Introduction to the case:

Lu Moumou is the secretary of the general manager of a company, keeping the bank card of the general manager on behalf of the general manager, and needs to fill the deficit due to the failure of stock speculation, and he takes out nearly 300,000 yuan in batches through the ATM machine, and takes it for himself. After the general manager discovered the case, the investigators summoned him to the police station for investigation, and Lu was criminally detained. Lu's family found the criminal defense team of our firm, and lawyers Liu Ruxiang and Wang Xi carried out active and effective defense work after accepting the entrustment, and finally the defendant Lu Moumou was given a reduced punishment and sentenced to three years in prison and four years of probation.

Case handling history

After Lu was criminally detained, his family immediately appointed a lawyer for him, and the previous lawyer felt that the amount was huge and the expectation of a suspended sentence was not high, and the family was unwilling to find Lawyer Liu. Through the meeting and the relevant facts of the case learned by the investigating authorities, Lawyer Liu analyzed: The amount involved was nearly 300,000 yuan, whether it was convicted of theft or credit card fraud, if there were no mitigating circumstances, especially mitigating circumstances, the final sentence may be six to seven years, which did not meet the conditions for a suspended sentence, so a five-step defense plan was formulated.

Step 1: Proactively negotiate refunds

Whether such a property theft case wants to obtain bail or the final judgment is suspended, the key point is whether to return compensation and whether to obtain the victim's understanding, so after determining the approximate amount, the lawyer actively communicated with Lu and his family, accompanied the family to contact the public security organ as soon as possible, and returned all the losses to the victim. Active restitution, especially during the investigation phase, laid the foundation for subsequent reductions in sentences and suspended sentences.

(According to the Detailed Rules for the Implementation of the Jiangsu Provincial Higher People's Court, if the base sentence is less than three years, the base sentence can be reduced by less than 30%; Where the base sentence is between three and ten years, the base sentence may be reduced by less than 20%; Where the base sentence is more than 10 years, the base sentence may be reduced by less than 10 percent. ）

Step 2: Carefully cut the plot to protect yourself and turn yourself in

During the meeting, although the suspect said that he was caught by the public security at the doorstep, Lawyer Liu still asked the suspect to detail the details of the "capture", during which Lawyer Liu noticed a key detail, Lu's turning and surrendering! According to Lu's confession: She received a call from her mother saying that several people came to the house to find him, plus the victim said that she would report the case to let her go to jail, feeling that her case happened in the east window, it may be that the police came to the door, so she immediately rushed home and passed by the police handling the case when she got on the elevator, but she thought that these people might be the police looking for him, so she immediately went downstairs to find the police handling the case, and was taken to the police station after meeting the police officer on the first floor. Lu Moumou had a premonition that he might have a chance to escape when the police were looking for him, but he did not escape, still took the initiative to surrender, and after arriving at the case, he truthfully confessed the main facts of the crime, which met the conditions for self-surrender.

At the end of the investigation of the case and the transfer to the procuratorate for review and prosecution, the "arrival process" in the file materials only simply stated the capture and arrest, and did not determine the details of Lu's voluntary surrender, and the lawyer actively communicated with the case-handling personnel many times, and after verification by the prosecutor, confirmed that Lu met the circumstances of surrendering himself, and won a circumstance for Lu to reduce the punishment.

(According to the Detailed Rules for the Implementation of the Jiangsu Provincial Higher People's Court, when the facts of the crime or the criminal suspect have been discovered by the judicial organs, but the criminal suspect has not yet been interviewed, interrogated, or announced to take investigative measures or compulsory measures, and voluntarily or directly surrenders to the case and constitutes voluntary surrender, the base sentence may be reduced by 10%-30%)

Step 3: Submit an opinion on the conviction

Whether this case is a crime of theft or credit card fraud, there is also a certain controversy in the academic community about the fraudulent use of other people's bank cards to withdraw money at ATMs, this case was first arrested for theft, but because the existing judicial interpretation still recognizes the fraudulent use of other people's bank cards to withdraw money at ATMs as credit card fraud, after the investigation was completed, the case was changed to credit card fraud and transferred for review and prosecution.

