1、 Team work dynamics

 

1. The team holds a case workshop

 

On September 26th, our criminal team held a case seminar to discuss a case involving contract fraud and securities market manipulation that lawyers Dong Xiaohua and Zhu Ting are handling. The case involved more than 200 million yuan, involving actual controllers of listed companies, regional principals of securities companies, etc. After full argumentation, the case handling team has formed an innocent defense opinion. Next, it will strengthen communication with the procuratorial organ.

 

Zhao is suspected of fraud and is not prosecuted

 

In a suspected fraud case undertaken by lawyer Chen Cong from the Gao Peng criminal defense team, the procuratorate adopted the lawyer's opinion and made a decision not to prosecute Zhao.

 

Brief Introduction to the Case

 

In 2019, Zhang cooperated with Zhao and others to handle the donation of limited funds. Due to the need to transfer 1 million yuan of transfer fees to the consortium that holds the limited funds before donation, Zhang and Wang were responsible for raising the transfer fees; Li and Gao are responsible for applying for donation materials; Zhao Mou is responsible for contacting related matters related to the quota and signing agreements with the consortium. Zhang and others transferred 1 million of the 1.2 million yuan borrowed from Sun to Zhao, who then transferred the 1 million yuan to the consortium. Later, Zhao and others found that the consortium did not donate the amount as agreed, and after investigation, it was found that the amount sheet was fake. Zhao recovered 1 million yuan and returned it to Zhang and others.

 

Case handling process

 

During the interview at the investigation stage, the defender learned about the cause, process, and outcome of the case from Zhao in detail. During the review and prosecution stage, after reviewing all the files and checking the evidence with Zhao, it was found that although Zhao was responsible for the "amount donation matter," there was no evidence to prove that he had the intention to illegally occupy the property of others, or that he had committed fraud. Therefore, the opinion was raised that "the facts are unclear and the evidence is insufficient, and Zhao's behavior does not constitute a crime of fraud.". Finally, the prosecutor fully adopted the opinions and made a decision not to prosecute Zhao.

 

Experience

 

"Attention should be paid to the evidence on record, and the relevant facts outside the case cannot be ignored.". After reviewing the paper, the defender found that the evidence on the record did not form a complete evidence chain. After analyzing the corroborating and contradictory aspects of the evidence on the record, and combining the multiple interviews, the defender sorted out the logical facts and clarified the role played by Zhao.

 

2. Comprehensively review the paper and dig into details. Sorting out the evidence of the entire case, clarifying the details of the flow of funds, the role of each suspect, and so on, to clarify that Zhao did not have the purpose of illegally occupying other people's property and did not commit fraud.

 

2、 Important legal provisions

 

1. The Central Committee of the Communist Party of China and the State Council issued the "Outline of Building a Powerful Intellectual Property Country (2021-2035)"

 

Recently, the Central Committee of the Communist Party of China and the State Council issued the "Outline for Building a Powerful Intellectual Property Country (2021-2035)", and issued a notice requiring all regions and departments to conscientiously implement it based on actual conditions. The outline proposes to improve the legal system for regulating the abuse of intellectual property rights, as well as legislation in areas such as anti monopoly and anti unfair competition related to intellectual property rights. Establish and improve a review system for the legality of intellectual property policies and fair competition. Establish an intellectual property public policy evaluation mechanism.

 

(Source: Xinhua. com)

 

"Notice on Further Preventing and Disposing of the Risks of Speculation in Virtual Currency Transactions" issued by multiple departments

 

Recently, various departments such as the People's Bank of China have issued the "Notice on Further Preventing and Disposing of the Risks of Speculation in Virtual Currency Transactions". The notice clearly states that virtual currency does not have the same legal status as legal tender, and virtual currency related business activities are illegal financial activities. The provision of services by overseas virtual currency exchanges to domestic residents through the Internet is also illegal financial activities. The notice states that financial institutions and non bank payment institutions shall not provide services for virtual currency related business activities; Strengthen the management of Internet information content and access related to virtual currency; Strengthen the registration and advertising management of market entities related to virtual currency; Strictly crack down on illegal financial activities related to virtual currency; Strictly crack down on criminal activities involving virtual currency.

