Lawyer's character

"Have you also seen the reports online?" the male lawyer asked in a low voice.

"Well, I saw it. The domestic lawyer system has been reformed for so many years, and I am confused, when did we become national civil servants! I have to see how the procuratorate and the court explain it." The female lawyer said with a look on her face He said with a puzzled expression.

"Who says it's not the case! It's so messed up. In order to take advantage of the lawyer, I changed my identity. What a hatred. We have to be careful when doing criminal cases in the future." The male lawyer sighed in a low voice.

Some of the lawyers around were chatting and some were smoking. Everyone had only one purpose: to observe the case of Lee Myung-bak deliberately leaking state secrets.

At nine o'clock in the morning, the court door opened, and people outside the door walked in one after another.

In the court, the judge was reading out the contents of the first-instance verdict. Fang Yi glanced at the auditorium. It was full of good guys. Director Sun, Zhao Zhongcheng and Li Mingbo's wife were sitting in the first row.

…

"The appellant Lee Myung-bak will first read out the appeal or state the reasons for the appeal." The presiding judge is a woman in her forties with short hair. The judges on both sides of her are two male judges, both of whom have similar faces. of seriousness.

“I believe that the facts found in the first instance were wrong and the law used was wrong for the following reasons:

1. Although I let Li Youpeng see the copy of the case file, I did not let him copy the case file.

2. The dossier materials copied by Li Youpeng were not marked with a secret level, nor were they marked as state secrets. After I copied the case file, no one informed me in any form that the copied case file was a state secret.

3. The appraisal conclusion that the criminal case files copied by us are state secrets has no basis in law and cannot be used as evidence.

4. I am an ordinary lawyer, not a public servant. The court of first instance was wrong to determine that I was a public servant..."

Li Mingbo is a lawyer, and he had discussed the defense plan with Fang Yi before, so before the trial, he wrote down all the defense content he could think of, whether reasonable or unreasonable, and planned to punch the old master to death, as long as it was If one punch hits the vital point, he will be free. This is what he really thinks at this time.

"The appellant's defense lawyer will state the reasons for the appeal below," the presiding judge said.

"The defender believes that the original judgment was unclear in determining the facts, the evidence was insufficient, and the application of the law was wrong. The appellant Li Myung-bak did not commit a crime. He requested the court to revoke the original judgment and acquit him in accordance with the law. The reasons for the appeal are as follows:

According to the provisions of Article 398 of the Criminal Law, if a staff member of a state agency violates the provisions of the Law on Keeping State Secrets and leaks state secrets intentionally or negligently, and the circumstances are serious, he or she shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are particularly serious, , shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. If a non-state agency employee commits the crime in the preceding paragraph, he shall be punished as appropriate in accordance with the provisions of the preceding paragraph.

1. According to the above provisions, the subject of the crime of intentionally leaking state secrets should be a staff member of a state agency. The appellant is not a staff member of a state agency, but an ordinary lawyer. He is not a qualified subject for this crime at all. The court of first instance found that the appellant is a state official. It is an error in fact finding.

2. The case file materials copied by the appellant were not marked with any confidentiality words, and no court staff informed the appellant that the copied case file materials involved state secrets, nor did the appellant sign any confidential documents.

When the appellant copied the file materials of the corruption case, the case had already been transferred to the court for trial. Whether the file at this time is a state secret depends on whether the content of the file involves state secrets.

The appellant was dealing with an ordinary corruption case, and it was heard in public and did not involve state secrets at all. Therefore, the case files copied by the above-mentioned people did not belong to state secrets.

Therefore, the defender believes that the appraisal opinion issued by the confidentiality agency that the dossier materials are classified state secrets should not be used as the basis for conviction in this case. There is insufficient evidence in this case.

Please ask the court to acquit the appellant in accordance with the law. complete! "Fang Yi said.

"Appellant Li Mingbo, do you have any objection to the facts and charges found in the first-instance judgment?" The presiding judge followed the procedure step by step.

"I have objections. I do not recognize the charges and facts found by the court of first instance..." Li Mingbo said.

It's now time, and he definitely can't admit it. If he does, he will go to jail, his lawyer's license will be revoked, and his career will be terminated.

