"I am not a headline party, nor am I sensationalist. This is a real case I represent, and it is also a criminal case, with a valid judgment.". The presiding judge of this case is the Deputy Chief Justice of the Criminal Tribunal of the Wuhan Intermediate People's Court. Even he himself said that he had worked in criminal trials for half his life, and this is the first time that the sentence has been changed in this way.

 

1、 Case details

 

Pretending to be the leader of the inspection team of the Central Commission for Discipline Inspection, installing voice changing software on a mobile phone, and playing multiple roles by one person, continuously defrauding the victim for five years, with a crime amount of over 6 million yuan. This case is somewhat mysterious.

 

To show objectivity, I will copy the accusation of the procuratorate:

 

At the beginning of 2012, the defendant Zhang Jie met the victim Zhang through Sina Weibo. During the communication process, Zhang Jie falsely claimed that he was the child of the leadership of the Wuhan Municipal Construction Commission and was preparing to undertake the project of the Hubei Provincial Government Comprehensive Building, gradually gaining Zhang's trust.

 

In May 2012, Zhang Jie fabricated the fact that he had already undertaken the above project and borrowed 200000 yuan from Zhang on the grounds of requiring short-term capital turnover. He then fabricated reasons such as project collapse and worker accidents to borrow money from Zhang.

 

In 2013, Zhang asked Zhang Jie for a loan, and Zhang Jie proposed to let Zhang invest in a so-called engineering project, convert his previous debts into shares, and continue to defraud money in the name of investment.

 

In order to prevent Zhang from suspecting, Zhang Jie sent false photos of leaders inspecting the construction site and engineering construction to Zhang through WeChat and other means, causing him to mistake them for believing that the project really exists. He also fabricated reasons for delaying repayment such as the investigation by the Discipline Inspection Commission, the transfer of project funds by money laundering, and his own investigation by the Discipline Inspection Commission. Later, he pretended to be the leader of the Central Discipline Inspection Commission's inspection team to ask Zhang for money in the name of helping solve the problem, in order to achieve the purpose of further fraud.

 

During the period from 2012 to 2017, Zhang Jie defrauded Zhang from Beijing by using various fraud methods mentioned above to obtain a total of 6.7191 million yuan. Except for 80000 yuan used to repay Zhang, the remaining funds were used by Zhang Jie for operating online stores, online shopping, purchasing cars, daily consumption, and other aspects.

 

On April 24, 2017, public security officers arrested Zhang Jie in Room 1718 of Danfeng Bailu Hotel, Sanyang Road, Jiang'an District, Wuhan City.

 

2、 Iron case

 

The bad guys deserve it when they are brought to justice. On July 16, 2018, the Wuhan Intermediate People's Court sentenced Zhang Jie to ten years and six months in prison for committing fraud in the first instance. The remaining stolen money of 5.3934 million yuan will continue to be recovered and returned to the victim Zhang.

 

At this point, the trial of this case has been concluded, the defendant has not appealed, the procuratorate has not protested, and the first instance judgment has taken effect according to law.

 

Zhang Jie was convicted of a felony, and for the victim, he had calculated a mouthful of malice, but the money he had been cheated was not returned. This anger was still not smooth. Fortunately, Zhang Jie still has a million yuan worth of real estate under his name. If the auction can be carried out, many losses can also be recovered.

 

The victim came to the Wuhan Intermediate Court with the judgment and requested that the property owned by Zhang Jie be sealed and auctioned. The Executive Bureau said that they could only execute the property on the list of stolen money and goods transferred along with the case. The property was not on the list, and they had no right to execute it.

 

"Let's ask the presiding judge to add this property. The presiding judge said no, the public security organs did not seize this property during the initial investigation, and the procuratorial organs did not have this property in the file when they filed a lawsuit. How can the court casually add a property?"?

 

Looking for the public security organ, the public security organ said that Zhang Jie's fraud occurred in 2012, and Zhang Jie's real estate purchase occurred in 2004. Obviously, it was not the purchase of stolen money or stolen goods, and the public security organ certainly had no right to investigate and detain them.