 

(Source: Xinhua Viewpoint)

 

3. Regulations Office of the Central Commission for Discipline Inspection and the National Supervision Commission: Continuously deepen the reform and standardization of the national supervision system and correctly exercise the national supervision power

 

With the approval of the Central Committee of the Communist Party of China, on September 20, 2021, the National Supervisory Commission announced the "Regulations for the Implementation of the Supervisory Law of the People's Republic of China" (hereinafter referred to as the "Regulations") in Announcement No. 1. Promote significant institutional achievements in the construction of supervisory regulations, systems integration, coordination, and efficiency. The promulgation and implementation of the Regulations fully demonstrates the distinct position of the discipline inspection and supervision organs in using the rule of law thinking and methods to rectify their conduct, eliminate discipline, and combat corruption, as well as their firm determination to accept the strictest supervision and restraint.

 

(Source: China Discipline Inspection and Supervision Report)

 

4. The two high levels and two ministries urge fugitives involved in crimes and crimes to surrender as soon as possible

 

In order to further promote the normalization of the fight against gangs, punish crimes committed by gangs and evil forces in accordance with the law, maintain social stability, and protect the safety of people's lives and property, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice recently jointly issued the "Notice on urging fugitives involved in gangs and evil to surrender voluntarily.". The "Notice" states that fugitives who voluntarily surrender to the police from the date of issuance of this Notice until October 31, 2021 and truthfully confess their crimes may be given a lighter or mitigated punishment according to law; "If the circumstances of the crime are relatively minor, they may be exempted from punishment according to law.". Those who refuse to surrender within the prescribed time limit will be severely punished according to the circumstances of the crime and the harm caused. The fugitives should recognize the situation, surrender to the police as soon as possible, and strive for leniency.

 

(Source: Supreme People's Procuratorate)

 

5. The Supreme People's Court printed and distributed the "Implementation Measures for Improving the Trial Level Function Positioning Reform Pilot of the Fourth Level Courts"

 

On September 27th, the Supreme People's Court issued the "Implementation Measures for Improving the Trial Level Function Positioning Reform Pilot of Fourth Level Courts", which clarified the work objectives, main tasks, pilot scope and duration, and supporting security measures of the reform pilot. It is the specific basis for carrying out the pilot work, and the content mainly includes five aspects: first, clarifying the trial level function positioning of Fourth Level Courts. The second is to improve the administrative case level jurisdiction system. The third is to improve the jurisdiction mechanism for case escalation. Fourth, reform the retrial procedure. Fifth, improve the operation mechanism of the judicial power of the Supreme People's Court.

 

(Source: Supreme People's Court)

 

3、 Trends in Major Criminal Cases

 

The first trial of the bribery case of Gong Dao'an, former vice mayor of Shanghai and former director of the Municipal Public Security Bureau, opened

 

On September 16, 2021, the Intermediate People's Court of Tangshan City, Hebei Province, held a public trial to hear the bribery case of Gong Dao'an, former vice mayor of the Shanghai Municipal Government and former director of the Municipal Public Security Bureau. During the court trial, the procuratorial organ presented relevant evidence, the defendant Gong Dao'an and his defenders cross-examined, and the prosecution and defense fully expressed their opinions under the auspices of the court. Gong Dao'an made a final statement and expressed his guilty plea and repentance in court. Representatives to the National People's Congress, members of the Chinese People's Political Consultative Conference, journalists, and 30 people from all walks of life attended the trial. At the end of the trial, the court adjourned the trial and handed down the verdict on an optional date.

 

(Source: Supreme People's Procuratorate)

 

Harbin man sexually assaults 4-year-old girl and is executed

 

At around 18:30 on August 29, 2020, the defendant Liu Weiguo tricked a 4-year-old daughter from a neighbor's family into a drainage ditch on the west side of a construction site on Chengcheng Road, Daoli District, Harbin City, and committed adultery on her. Causing three serious injuries to the victim's body, including one at level 9 and two at level 10. On December 2, 2020, the court handed down a sentence in court, sentencing Liu Mouguo to death for rape and depriving him of political rights for life. On September 18, 2021, the Supreme People's Court of the People's Republic of China issued an order to execute the death penalty. According to law, the Intermediate People's Court of Harbin City, Heilongjiang Province, identified Liu Weiguo and detained him to the execution ground for execution.

 

(Source: Harbin Intermediate People's Court)

 

Zhao Jingwen, former member of the Party committee and executive director of China CITIC Group Co., Ltd., was sentenced to 18 years in the first instance

 

On the morning of September 18, 2021, the Intermediate People's Court of Changsha City, Hunan Province, publicly sentenced Zhao Jingwen, a former member of the Party committee and executive director of China CITIC Group Co., Ltd., to a case of bribery and embezzlement. The defendant Zhao Jingwen was sentenced to 15 years' imprisonment for the crime of bribery, and a fine of 3 million yuan was imposed; "For the crime of corruption, he was sentenced to fixed-term imprisonment of four years and also fined 200000 yuan. He decided to execute the sentence of 18 years and also fined 3200000 yuan.".

 

(Source: Xinhua News Agency Weibo)

 

4. Customer mail gold loss case

 

On August 28th, Ms. Cheng from Tianjin mailed 275.06 grams of gold with a total value of 110000 yuan through China Post EMS. However, after the express arrived at the Shangqiu transit station in Henan Province, it disappeared. Currently, the relevant person in charge of China Post responded that the package was lost due to internal theft. On September 18, the suspect involved in the case, Fei (male) and Wu (female), were captured by the Criminal Investigation Brigade of Zhengdong New District Branch of Zhengzhou Public Security Bureau, and most of the stolen gold was recovered. The two persons involved in the case are employees of Henan Beichen Human Resources Information Service Co., Ltd. who provided outsourcing services to the Zhengzhou Post Area Center.

 

(Source: Henan Postal Branch)

 

5. The perpetrator of the electric vehicle fire in Tongzhou, Beijing is detained by criminal law

 

In the early morning of September 20th, a fire broke out in a residential area in Tongzhou District, Beijing, killing 5 people. It is understood that the building on fire has a total of 5 floors and a height of 18 meters, of which the 4th and 5th floors are of a duplex structure. According to the preliminary judgment of relevant departments, the cause of the fire was that the third floor tenant took the lithium battery of the electric bicycle home for charging, and the battery exploded and caught fire. After the fire broke out on the third floor, it quickly spread to the balcony on the fourth floor and jumped into the living room and bedroom on the fifth floor. Currently, the case is under further work. At present, the perpetrators of the Tongzhou electric bicycle fire have been taken criminal coercive measures by the police according to law.

 

(Source: Xinhua News Agency)

 

6. Yuan Renguo, the former chairman of Kweichow Moutai, was sentenced to life imprisonment in the first instance and took bribes of more than 112 million yuan

 

On the morning of September 23, 2021, the Intermediate People's Court of Guiyang City, Guizhou Province, publicly announced the bribery case of Yuan Renguo, the former deputy director of the Economic Committee of the 12th Guizhou Provincial Committee of the Chinese People's Political Consultative Conference, and sentenced the defendant Yuan Renguo to life imprisonment for the crime of bribery, deprived of political rights for life, and confiscated all personal property; The property and fruits obtained from Yuan Renguo's bribery shall be recovered according to law and turned over to the national treasury.

 

(Source: CCTV News Client)

 

7. Chen Feng, Chairman of HNA Group, and Tan Xiangdong, Chief Executive Officer, were taken mandatory measures

 

On the evening of 24, 2021, the official WeChat announcement of HNA Group announced that it had received a notice from the Hainan public security organ that Chen Feng, Chairman of HNA Group Co., Ltd., and Tan Xiangdong, Chief Executive Officer, had been taken mandatory measures in accordance with the law due to suspected violations and crimes. HNA Group and its member enterprises operate in a stable and orderly manner, the bankruptcy and reorganization work is smoothly carried out according to law, and their production and operation are not affected in any way.

 

(Source: "HNA Group" WeChat official account)

 

8. Private placement big v Ye Fei is arrested for suspected market manipulation

 

Recently, the CSRC cooperated with the public security organs in a joint action to arrest and bring to justice the main suspects in three cases of market manipulation, including Private Placement Da V and Yitian Investment Chairman Ye Fei. After investigation, Ye Fei, knowing that Liu Mouye and others manipulated the stock price of "the Nanling Mountain Civil Explosion", actively provided relevant help and suggestions to create favorable conditions for manipulating the market and seek illegal interests. Source: Xinhua News Agency

 

4、 Spirit of important leaders' speeches (major events)

 

 

 

 

 

(Source: Xinhua. com)

 

2. Establishment of the Supreme Procuratorial Office of China Securities Regulatory Commission

 

On September 18, 2021, the Procuratorial Office of the Supreme People's Procuratorate in the China Securities Regulatory Commission was inaugurated. Zhang Jun, Secretary of the Party Leadership Group and Procurator General of the Supreme Procuratorate, and Yi Huiman, Secretary of the Party Committee and Chairman of the China Securities Regulatory Commission, jointly inaugurated the procuratorial office in the meeting. According to reports, the procuratorial office stationed in the conference will perform four major responsibilities: first, strengthen the coordination and restriction of law enforcement and justice; Strengthening the handling of securities and futures crime cases by procuratorial organs; Third, guide the construction of securities and futures prosecutorial specialization in local procuratorial organs; Fourth, carry out research, prevention, and governance work on securities and futures violations and crimes.

 

(Source: Supreme People's Procuratorate)

 

Wang Like, former member of the Standing Committee of the Jiangsu Provincial Party Committee and former secretary of the Political and Legal Commission, was "Double opened"

 

Recently, with the approval of the Central Committee of the Communist Party of China, the Central Commission for Discipline Inspection and the National Supervision Commission conducted a case review and investigation on the serious violations of discipline and laws committed by Wang Like, former member of the Standing Committee of the Jiangsu Provincial Party Committee and former secretary of the Political and Legal Commission.

 

(Source: Website of the Central Commission for Discipline Inspection and the National Supervision Commission)

 

4. The night inspection for drunk driving was released "from the public security bureau," and the police reported it

 

On September 21, the 1st Squadron of the Economic and Technological Development Zone Brigade of the Traffic Police Detachment of Binzhou Public Security Bureau participated in the live broadcast linkage of alcohol driving regulation and law enforcement. A checkpoint was set up at the intersection of the 6th Huanghe Road and the 18th Bohai Road, with a civilian police officer leading four auxiliary police officers performing duties. At 22:56 on the same day, the police on duty noticed an abnormal parking of a vehicle and immediately went forward to handle it. The driver, Lin Moumou, claimed that he had just driven the vehicle by his husband, Liu Moumou, and claimed that Liu Moumou had drunk alcohol at noon. To be on the safe side, he left it to himself. During this period, Lin Moumou claimed to be "from the municipal public security bureau.". The police on duty failed to conduct alcohol testing on the two persons as required and illegally released them. After a study by the Party Committee of the Municipal Public Security Bureau, it was decided to give a serious warning to the civilian police officer on duty, Cheng Moumou (the instructor of the first squadron of the Economic and Technological Development Zone Brigade of the Traffic Police Detachment of the Municipal Public Security Bureau, and the police officer at the fourth level) within the party, and to be removed from office by administrative means. The police officer at the fourth level was demoted to a police officer at the second level; Huo Moumou, the leader of the traffic police brigade with leadership responsibility, and Xing Moumou, the leader in charge, will be ordered to conduct inspections and admonishment conversations, respectively; Criticize and educate auxiliary police officers who participate in on-site service. Lin Moumou was given a serious warning within the party by the Municipal Commission for Discipline Inspection and Supervision. Liu Moumou was handed over to his unit for handling.