"The prosecutor asked the appellant questions about the facts found in the first-instance judgment," the presiding judge said.

The two male prosecutors sitting at the prosecutor's table opposite Fang Yi frowned. Ever since they took over the case, they had been saying hello to the eight generations of the ancestors of the two prosecutors in the first instance.

Play! Can a lawyer be a public servant? You pay me wages! This logic is unprecedented and unprecedented. How come there is no common sense at all! Drink too much!

Now that the case has been accepted, the procedure must continue. The leading male prosecutor could only say rationally: "Appellant Lee Myung-bak, did you go to the court to review the case yourself?"

"Yes, I went by myself." Li Mingbo said.

"But according to the surveillance video of the filing court of the court, you did not go alone. There were two people who entered the filing court gate with you." The male prosecutor said.

"Yes, Li Youpeng and Li Yong entered the filing court with me at that time, but they were not present when I borrowed the case file to make copies. They have been waiting in the filing court." Li Mingbo said.

"After leaving the court, who else has seen the file of Li Wen's corruption case? Have you allowed others to see it?" the male prosecutor asked.

"Li Youpeng borrowed it from me, but returned it to me early the next morning." Li Mingbo said.

"Did you know that Li Youpeng copied the case file again?" the male prosecutor asked.

"I don't know." Li Mingbo said.

"Later, when you went to investigate and collect evidence, who went with you?" the male prosecutor asked.

"A trainee lawyer from our law firm went with me." Li Mingbo said.

"How did you find the witness in Li Wen's corruption case?" the male prosecutor asked.

"Li Youpeng took us there. Because we are not familiar with the local area, we need someone to guide us." Li Mingbo said.

"Did you go all the way to find witnesses to investigate and collect evidence? Did it go well?" the male prosecutor continued to ask.

"It went smoothly. The parties involved were very cooperative," Li Mingbo said.

In fact, when Li Mingbo saw Li Youpeng looking for witnesses, he seemed familiar with the road, especially since there was a witness living in the village. Li Youpeng drove directly over and stopped in front of his house. He suspected that Li Youpeng had looked for witnesses before. However, the witnesses were all colleagues of his father Li Wen, and Li Mingbo thought that Li Youpeng might have known them before and had visited them at home, so he didn't pay much attention to them.

"The witnesses involved in the case gave different testimony and evidence than before. Have you ever doubted the authenticity?" the male prosecutor asked.

"At that time, there were only three people at the scene: me, the intern lawyer from our firm, and the witness. I asked questions, the intern lawyer took notes, and then asked the witness to give a handwritten testimony. I don't think there is any problem." Li Mingbo said.

He really doubted the authenticity of the witness's testimony, because what the witness said was exactly the opposite of the testimony in the case file, and he said it very smoothly, as if he had memorized it. However, the testimony was indeed written by the witness himself, signed and fingerprinted. There were quite a few of them, so Lee Myung-bak didn’t ask any more questions.

"Has Li Youpeng ever talked to you about witness testimony?" the male prosecutor asked.

"No, he never mentioned it to me, and I didn't tell him either," Li Mingbo said.

Fang Yi knew the reason why the prosecutor asked this question, and Li Mingbo also knew that this was a trap. The prosecutor asked back and forth because he wanted to ask if it was you, Li Mingbo, who instructed Li Youpeng to find witnesses to tamper with the testimony. If so, then yes Relying on the crime of obstructing testimony, even if the charges in this case cannot be proven, a separate prosecution can be made to accuse Lee Myung-bak of obstructing witnesses from testifying.

After Li Youpeng was arrested, he blamed himself for secretly copying the case files and finding witnesses to provide false evidence and testimonies. He did not involve Li Yong and Lee Myung-bak, and only mentioned that Lee Myung-bak had lent him the case files for viewing.

Moreover, several witnesses also stated to the public security organs that Li Youpeng was the only one who asked him to tamper with his testimony at that time, and he had not seen anyone else.

The prosecutor wanted to find a breakthrough from Lee Myung-bak, so he asked this question, but now it seems that Lee Myung-bak did not know about the obstruction of testimony.