The determination of the nature of the case plays a crucial role in pretrial defense, the same amount if the crime of theft is determined to be a sentencing file of three to ten years, and the determination of credit card fraud must be more than five years, and the probation requirement is less than three years, so after the determination of credit card fraud, there must be mitigating circumstances to reduce the punishment to less than five years, at this time the determination of Lu's surrender is particularly important.

Step 4: Confession and Punishment Signature

The introduction of the leniency system for guilty pleas and punishments provides opportunities for criminal suspects who truly recognize their mistakes to be leniently punished, and at the same time saves judicial resources. At the stage of the procuratorate's review and prosecution, Lawyer Liu explained to Lu in detail the leniency system for plea of guilt and punishment, and finally cooperated with the prosecutor to sign the plea and punishment statement, so as to obtain lenient punishment for Lu to a greater extent.

(According to the Decision of the Sixth Meeting of the Standing Committee of the 13th National People's Congress on Amending the Criminal Procedure Law of the People's Republic of China on October 26, 2018, the third amendment adds Article 15 of the system of leniency in admitting guilt and accepting punishment: where criminal suspects or defendants voluntarily and truthfully confess their crimes, admit the facts of the alleged crimes, and are willing to accept punishment, they may be treated leniently in accordance with law).

Step 5: Community corrections are done in advance

After the efforts of the first four steps, the prosecutor also saw Lu's sincere attitude of confessing guilt and repentance, and suggested that the sentence be reduced to more than three years, at this time, the case is getting closer and closer to the conditions for probation, considering that Lu is a first-time offender, and there are still young children at home to take care of, so the procuratorate did a community corrections investigation for the suspect at the stage of reviewing the prosecution, and Lu obtained a community corrections assessment letter in advance, making full preparations for probation.

After laying the foundation for the above-mentioned five-step effective defense, the court finally supported the defender's view and sentenced the defendant Lu to a suspended sentence.

The case lasted for more than half a year, and many variables in the middle, whether it was the change of charges or the determination of the circumstances, were inseparable from the lawyer's professional control of the procedure and entity, and finally obtained a satisfactory result for the client. Of course, criminal defense is not "speaking for bad people" as the people often say, but striving to make crime and punishment more adaptable, so that the criminal person receives due punishment and has a chance to change, so that he sincerely repents, reformed well, and gives back to society.

Related offences

1. The crime of theft

According to Article 264 of the Criminal Law of the People's Republic of China, the crime of theft refers to the theft of a large amount of public or private property for the purpose of illegal possession, or repeated theft, burglary, theft with a murder weapon, or pickpocketing of public or private property.

According to the Detailed Rules for the Implementation of the Jiangsu Provincial Higher People's Court, <Sentencing guidance on common crimes>if the amount of theft reaches 2,000 yuan, the sentencing threshold shall be determined within the range of three months' detention to nine months' imprisonment. For each $1,500 increase in the amount, one month's imprisonment will be added to determine the base sentence. Where the amount of theft reaches 50,000 yuan, the starting point for sentencing shall be determined within the range of three to four years' fixed-term imprisonment. For each increase of 5,000 yuan, one month's imprisonment shall be added to determine the base sentence.

2. Credit card fraud

According to Article 196 of the Criminal Law of the People's Republic of China, the crime of credit card fraud refers to the act of using credit cards to carry out fraudulent activities and obtain a large amount of property for the purpose of illegal possession, violating credit card management laws and regulations.

According to Article 5 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in the Handling of Criminal Cases Involving Obstruction of Credit Card Management, where a person uses a forged credit card, a credit card fraudulently obtained with false identification, a cancelled credit card, or fraudulently uses another person's credit card to engage in credit card fraud activities, and the amount is more than 5,000 yuan or less than 50,000 yuan, it shall be deemed to be a "relatively large amount" as provided for in article 196 of the Criminal Law; Where the amount is more than 50,000 yuan and less than 500,000 yuan, it shall be deemed to be "a huge amount" as provided for in article 196 of the Criminal Law; Where the amount is more than 500,000 yuan, it shall be found to be "particularly large" as provided for in article 196 of the Criminal Law.

(This article is translated by software translator for reference only.)