 

This is strange. All three parties, public security organs and the law, are justified, but those who are not justified are the victims. The house is clearly there, but the victim is unable to execute it. What is the problem? Is there a gap in the law or a loophole in the judgment? The victim was puzzled.

 

If you have difficulties, find a lawyer. When I finished listening to the statement and reading the judgment, I was also in a fog. I knew there was a problem, but I didn't know where it was.

 

The expert said that he would file a civil suit with criminal proceedings. I'm sorry, there's no claim that a fraud case is accompanied by a civil lawsuit at all.

 

Then start a civil lawsuit. This is a good approach. First, preserve the property, then try, adjudicate, execute, and auction it, solving the battle in a one-stop process. However, the Supreme Law expressly stipulates that the court will not accept any such civil proceedings. For details, please refer to the "Reply of the Supreme People's Court on Relevant Issues Concerning the Application of Article 64 of the Criminal Law".

 

That's another big move, appeal. This is another crooked move. In a fraud case, the victim has no legal status at all. During the court session, both the prosecutor and the defender are available, and the victim can only sit in the audience. Do you think he still has the right to file a complaint without even a seat? There's no way.

 

"Then apply to the procuratorate to protest, the prosecutor replied. Our sentencing proposal is for more than ten years, and the court sentenced him to ten and a half years. What are our reasons for protesting?"? "His house can't be executed, it's a matter of executing procedures, and we can't resist it.".

 

"There can be no prosecution, no appeal, no protest. This case has become an iron case here, perfectly sealed and unmoved.".

 

3、 Revise judgment

 

"If you don't repay more than 5 million yuan in debt to someone, and you still have a million yuan worth of real estate, the court can't enforce it yet. Is there any reason in the world?"?

 

"I started by holding high and beating high. First, I consulted a criminal law professor at the China University of Political Science and Law, then consulted relevant legal provisions, and compared a large number of similar criminal judgments. Finally, I found the crux of the case: there was a problem with the judgment!"!

 

But the judgment has already taken effect, what should we do? Whatever you do, meet the presiding judge first.

 

In August, Wuhan was a veritable furnace. I stood in a long line in the scorching sun with the registered and petitioned masses, sweating like rain. How was steel made? This is how steel is made.

 

The presiding judge and assistant have an office, and the assistant is a graduate student from a famous university. Both of them received me together.

 

Let me start by saying that there is a problem with the penalty in this case. For fraud, 500000 yuan is the starting point for ten years. For Zhang Jie, he defrauded more than 6 million yuan, which is more than ten times the starting point. Why is he sentenced to ten and a half years?

 

The assistant said how could it be possible? The amount of 5 million yuan is particularly huge, and it is only the starting point for a 10-year sentence.

 

There is no need to compete. When two people open the bar at the table and roll their eyes, it will be 500000 yuan.

 

"I have submitted multiple precedents, including those in Beijing, Shanghai, and Shenzhen. If the fraud amount is more than 6 million yuan, the proper ones are all life imprisonment.".

 

"There's nothing more to say when I see the assistant, so I'll make it easy. I didn't come here for this, but for the house.".

 

"I have listed Article 64 of the Criminal Law:" All property illegally obtained by criminals should be recovered or ordered to be returned or compensated. "This case has only been sentenced to recovery, and no judgment has been issued to order a refund or compensation.".

 

The presiding judge said that recourse is more powerful than ordering restitution, and can better protect the rights and interests of victims.

 

"I said that the Criminal Law Interpretation stipulates that the recovery is" the compulsory collection of the illegal gains of criminals. "The only thing that is recovered is stolen goods, and Zhang Jie's house is not stolen goods, so it cannot be recovered.". "Return" refers to the return of the original property, and "compensation" refers to the civil liability for compensation if the original property cannot be returned. Therefore, only a judgment ordering the return of compensation can enforce Zhang Jie's property.