…

"Do the prosecutors, defenders, and appellant have any new evidence to submit?" the presiding judge asked.

"There is no new evidence." All three parties said.

"The court investigation is over and the court debate is now underway. Before the debate, the court draws the attention of both the prosecution and the defense that the debate should mainly focus on determining guilt, sentencing and other controversial issues.

Let me first give the floor to the appellant. "The chief judge said.

Lee Myung-bak still used the same words, but his words were more detailed and broader. As a lawyer, Lee Myung-bak is definitely more able to speak than the average defendant, which is normal.

"The defender of the appellant Lee Myung-bak spoke," the presiding judge said.

"Presiding judge, judge: The defender believes that the appellant Li Mingbo, as the defense lawyer in Li Wen's corruption case, allowed the defendant's relatives to review the case evidence materials that he copied in the court, which does not constitute the crime of intentionally leaking state secrets. The reasons are as follows:

1. Targets of the crime of intentionally leaking state secrets

Paragraph 1 of Article 398 of the "Criminal Law" stipulates: "If a staff member of a state agency violates the provisions of the Law on Keeping State Secrets and leaks state secrets intentionally or negligently, and the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are special, If serious, the offender shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. ’

It can be seen that the object of the crime of intentionally leaking state secrets is state secrets, and the case evidence materials copied in the court that the appellant Li Myung-bak asked Li Wen's relatives to review in this case do not belong to state secrets.

2. The criminal subject of the crime of intentionally leaking state secrets

According to Article 398 of the Criminal Law, the subjects of the crime of intentionally leaking state secrets are state agency staff and non-state agency staff who know state secrets.

The appellant in this case, Li Mingbo, is a lawyer. According to the Lawyers Law of the People's Republic of China, a lawyer is a 'practitioner who provides legal services to the society'. He is not a staff member of a state agency, nor is he a member of the system bound by the confidentiality provisions of the prosecutorial department. Persons with knowledge of state secrets.

Moreover, the confidentiality regulations of the court system do not identify the case evidence materials as state secrets. Naturally, the appellant in this case has no obligation to keep the case evidence materials as state secrets.

It can be seen that the court of first instance was wrong in identifying the appellant Lee Myung-bak as a staff member of a state agency with specific obligations.

3. Subjective elements of the crime of intentionally leaking state secrets

The subjective element of the crime of intentionally leaking state secrets is knowingly leaking state secrets. Due to the confidentiality regulations of the procuratorate and the court system, the documents themselves are confidential, and it is impossible for the appellant Lee Myung-bak to know about these documents and their contents.

According to the National Secrets Law and relevant confidentiality provisions of procuratorial organs, procuratorial organs at all levels should indicate the confidentiality level and confidentiality period of litigation documents generated during litigation activities. For litigation documents that are not suitable for direct marking, relevant personnel should be informed and registration records should be made.

However, the file materials of Li Wen's corruption case copied by Lee Myung-bak, the appellant in this case, did not indicate the confidentiality level and confidentiality period, and no personnel from the court or the procuratorate informed Lee Myung-bak that he should fulfill his confidentiality obligations and make relevant registrations.

Therefore, it is subjectively impossible for the appellant in this case, Lee Myung-bak, to know that the case file materials copied in the court were state secrets, and Lee Myung-bak did not have criminal intent.

To sum up, the behavior of the appellant Li Myung-bak in this case by allowing relatives of Li Wen (the defendant in the corruption case) to review the case file materials that he copied in the court does not constitute the crime of intentionally leaking state secrets.

Please ask the court to acquit the appellant Li Myung-bak in accordance with the law. complete! "Fang Yi said.

"The prosecutor will now speak." The presiding judge stopped the pen in his hand and looked up at the prosecutor's seat.

"Presiding judge, judge: We believe that the appellant Li Mingbo secretly showed the criminal case file materials copied from the court to the defendant Li Wen's son Li Youpeng, which led Li Youpeng to find the witnesses involved in the case and persuaded him to tamper with the evidence, which caused harm to the trial of the case. obstacles, leading to serious consequences.

The court of first instance found the facts clearly and applied the law correctly, and asked the court to reject the appellant’s claim in accordance with the law. complete. "The male prosecutor said.