 

(Source: Pengpai News, Binzhou Traffic Police, Zhongxin Video)

 

5. The highest level of prosecution: For persons in charge of private enterprises suspected of business related crimes, those who can not be arrested according to law will not be prosecuted, and those who can not be prosecuted will not be prosecuted

 

On September 22, the Information Office of the State Council held a press conference to introduce the contribution of procuratorial power to the comprehensive construction of a moderately prosperous society. Zheng Xinjian, Director of the Fourth Procuratorial Office of the Supreme People's Procuratorate, said that on the one hand, procuratorial organs provide equal protection to various market entities, regardless of whether they are state-owned enterprises, private enterprises, domestic capital, or foreign capital. He mentioned that the procuratorial organ insists on severely punishing crimes that infringe upon the legitimate rights and interests of enterprises, and maintaining a good socialist market order. Fully considering the actual operation and development of private enterprises, if the person in charge of private enterprises is suspected of a business related crime, according to the law, he/she should not be arrested, if he/she can not be prosecuted, he/she should not be prosecuted, and if he/she can not be sentenced to a real sentence, he/she should propose sentencing recommendations for applying a suspended sentence.

 

(Source: Guoxin. com)

 

6. Meng Wanzhou's Release and Return to the Motherland

 

Through the unremitting efforts of the Chinese government, on September 24th local time, Ms. Meng Wanzhou left Canada on a chartered plane from the Chinese government, and arrived at Shenzhen Bao'an International Airport on the evening of the 25th to return to the motherland. Lawyer Meng Wanzhou issued a statement: Ms. Meng Wanzhou has reached a Deferred Prosecution Agreement (DPA) with the United States Department of Justice, and this agreement has been approved by Judge Ann M. Donnelly of the East District Court of New York. According to the terms of the agreement, she will not be further prosecuted by the United States, and Canada's extradition proceedings will be terminated. Ms. Meng Wanzhou did not plead guilty.

 

(Source: CCTV News)

 

5、 Theoretical Trends in Criminal Law

 

Xia Wei: The Excessive Overdraft of Punishment Attached to People in Judicial Practice - Based on Big Data Analysis

 

After years of localized development, the system of criminal incidental civil litigation absorbed from the former Soviet Union has gradually acquired Chinese characteristics to help solve judicial practice problems in China. Through empirical research on big data samples, it is found that criminal incidental civil litigation is excessively overdrawn in judicial practice, which is not only expanded to apply to the field of mental damage compensation, but also affects ordinary civil litigation, seriously deviating from the preset goal of the system. The underlying logic of criminal incidental civil litigation is to exchange procedural justice for procedural efficiency. Its function is to improve procedural efficiency on the basis of safeguarding substantive justice, rather than taking procedural justice and procedural efficiency into account. To apply criminal incidental civil litigation correctly, it is necessary to clarify the essence of simplified civil procedures and strictly abide by the legislative restriction of "material damage caused by criminal acts" in judicial practice.

 

(Source: "Academic Perspectives" column of Law Forum, Issue 5, 2021)

 

Zhang Mingkai: Special Subject Identity Requirements for Insurance Fraud Crime

 

The crime of insurance fraud does not require the perpetrator to have the identity of policyholder, insured, or beneficiary when signing an insurance contract with the insurer, as long as the perpetrator has the above identity when initiating insurance fraud with the insurer (such as filing a claim). As the crime of insurance fraud is a real identity crime, the principal (including indirect principal) must have an identity, and those who do not have an identity can only establish a narrow sense of accomplice.

