Lawyer's character

"The defender of the appellant Shi Ling has spoken," the presiding judge said.

"Presiding judge, judge: The defender believes that the appellant Shi Ling used blackmail for the purpose of illegal possession and forcibly demanded 100,000 yuan from the victim, and actually received 50,000 yuan. His behavior did not constitute the crime of robbery, but constituted the crime of extortion. .The reasons are as follows:

Both robbery and extortion crimes can involve illegal possession of other people's property through threats. However, the on-the-spot nature of the threats made during the robbery and the on-the-spot nature of the property obtained are not available in extortion.

1. The immediacy of the threat

1. The crime of robbery is an act in which the perpetrator directly uses violent means to steal property from the person being robbed. The threat of extortion can be face-to-face or non-face-to-face, such as by phone, WeChat, etc.

In this case, the appellant Shi Ling used the excuse that the victim had an improper relationship with Jiang Yu to blackmail the victim and extort money. Although it was a face-to-face threat, it was done for a reason and did not use violent means to steal money.

2. The crime of robbery aims to obtain the victim's property on the spot. Therefore, in order to eliminate the victim's possible resistance, the perpetrator must threaten the victim with violence that directly violates the victim's body and coerce the victim to hand over the property on the spot.

The threat of blackmail is mostly to threaten the victim by destroying the person's reputation, revealing privacy, etc. Even if there is a threat of violence, the violence threatened is generally not directed against the victim, but against the victim's relatives and friends, in order to achieve the purpose of blackmailing the victim. The threat or coercion of extortion is not immediate, but usually threatens the victim to commit a certain act at some time in the future.

In this case, the appellant did not physically use violence on the victim while extorting money. Moreover, the evidence in the case shows that the victim himself was afraid that the appellant would make the affair public, so he proposed to give the appellant a certain amount of financial compensation.

3. The threat of robbery is imminent, and the victim has no time to think or make a choice except to deliver the property on the spot. The threat and coercion of the crime of extortion are not as urgent as the crime of robbery. The victim still has some room for consideration and choice in deciding whether to deliver the property.

In this case, the victim proposed to pay the appellant money to resolve the affair. The appellant agreed with the victim's suggestion, and the two parties also discussed how much money to pay. It can be seen that the appellant's extortion of money was not urgent.

2. The on-the-spot nature of obtaining money

The immediate nature of obtaining money is also an important difference between the two crimes. In the crime of robbery, if the perpetrator's behavior highlights the word "rob", he can only obtain money on the spot, and the amount of money stolen is random. It may be one or two yuan, or it may be one hundred or two hundred.

In the process of extortion, the perpetrator usually obtains the money after the fact. There is often a certain time interval between the extortion act and the acquisition of the money. Moreover, before the extortion act is carried out, the perpetrator will have a certain amount of money extorted. estimate.

In this case, the appellant did not obtain the money on the spot, and the two parties negotiated the amount of extorted money, which shows that the appellant did not have the intention to rob.

In summary, the defender believes that the appellant’s behavior does not constitute robbery but constitutes extortion. In view of the fact that the victim had some fault for the occurrence of the case and the appellant showed remorse, the defender suggested that the court change the sentence of probation to the appellant. complete. "Fang Yi said.

"Now the prosecutor will speak." the presiding judge said.

"Presiding judge, judge: We believe that the appellant used violent means to rob money for the purpose of illegal possession, which constitutes the crime of robbery. The facts determined by the first instance court are clear and the law is correctly applied. We ask the court to reject the appellant's appeal request in accordance with the law." The prosecutor said.

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

"Okay, presiding judge. Regarding the defender's defense, we mainly express the following opinions:

In this case, the appellant followed and broke into the hotel room shared by his wife and the victim, witnessed his wife and the victim together, and then violently beat the victim.

Under the violent coercion of the appellant, the victim was forced to agree to pay 100,000 yuan in compensation to the appellant. The appellant's behavior met the elements of the crime of robbery and should be convicted of the crime of robbery. complete. "The prosecutor said.

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

“Based on the prosecutor’s defense opinions and responses, the defender issued the following defense opinions:

The defender believed that after the appellant broke into the hotel room and saw his wife cheating on the victim, he then committed violence against the victim.

Regarding the appellant's violent behavior, the defender believes that it should be understood as Shi Ling's simple act of harm based on momentary anger, not violence committed for the purpose of robbery, which is also consistent with common sense. His violent behavior cannot be simply linked with subsequent extortion behavior.

Afterwards, in order to avoid the scandal being made public and to escape as soon as possible, the victim offered to compensate Shi Ling with money to settle the matter. At this time, Shi Ling had the intention to take the opportunity to extort his money.

The victim's intention was to "squander money to eliminate disaster", and the appellant's intention was to "take advantage of the opportunity to extort money." The two parties hit it off, so the appellant's extortion of money was justified. Shi Ling's request for the victim's money was a form of blackmail.

To sum up, although Shi Ling committed an act of violence in this case, his method of extorting money was not the use of violence or the threat of violence, but the extortion when the victim had an affair with Jiang Yu, and not all of the money obtained was Obtained on the spot, therefore, it does not meet the constitution of the crime of robbery. Should be convicted and punished for extortion. complete. "Fang Yi said.

…

After the trial, after deliberation by the collegial panel, the presiding judge pronounced the verdict in court.

The collegial panel held that the appellant Shi Ling, for the purpose of illegal possession, used threats and coercion to forcefully demand 100,000 yuan from others, but actually obtained 50,000 yuan. His behavior constituted the crime of extortion, and the amount was huge.

The original conviction and sentencing of the appellant Shi Ling for robbery was inappropriate and the sentence should be changed. The final sentence was changed: 1. The first-instance criminal judgment of the District People's Court on this case was revoked; 2. The appellant Shi Ling was guilty of extortion and sentenced to five years in prison.

The sentence was reduced from twelve years to five years. Although Shi Ling was still unhappy, he could only accept it. After the sentence was pronounced, he thought about how to reduce his sentence in prison and get out of prison as soon as possible.

As for his wife Jiang Yu, as early as when he was sentenced to twelve years in prison by the court of first instance, Jiang Yu filed for divorce through his lawyer. She could no longer live in the Shi family. Shi Ling was sentenced because of her. Not only could the Shi family not tolerate her, but her natal family was also extremely dissatisfied with her, because many of her natal family depended on the Shi family for their livelihood.

Jiang Yu is now Zhu Bajie looking in the mirror, not a human being inside or outside.