"The prosecutor can respond to the defender's defense opinions," the presiding judge said.

“In response to the defender’s defense opinions, our views are as follows:

According to the "Regulations on the Specific Scope of State Secrets and Their Classification Levels in Procuratorial Work" and its annex "Regulations on Determining the Confidentiality Level and Confidentiality Period of Procuratorial Litigation Documents", the 'Interrogation of the Defendant's Transcript' and the 'Interrogation of Witness Testimonies' are confidential-level state secrets and shall be kept confidential. The time limit is set as 'before trial'.

Article 22 of the "Regulations on the Specific Scope of State Secrets and their Classification Levels in Procuratorial Work" stipulates that strict registration and handover procedures must be followed when accepting and reviewing case files transferred for arrest approval, prosecution, and protest cases. Review transcripts, supplementary investigation materials, defense outlines, procuratorial committee and collective discussion records, etc. shall be kept strictly confidential. It shall not be provided to unrelated persons without approval.

According to the above provisions, when the appellant Lee Myung-bak copied the case file materials, the Li Wen corruption case had not yet been tried and was before the trial. Moreover, the case file materials copied by Lee Myung-bak included supplementary investigation materials. Therefore, the case file materials were confidential-level state secrets.

Although the appellant Lee Myung-bak was not a national official, he knew and leaked state secrets, which still constituted the crime of intentional leaking of state secrets. complete! "The male prosecutor said.

“The defender can respond to the prosecutor’s opinions,” the presiding judge said.

"Presiding judge, judge: Based on the prosecutor's defense opinions and responses, the defender issued the following defense opinions:

First, the confidentiality provisions of the prosecutorial office do not apply to lawyers.

The "Provisions on the Specific Scope of State Secrets and Their Classification Levels in Procuratorial Work" and its annex "Provisions on Determining the Classification Level and Confidentiality Period of Procuratorial Litigation Documents" and other procuratorial organ confidentiality regulations are intended to enable the people's procuratorates at all levels to strictly abide by relevant regulations in case handling work. Secrecy laws and regulations safeguard the security of state secrets and ensure the smooth progress of various procuratorial activities. This provision applies to case-handling personnel of the procuratorial organs and personnel within the procuratorial organs who need to be exposed to cases due to their work.

The "interrogation of defendant's transcripts" and "witness questioning of testimonies" are designated as confidential-level state secrets, mainly to ensure the smooth progress of the investigation work of cases accepted by the procuratorial organs. The subject of restraint is the case-handling personnel of the procuratorial organs and the internal work needs of the procuratorial organs. The purpose of contacting the persons involved in the case is to prevent the relevant persons from leaking case file materials and bending the law for personal gain.

According to the provisions of Article 38 of the Criminal Procedure Law (revised in 2012), defense lawyers may consult, excerpt, and copy the case file materials from the date of review and prosecution of the case by the People's Procuratorate. (After the Criminal Procedure Law was revised in 2018, the above provisions were changed from Article 38 to Article 40)

Therefore, during the review and prosecution stage, the confidentiality provisions of the prosecutorial office do not apply to defense lawyers.

Second, after the case file is transferred to the court, if the defense lawyer consults, excerpts, and copies the criminal factual materials in accordance with the law, and leaks them, it does not constitute the crime of leaking state secrets.

When the procuratorate initiates a public prosecution and the criminal case file materials are transferred to the court, whether the criminal factual materials in the case file are state secrets depends on whether the criminal case involves state secrets and whether it is a confidential case. If the case involves secrets or there are confidential documents in the case, the confidential materials involved should be marked with a confidentiality level and confidentiality period, and the personnel involved should abide by the currently effective confidentiality regulations of the court system.

The Lee Wen corruption case handled by the appellant Lee Myung-bak was just an ordinary corruption case and did not involve state secrets. The court also did not inform the appellant Lee Myung-bak that there were confidential documents in the Lee Wen corruption case, and the case file materials copied by the appellant Lee Myung-bak It is also not marked with the word confidential and the level of confidentiality.

