wrong, black and white of any case are so complicated and confusing. Of course, this is not the accidental result of the Universiade. The discretion not to prosecute itself has already explained the hardships. The late senior director Wang Guangren once said that "to be a lawyer, to be a person first", between people, between lawyers and clients, with a heart of compassion and empathy, as a lawyer, for the sake of the case, for the sake of people often "the night is always hard to see, lonely clothes count cold stars", in which our awe of the law will have a warm return.

Key words: