Viewpoint | Effective Defense ---- Doubts not to prosecute
Published:
2022-04-18
Doubt not to prosecute, also known as insufficient evidence not to prosecute. In a fraud case handled by the author, the procuratorial organ strictly controlled the evidence and did not prosecute the case for insufficient evidence-that is, no prosecution in doubt. 1. brief After investigation, it was found that 11 people, including Liu Moumou and Wang Moumou, premeditated to purchase waste aluminum plates from a certain color printing company. They cheated the color printing company by tampering with the weighbridge and agreed to share the stolen money equally among 11 people. On December 20, 2019, 11 people including Liu Moumou drove to the vicinity of the color printing company, and Liu Moumou went to the color printing company to discuss the purchase of waste aluminum plates. After negotiation, the purchase price was 18000 yuan per ton. The next day, Liu Moumou came to pull the goods. Liu Moumou and his three men went to the weighing place near the color printing company and agreed with the weighbridge owner to give the weighbridge owner 4000 yuan a benefit fee. The weighbridge owner agreed that they should install cheating equipment on the weighbridge electronic display. The next day to the color printing company after loading to the weighbridge weighing. When weighing, Wang Moumou and others used the remote control to control the electronic display of the weighbridge, weighing 8 tons, and should pay 144000 yuan for the goods. Liu Moumou and others asked for cash payment. The color printing company asked for the goods to be deposited into the company's account. The company accountant accompanied Liu Moumou and others to deposit in the bank. During this period, Liu Moumou and others urged the truck driver to leave as soon as possible. The truck driver drove not far away and was intercepted by the color printing company. At 13: 00 on the same day, the color printing company took the truck driver to the weighing place to weigh. Wang mou used the remote controller to control the weighing scale again, and the weighing was still about 8 tons. after the weighing was completed, the color printing company still refused to let the truck driver drive away. Liu and others worried about the incident fled the scene. On the third day, it was re-weighed, showing that the weight of the goods in the car was 24.44 tons, and the difference between the two days was 16.44 tons. According to the price determination center, the market recovery price of waste aluminum plates was 9000 yuan per ton. Therefore, it was determined that the amount of fraud by Liu Moumou and others was 75960 yuan. According to the personnel of the color printing company, Liu Moumou and others bought waste aluminum plates from the color printing company before. Because Liu Moumou and others were suspected of cheating in weighing, the color printing company has been trying to settle accounts with Liu Moumou and others. This time Liu Moumou and others contacted again. The color printing company wanted to quietly use this transaction to expose Liu Moumou and others and recover the losses. Therefore, the above transaction process was established. After the case, Liu and others reached a compensation understanding agreement with the injured unit with several times the amount of compensation involved. To sum up, it is determined that the behavior of 11 people including Liu Moumou has violated Article 266 of the the People's Republic of China Criminal Law, suspected of fraud, and transferred for review and prosecution. 2. processing results Liu Moumou, who was not prosecuted, did not meet the conditions for prosecution. According to the provisions of Article 175, paragraph 4, of the Criminal Procedure Law, it was decided not to prosecute Liu Moumou. 3. case analysis The defender pointed out that the "Prosecution Opinion" found that 11 people including Liu Moumou had defrauded 75960 yuan, and the facts of the crime amount were unclear and the evidence was insufficient. The weight of the goods involved is in doubt, and there is great uncertainty in the determination of the amount of crime. The investigation organ in this case weighed the difference between December 21, 2019 and December 22, 2019 as the number of crimes. However, the evidence in the volume cannot prove that the goods involved in the case maintained identity and fixity in multiple weighings, and cannot guarantee the certainty of the calculation of the amount involved when the weight difference cannot be confirmed to be certain. The testimony of the employees of the color printing company and the truck driver both confirmed that after the truck driver was intercepted and returned to the color printing company on December 21, 2019, the truck driver stopped for dinner, during which the vehicle involved was placed in the courtyard of the color printing company, and the rear truck driver parked the vehicle in front of the office building of the color printing company under the supervision of the staff of the color printing company. until the morning of December 22, 2019, 2019, the vehicle and goods involved were weighed for the third time. Therefore, from December 21, 2019 when the truck driver went out to eat to the morning of December 22, 2019, the vehicles and goods involved in the case were parked in the hospital of the victimized company and were left unattended. The color printing company did not provide surveillance video to confirm the storage of the vehicles and goods involved in the case. Although two employees confirmed that the goods in the vehicle had not been moved, there was no objective evidence to support it. In addition, the two witnesses are employees of the victimized company and have an interest in the case. Their testimony is highly subjective, and their objectivity and authenticity are in doubt. Therefore, the facts of the determination of the amount of the crime are unclear and the evidence is insufficient. If reasonable doubt cannot be ruled out, the evidence is in doubt, and an explanation should be made in favor of the defendant. It is suggested that Liu Moumou should not be prosecuted. 4. the legal provisions of "no prosecution in doubt" Doubt not to prosecute means that the procuratorial organ may make a decision not to prosecute if it still considers that the evidence is insufficient and does not meet the conditions for prosecution after supplementary investigation. Article 175, paragraph 4, of the Criminal procedure Law stipulates that if the people's Procuratorate still considers that the evidence is insufficient and does not meet the conditions for prosecution for the second supplementary investigation, it shall make a decision not to prosecute. After two supplementary investigations, the case has one of the following circumstances. If it cannot be determined that the criminal suspect constitutes a crime and needs to be investigated for criminal responsibility, it is insufficient evidence and does not meet the conditions for prosecution. 1. The evidence based on which the verdict is in doubt and cannot be verified. 2. The facts of the constituent elements of the crime lack the necessary evidence to prove it. Contradictions between the evidences cannot be reasonably excluded. 4. The conclusion based on the evidence has other possibilities and cannot be ruled out.
Doubt not to prosecute, also known as insufficient evidence not to prosecute.
In a fraud case handled by the author, the procuratorial organ strictly controlled the evidence and did not prosecute the case for insufficient evidence-that is, no prosecution in doubt.
1. brief
After investigation, it was found that 11 people, including Liu Moumou and Wang Moumou, premeditated to purchase waste aluminum plates from a certain color printing company. They cheated the color printing company by tampering with the weighbridge and agreed to share the stolen money equally among 11 people. On December 20, 2019, 11 people including Liu Moumou drove to the vicinity of the color printing company, and Liu Moumou went to the color printing company to discuss the purchase of waste aluminum plates. After negotiation, the purchase price was 18000 yuan per ton. The next day, Liu Moumou came to pull the goods. Liu Moumou and his three men went to the weighing place near the color printing company and agreed with the weighbridge owner to give the weighbridge owner 4000 yuan a benefit fee. The weighbridge owner agreed that they should install cheating equipment on the weighbridge electronic display.
The next day to the color printing company after loading to the weighbridge weighing. When weighing, Wang Moumou and others used the remote control to control the electronic display of the weighbridge, weighing 8 tons, and should pay 144000 yuan for the goods. Liu Moumou and others asked for cash payment. The color printing company asked for the goods to be deposited into the company's account. The company accountant accompanied Liu Moumou and others to deposit in the bank. During this period, Liu Moumou and others urged the truck driver to leave as soon as possible. The truck driver drove not far away and was intercepted by the color printing company. At 13: 00 on the same day, the color printing company took the truck driver to the weighing place to weigh. Wang mou used the remote controller to control the weighing scale again, and the weighing was still about 8 tons. after the weighing was completed, the color printing company still refused to let the truck driver drive away. Liu and others worried about the incident fled the scene.
On the third day, it was re-weighed, showing that the weight of the goods in the car was 24.44 tons, and the difference between the two days was 16.44 tons. According to the price determination center, the market recovery price of waste aluminum plates was 9000 yuan per ton. Therefore, it was determined that the amount of fraud by Liu Moumou and others was 75960 yuan.
According to the personnel of the color printing company, Liu Moumou and others bought waste aluminum plates from the color printing company before. Because Liu Moumou and others were suspected of cheating in weighing, the color printing company has been trying to settle accounts with Liu Moumou and others. This time Liu Moumou and others contacted again. The color printing company wanted to quietly use this transaction to expose Liu Moumou and others and recover the losses. Therefore, the above transaction process was established. After the case, Liu and others reached a compensation understanding agreement with the injured unit with several times the amount of compensation involved.
To sum up, it is determined that the behavior of 11 people including Liu Moumou has violated Article 266 of the the People's Republic of China Criminal Law, suspected of fraud, and transferred for review and prosecution.
2. processing results
Liu Moumou, who was not prosecuted, did not meet the conditions for prosecution. According to the provisions of Article 175, paragraph 4, of the Criminal Procedure Law, it was decided not to prosecute Liu Moumou.
3. case analysis
The defender pointed out that the "Prosecution Opinion" found that 11 people including Liu Moumou had defrauded 75960 yuan, and the facts of the crime amount were unclear and the evidence was insufficient. The weight of the goods involved is in doubt, and there is great uncertainty in the determination of the amount of crime.
The investigation organ in this case weighed the difference between December 21, 2019 and December 22, 2019 as the number of crimes. However, the evidence in the volume cannot prove that the goods involved in the case maintained identity and fixity in multiple weighings, and cannot guarantee the certainty of the calculation of the amount involved when the weight difference cannot be confirmed to be certain.
The testimony of the employees of the color printing company and the truck driver both confirmed that after the truck driver was intercepted and returned to the color printing company on December 21, 2019, the truck driver stopped for dinner, during which the vehicle involved was placed in the courtyard of the color printing company, and the rear truck driver parked the vehicle in front of the office building of the color printing company under the supervision of the staff of the color printing company. until the morning of December 22, 2019, 2019, the vehicle and goods involved were weighed for the third time. Therefore, from December 21, 2019 when the truck driver went out to eat to the morning of December 22, 2019, the vehicles and goods involved in the case were parked in the hospital of the victimized company and were left unattended. The color printing company did not provide surveillance video to confirm the storage of the vehicles and goods involved in the case. Although two employees confirmed that the goods in the vehicle had not been moved, there was no objective evidence to support it. In addition, the two witnesses are employees of the victimized company and have an interest in the case. Their testimony is highly subjective, and their objectivity and authenticity are in doubt.
Therefore, the facts of the determination of the amount of the crime are unclear and the evidence is insufficient. If reasonable doubt cannot be ruled out, the evidence is in doubt, and an explanation should be made in favor of the defendant. It is suggested that Liu Moumou should not be prosecuted.
4. the legal provisions of "no prosecution in doubt"
Doubt not to prosecute means that the procuratorial organ may make a decision not to prosecute if it still considers that the evidence is insufficient and does not meet the conditions for prosecution after supplementary investigation.
Article 175, paragraph 4, of the Criminal procedure Law stipulates that if the people's Procuratorate still considers that the evidence is insufficient and does not meet the conditions for prosecution for the second supplementary investigation, it shall make a decision not to prosecute.
After two supplementary investigations, the case has one of the following circumstances. If it cannot be determined that the criminal suspect constitutes a crime and needs to be investigated for criminal responsibility, it is insufficient evidence and does not meet the conditions for prosecution.
1. The evidence based on which the verdict is in doubt and cannot be verified.
2. The facts of the constituent elements of the crime lack the necessary evidence to prove it.
Contradictions between the evidences cannot be reasonably excluded.
4. The conclusion based on the evidence has other possibilities and cannot be ruled out.
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