 

"I also took out the Minutes of the National Court's Symposium on Criminal Justice to Maintain Rural Stability, which stated, 'If the stolen money and goods are still in existence, they should be recovered; if they have been used, destroyed, or squandered, they should be ordered to return the compensation.'"

 

The presiding judge looked at such a summary without saying anything or expressing his position.

 

No matter what attitude you have, if you disagree with this one, I'll put it another way. According to my own thinking, I'll put it out one by one.

 

The "Several Provisions of the Supreme People's Court on the Implementation of the Property Related Part of Criminal Judgments" further clarifies the order to refund compensation, "The term" enforcement of the property related portion of a criminal judgment "as used in these regulations refers to the enforcement of the following matters determined by the main text of a legally effective criminal judgment: (1) fines and confiscation of property; (2) ordering refund of compensation; (3) disposing of stolen funds and goods transferred along with the case; (4) confiscating personal property transferred along with the case for criminal use; and (5) other relevant matters that should be executed by the people's court."

 

In this provision, there is only an order to return compensation, without recourse. The meaning of recourse is only "disposal of the stolen money and goods transferred along with the case" in item (3). This article only deals with the property involved, and does not include the content of an order to return compensation. Moreover, the order to return compensation has been listed as item (2) separately, indicating that the two are not a duplicate relationship, but a progressive and complementary relationship.

 

The Interpretation of the Reply on the Application of Article 64 of the Criminal Law issued by the Research Office of the Supreme People's Court states: "Given that legal and judicial interpretations have excluded the illegal possession and disposal of the victim's property by the defendant from the scope of acceptance of incidental civil actions, if the main text of the judgment does not specify the relevant content of recovery or order to return compensation, it will not be able to effectively safeguard the legitimate rights and interests of the victim."

 

"If the order to refund or compensate is not stated in the judgment, the legitimate rights and interests of the victim cannot be safeguarded. This explanation cannot be clearer. It is not necessary to write the order to refund or compensate, but it must be written separately."!

 

The presiding judge couldn't sit still and stood up to ask for the document in my hand.

 

"Not only did I give him the document, but I also gave him a model text from the Supreme People's Court guiding how to write a judgment, saying, 'If the property seized, detained, or frozen is insufficient to compensate for the losses of the victim, for example, if the fraud is 1 million yuan, and the property seized in the case is only 200000 yuan, it should be stated in the main text of the judgment that the defendant should be ordered to refund 800000 yuan to the victim after the judgment returns 200000 yuan of the seized property to the victim.'"

 

Having said that, what else can be argued? The presiding judge acknowledged that there were indeed loopholes in the judgment.

 

"What can be done to make up for it? Everyone has been really puzzled. Finally, we should admire the courage of the presiding judge and decisively change the sentence in order to protect the legitimate interests of the victims without sticking to formality.".

 

On September 5, 2018, the Wuhan Intermediate People's Court issued a criminal ruling (2018) E 01 Xing Chu No. 76, correcting the remaining stolen money in the original judgment "to continue to be recovered" to "order the defendant Zhang Jie to return the remaining stolen money to the victim Zhang Mou, amounting to 5.3934 million yuan."

 

It's so easy to make a change of judgment, so we can settle it once we meet? Far from being so simple, I have been to Wuhan five times, met the presiding judge three times, and read the entire volume persistently. In addition, I also visited the polite police chief who investigated the case and the eloquent prosecutor who appeared in court to support the prosecution. I learned every detail of the case in detail and did a lot of preliminary work for changing the sentence.

 

The hard work paid off, and the legal difficulties in this case were finally solved. It was natural to execute Zhang Jie's property. Next, the auction of the property resulted in a payment of more than one million yuan. This lawyer's merit and integrity were satisfactory, right? No! Due to the transfer of real estate during the implementation process, there have been many twists and turns, and it has been written as a masterpiece with a hundred chapters, which is limited in length and will be broken down in the next chapter.

 

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