Lawyer's character

Two days later, Fang Yi called the prosecutor who was in charge of Zou Guang's case to inquire about the status of the protest. Because the communication between the two parties was smooth before, the other party was not secretive and told him that the Municipal Procuratorate also felt that there was something wrong with the verdict of this case. The charge was wrong and the sentence was too light. It is possible that the Municipal Procuratorate will change its opinion on the plea.

Fang Yi's heart sank after hearing this. It seemed that he had to prepare well for the second trial.

Because the case was relatively simple, the procuratorate's protest and the defendant's appeal focused on the crime and sentencing. The two parties had no dispute over the facts of the case. Therefore, the Intermediate People's Court quickly arranged a hearing.

On the day of the trial, Zou Daliang also came. He sat in the auditorium with grass growing in his heart, waiting for the final verdict.

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"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 prosecutor. "The chief judge said.

In both protest and appeal cases, the prosecutor should speak first, followed by the appellant and defender.

"Presiding Judge and Judge: We believe that the original judgment was wrong and the sentence was inappropriate. The reasons are as follows:

In this case, the defendant Zou Guang gained the victim's trust by fabricating facts. The victim voluntarily handed over his mobile phone and waited there. The defendant openly left the scene with the victim's consent. The victim had handed over the mobile phone and the mobile phone was out of his control. The victim Punishment has been implemented.

The defendant did not commit theft by taking advantage of others' unpreparedness and escaping secretly. Therefore, the crime of fraud should be found in this case. In addition, the defendant Zou Guang constituted a repeat offender and should be severely punished. The original verdict was inappropriate. It is recommended that the court change the charges and sentence the defendant to two years in prison. complete. "The prosecutor said.

After hearing the prosecutor's opinion, Zou Daliang in the auditorium immediately became nervous, "What?" One and a half years is not enough, the sentence must be increased to two years!

The appellant Zou Guang repeated the same rhetoric used in the first trial, pleaded guilty and accepted punishment, and affirmed that the court would reduce his punishment.

"The defender of the appellant Zou Guang expressed his defense opinion," the presiding judge said.

"Presiding Judge, Judge: We believe that the court of first instance mischaracterized the case and imposed an unusually heavy sentence. This case was a loss of property due to the victim's misunderstanding, which is in line with the essential characteristics of the crime of fraud and should be classified as a crime of fraud. The reasons are as follows:

First, the court of first instance held that ‘the victim only disposed of the “possession” of the mobile phone and other property because he was deceived, but not his ownership, so it should not be determined as a crime of fraud. This view is wrong.

The defender believes that in the case of fraud, as long as the victim transfers property or property interests to the perpetrator or a third party, it can be determined that the victim has committed disciplinary action. Therefore, the object of disposal can be ownership or possession. analyse as below:

First, the object of punishment in the crime of fraud can be possession, not necessarily ownership.

Under normal circumstances, there is no doubt that the owner has the right to dispose of the property, but under special circumstances, the possessor also has the right to dispose of the property.

For example, in a situation where an actor pretends to be the owner of a lost item, the person who picks up the lost item only temporarily possesses the lost item and does not enjoy ownership. The object of his disposal can only be the right of possession, but this does not affect the perpetrator's crime of fraud. of establishment.

Secondly, if the owner misunderstands and transfers possession, the crime of fraud can also be established.

Under normal circumstances, owners who fall into misunderstanding will voluntarily dispose of their ownership of property. However, under special circumstances, if the owner only disposes of the possession rights, the disposition in the crime of fraud can also be established.

For example, A tells B that he is going to hold an art exhibition and wants to borrow one of B's ​​paintings for the exhibition. However, A sells the painting behind B's back and then flees with the money. When owner B lends the painting, the object of punishment is limited to the possession of the painting. Rights, not ownership. But A still constitutes the crime of fraud.

Third, the perpetrator can completely infringe the ownership of the property through the victim's disposal of the right of possession.

In this case, the victim's punishment was only the possession of the mobile phone, not the ownership. Each victim has ownership of the mobile phone, and can transfer the ownership of the property to the appellant, or transfer the possession of the property to the appellant.

At the time of the incident, the victims only transferred the possession of the mobile phones to the appellant, but the appellant Zou Guang's behavior had violated the integrity of the victims' property ownership. Therefore, although the victim only transferred the possession of the mobile phone, it does not affect the establishment of the crime of fraud.

2. The court of first instance held that ‘possession refers to de facto control and only includes control within the scope of physical control’. The defender believed that this judgment was wrong.

We believe that domination includes not only physical domination, but also social conceptual domination.

In this case, when the victim and the appellant were at the scene of the crime, even if the appellant directly held the victim's mobile phone, from the perspective of public understanding, the victim could still be considered to be in possession of the property, which was only a case of slack possession. At this time, the possession and control relationship of the mobile phone has not been legally transferred, and the victim has not disposed of the mobile phone.

(Possession relaxation: The theory is too abstract. Here is an example: For example, when dining in a restaurant, the waiter brings plates of dishes to the table. Although the customer physically has direct control over the plates and bowls and chopsticks, from a public perspective, the customer is When the plates and tableware are used in the restaurant, the restaurant still owns the plates and tableware, which is a slack possession.)

However, if the perpetrator takes the property away from the scene and the victim does not stop it, it should be considered that the relationship of possession and control of the property has changed.

In this case, after the victim handed the mobile phone to the appellant Zou Guang, the victim was still present and took possession of the property. The victim could ask the appellant to return the property at any time. This was only a case of relaxation of possession.

When the appellant Zou Guang left the scene with the victim's mobile phone for reasons such as driving a police car, the victim did not ask for the return of the mobile phone, but tacitly agreed to the appellant's departure from the scene, allowing the appellant to achieve complete control of the property. At this time, the appellant should be found Obtained legal possession.

If the appellant secretly escapes after obtaining the victim's mobile phone, it constitutes the crime of theft; if the appellant openly takes the mobile phone and escapes, it can be determined as the crime of robbery; if the appellant uses violent means to make the victim afraid or unable to resist and then leaves, it can be Convicted of robbery.

But the appellant in this case did not do so. After the victims knew that the appellant was going to leave the scene with his mobile phone, the victims did not express any objection, and some victims even expressed their explicit consent.

When the appellant took the mobile phone away from the scene, the victim did not object, but acquiesced and agreed to the appellant taking the mobile phone away. This was entirely due to the appellant’s deception and was in line with the essential characteristics of the crime of fraud. Therefore, this case should be classified as a crime of fraud. .

In addition, according to the case file materials provided by the public prosecutor, the appellant truthfully confessed his crime after arriving at the case, and voluntarily confessed to the same type of crime that the public security organs have not yet grasped. If he voluntarily pleads guilty during the trial, he may be given a lighter punishment. In view of this, the court is requested to punish the appellant leniently in accordance with the law and sentence the appellant to one year in prison. complete. "Fang Yi said.

The recommendation of a one-year prison sentence was discussed with Zou Daliang. Zou Guang also agreed to this sentence. Although he did not want to go to jail, the mistake had been made and he had to bear the corresponding consequences.

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