 

(Source: Democracy and the Legal System Weekly, Issue 34, 2021)

 

3. Chen Ruihua, Zhu Xiaoqing, Sun Changyong, Yan Zhaohua, Li Yong: Discussion on the focus of controversy on the application of the leniency system for pleading guilty

 

The Criminal Procedure Law of the People's Republic of China, revised in 2018, for the first time incorporates the leniency system for pleading guilty to a crime into the field of criminal procedure law. The leniency system for pleading guilty to a crime helps to protect the human rights of the defendant, save judicial resources, and improve litigation efficiency. However, the basic litigation system for pleading guilty to a crime and leniency system also has an operating environment, which is not sound, and the design of the system lacks systematic thinking and overall consideration, Incomplete supporting measures and other issues. In the "Yu Jinping Traffic Accident Case", Yu Jinping appealed against the judgment of the court of first instance after signing a written confession of guilt and punishment. The procuratorate protested in order to obtain a suspension of sentence in the sentencing proposal. The court of second instance did not adopt the suspension proposal and sentenced him to a heavier sentence than the first instance. Based on this, the leniency system for pleading guilty and punishment has once again been promoted to the public's attention, causing widespread public discussion in society, and also arousing a heated debate between academic and practical circles on controversial issues related to pleading guilty and punishment. This journal selects the writings of five experts and scholars, including Zhu Xiaoqing, Sun Changyong, Chen Ruihua, Yan Zhaohua, and Li Yong, to discuss the controversial focus of the leniency system for pleading guilty.

 

(Source: Democracy and the Legal System Weekly, Issue 34, 2021)

 

Zhu Xiaoqing: Several difficult issues in corporate compliance

 

Corporate compliance is of important value for promoting corporate and social governance, promoting high-quality economic development and higher levels of openness to the outside world, and comprehensively promoting the rule of law. Corporate criminal compliance and leniency systems for pleading guilty are two systems that are both related and have many differences. To prevent the current case handling system from affecting corporate compliance, relevant parties should strengthen systematic thinking, clarify their respective responsibilities, establish special procedures, and carefully use mandatory measures. Enterprise compliance should be monitored and evaluated by a third party, but the conditions and procedures for the generation of third-party personnel should be standardized, their supervision strengthened, and funding sources and circulation channels standardized. The criminal compliance policy of enterprises should be carefully grasped, which can be applied to various types of enterprises. The policy of combining leniency with severity should be implemented, which not only leniently treats enterprises, but also implements strict measures; Not only are responsible persons dealt with in accordance with the law, but also the main responsible persons of private enterprises are differentiated.

 

(Source: Research on the Rule of Law, Issue 5, 2021)

 

Zhou Guangquan: Conviction Dispute over Obtaining Published Personal Information and Selling for Profit

 

There has always been controversy in practice as to whether it is a crime to obtain some enterprise registration information and credit information that have been publicly disclosed on public networks and sell or provide them to others without the consent of the recipient. "Guilty theory" has always been the majority theory in practice (paragraph 3 of Article 5 of the 2017 Criminal Justice Interpretation also protects credit information as sensitive information, which may include publicly disclosed personal information). The basic proposition of this statement is that personal information is different from personal privacy. In practice, Minority judgment approval "The doctrine of innocence. The overall trend of criminalizing the acquisition of personal information from publicly available corporate information seems to have been reversed to some extent after the adoption of the Civil Code, which is a trend that deserves attention. Although the continued impact of this trend remains to be observed, if all acts of obtaining personal information from publicly available corporate information are treated as innocent, this way of thinking is obviously too much." Extensive thinking should be combined with the purpose and purpose of handling public information.

 

(Source: Legal Daily, 9th Edition, September 22, 2021)

 

Team Profile

 

"Gaopeng Criminal Semimonthly" is created by the criminal team of Gaopeng Law Firm, which brings together senior lawyers, former prosecutors, university criminal law professors and other legal elites. All members are from well-known universities and law schools. Team members have both profound theoretical foundation and rich practical experience. He can not only write books, establish speeches, teach and preach, but also handle practical cases and engage in court debates. The team has been dedicated to criminal business for decades, both in terms of purging the grievances of suspects and prosecuting victims. They have deeply studied the facts of the case and are fearless in their efforts, especially in some difficult and complex cases with significant social impact. Team members rely on their outstanding strength and sincere cooperation to achieve satisfactory results in a large number of cases.