In addition, after the defender searched the relevant legal provisions, it was found that the current confidentiality regulations of the court system did not include materials involving alleged criminal facts in cases other than cases involving state secrets, including "interrogation transcripts of the defendant" and "interrogation of witness statements". Within, it is stipulated as a state secret.

In view of this, after the prosecution brought the case and before the court session, the appellant Li Mingbo, as the defense lawyer in Li Wen's corruption case, reviewed, excerpted, and copied the "Interrogation Record of the Defendant" and "Interrogation of Witness Testimonies" from the case file in accordance with the law. "The act of allowing defendant Li Wen's relatives to watch does not constitute the crime of leaking state secrets.

If the appellant Lee Myung-bak uses the known case file information to induce relevant witnesses to change their testimony contrary to the facts or commit perjury, he will be suspected of committing the crime of obstructing testimony. However, the appellant did not commit the above-mentioned behavior, and therefore it did not constitute the crime of obstructing testimony. "After Fang Yi finished speaking, he felt his throat was a little dry, so he stopped and swallowed.

The reason why the crime of obstructing testimony was mentioned was mainly because the prosecutor had previously wanted to bring it here. Fang Yi was afraid that the other party would hold on to it, so he simply mentioned it in this case to dissuade the prosecutor from pursuing separate prosecutions.

“Third, criminal factual materials no longer belong to state secrets after they are transferred to the court.

As mentioned above, although the procuratorial organ's confidentiality regulations set the confidentiality period of criminal factual materials (such as 'interrogation transcripts of defendants' and 'interrogation of witness statements') to 'before trial', this provision is inconsistent with the provisions of the Criminal Procedure Law. The regulations are inconsistent.

Article 36 of the "Criminal Procedure Law" (amended in 1996) stipulates that defense lawyers may consult, excerpt, and copy the litigation documents and technical appraisal materials of the case from the date of review and prosecution of the case by the People's Procuratorate... From the day the People's Court accepts the case, defense lawyers may review, extract, and copy materials on the criminal facts alleged in this case...

The so-called "criminal fact materials" mainly refer to various evidentiary materials including the defendant's confession and witness testimony.

According to the above provisions, once a criminal case is transferred to the court for prosecution, all evidentiary materials, including the defendant's confession and witness testimony, must be publicly presented, read out and cross-examined in court. There are no longer any secrets and they no longer belong to the state. It is secret, so the law does not prohibit the lawyer from giving it to others for viewing.

In 2012, the revised Criminal Procedure Law changed the above article to Article 38. The specific content is that defense lawyers may review, excerpt, and copy the case from the date of review and prosecution of the case by the People’s Procuratorate. case file materials.

At the same time, paragraph 4 of Article 37 stipulates that relevant evidence can be verified with criminal suspects and defendants from the date the case is transferred for review and prosecution.

In other words, after the 2012 amendment to the Criminal Procedure Law, defense lawyers can access and copy case file materials no matter whether they are at the stage of prosecution review by the procuratorate or after the court accepts the case, without distinguishing whether they are criminal factual materials.

It can be seen that it is incorrect to set the confidentiality period of criminal factual materials to 'before trial' and conflicts with the Criminal Procedure Law. The Criminal Procedure Law should prevail.

The defender believes that after the court accepted the case, the defendant's confession, witness testimony and other criminal factual materials in the case file copied by the appellant Lee Myung-bak should not be classified as state secrets.

To sum up, when the appellant in this case, Li Mingbo, was handling Li Wen's corruption case, his behavior of allowing Li Wen's relatives to review the case evidence materials did not constitute leaking state secrets and did not constitute the crime of intentionally leaking state secrets. complete. "Fang Yi said.

…

After the gavel was struck, the presiding judge announced a ten-minute adjournment and announced the verdict in court later.

Fang Yi sat at the defense table and drank a swig of mineral water. He looked at his watch and saw that it was already eleven forty. At this time, his stomach rumbled, and unknowingly he was already quarreling with each other. One morning.

Fang Yi did not dare to look at the people in the auditorium. He was afraid of seeing the hopeful eyes of Lee Myung-bak's wife. Her eyes put more pressure on him than Mount Tai. He was afraid that the court would reject the appeal and uphold the original verdict.

Ten minutes later, the collegial panel entered the court.

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