Lawyer's character

"Lawyer Fang, you didn't pick the case, did you? Did it benefit the case negotiation team? To be honest!" Ma Yi said with a smile.

"Benefits? What a conscience! If I really gave you benefits, would my performance almost fall short of the standard last year?" Fang Yi said with a wry smile.

He is not afraid of exposing his shortcomings, because last year his income reached the target, so there is no harm in talking about it.

"By the way, talking about the case, I took on a small case last year. Let's take a look at the charges. If you tell the truth, there will be no prizes. If you tell the truth, you will be fined a drink. What do you think? This is more interesting than a drinking order. More." Lawyer Song suggested.

"Okay, everyone here has a share, but I have to ask, Lawyer Song, who knows about the case you mentioned?" Huang Yuanchao said with his face flushed.

"Xiao Zhou and I organized it together. No one else knows the details. For the sake of fairness, the two of us will not participate." Lawyer Song said.

"Okay, this is okay. Lawyer Song, tell me. Ma Yi brings the wine glass and pours three glasses first." Huang Yuanchao followed up and said: "No, I forgot that we have a criminal expert here. Fang Yi is not allowed to advance in advance. Answer, and if you answer incorrectly, you will have two drinks.”

"Okay, just rely on you." Fang Yi leaned on the chair and smiled.

"I said it, everyone, listen carefully. The facts of the case are as follows:

Last summer, the defendant Xiao Wei (female), whose name I will not mention, followed the guests into a private room of a nightclub in this city to eat, drink, chat, and sing.

At around 11 o'clock in the evening, Xiao Zhou, a guest in the box, put his handbag containing cash and other items on his seat, and took his mobile phone to make a call outside the box. After the other guests in the box were busy for a while, seeing that it was getting late, they paid their bills and left the box with their clothes.

Xiao Wei went to the bathroom because she was in a hurry. When she came out, the guest had already gone out. The waiter is clearing away the wine bottles, fruit plates and garbage on the table.

Xiao Wei glanced at the handbag that fell under the sofa. She knew that the handbag belonged to Xiao Zhou, so she picked it up while the waiter was not paying attention, entered the bathroom again, and put the 20,000 yuan in cash in the bag into her own Inside the handbag, he threw the handbag in the cabinet under the wash basin in the bathroom, and then fled the scene.

After Xiao Zhou finished the phone call, he wanted to leave with his friends, but suddenly he remembered that he had forgotten his handbag, so he returned to the box and found that the handbag was missing.

Later, with the help of the waiter, he found the handbag in the cabinet under the wash basin. The documents were all there, but the money was gone, so Xiao Zhou called the police on the spot.

After the incident, the public security agency found through surveillance that the last person to leave the box was Xiao Wei, so it summoned Xiao Wei the next morning. When the latter arrived at the public security agency, he was frightened and told everything about the situation. Then the police searched his residence in accordance with the law and took the stolen money. All recovered.

The subject matter of this case is not big. The father of the client has consulted many lawyers, and the lawyers gave three opinions:

A． Xiao Wei secretly stole other people's finances for the purpose of illegal possession, which constituted the crime of theft.

B. Xiao Wei found an item forgotten by a guest in a public place, took it as his own, and refused to return it. This should be classified as a crime of embezzlement.

C. Xiao Wei found items forgotten by others in a public place. Although he had the purpose of illegally misappropriating other people's property, he had no intention of stealing and no act of stealing in secret, so it did not constitute the crime of theft. He also did not refuse to hand over the found property, so it did not constitute the crime of embezzlement. Should be innocent.

Come on, everyone, A, B, C, take your pick. "Lawyer Song said with a smile.

"Xiao Tian comes first." Huang Yuanchao smiled.

"I choose B. If you pick up other people's money in a public place and refuse to return it, I think it constitutes a crime of embezzlement." Tian Xin said.

"I choose A. As for the reason... I must be guilty. Let's exclude C first. There are two left. I drew lots and got A." Ma Yi said with a smile, holding two toothpicks, one long and one short.

"Tch, superstitious. Look at me." Huang Yuanchao took out a coin, tossed it up, then held it in his hand and opened it: "I choose B."

Everyone laughed, and after everyone decided on their options, they looked at Fang Yi.

"Lao Fang, it's your turn. Remember, you'll be fined two drinks if you answer the question wrong. We don't care what the law says. We only rely on the court's decision." Ma Yi said with a smile.

"I choose A." Fang Yi hesitated for a moment.

"What's the reason?" Zhou Ying asked with a smile.

"According to what Lawyer Song said, I think Xiao Wei's behavior meets the characteristics of the crime of theft. The reason is:

1. This case occurred in a private room of a nightclub. Although the nightclub is a public entertainment venue, it is closed in space and exclusive in use, which is different from public places such as squares, train stations, and airports.

Just like a hotel room, during the period when the guest uses the private room, the private room is in principle temporarily controlled by the guest, and the guest has actual control over his own items stored in the private room.

While the guest is using the box, even if the guest leaves temporarily for some reason, he or she still has actual control over the belongings placed in the box.

During this period, any person who enters the box and takes away the property placed by the guest in the box for the purpose of illegal possession shall constitute theft.

After the guest pays the bill and leaves the box, the items left by the guest in the box are under the control of the nightclub. The nightclub has the obligation to count, keep and return the items left by the guest. If the nightclub refuses to return the items left behind by the guests, it constitutes misappropriation.

However, if other people outside the nightclub enter the box without permission for the purpose of illegal possession and take away the property left by the guest, it is considered theft, not misappropriation.

The victim in this case, Xiao Zhou, went to make a phone call outside the box. When he was about to leave the nightclub with his friends, he suddenly remembered that he had not taken the handbag, so he returned to the box to pick up the handbag. It can be seen that the handbag was not Xiao Zhou's 'forgotten item'.

Due to the closed space of the box and the exclusivity of its use, Xiao Zhou's handbag was not actually out of his effective control. It cannot be concluded that Xiao Zhou's handbag was out of his actual control.

In addition, nightclub waiters have the obligation to take inventory of the guests' leftovers and forgotten belongings and return them to their owners in a timely manner after the guests leave.

After the guests in the box pay their bills and leave. All property in the box is under the temporary custody and control of the nightclub (specifically, the waiter employed by the nightclub who has the authority to clean and inventory the box). The defendant is not a waiter in the nightclub and has no right to the items forgotten by the guests. Safekeeping and control.

It can be seen that the nature of defendant Xiao Wei's behavior was not to pick up other people's forgotten things, so it did not constitute embezzlement.

2. The defendant Xiao Wei came out of the bathroom after the guests left. When the waiter was not paying attention, he placed Xiao Zhou on the sofa. He then took the handbag that fell under the sofa into the bathroom of the private room and stole cash from the bag. , and then hid the bag, documents and other items in the cabinet under the sanitary basin.

It can be seen that Xiao Wei had the subjective purpose of illegally possessing other people's property. Objectively, he took advantage of Xiao Zhou and the waiters in the box to steal the money in Xiao Zhou's handbag by secret means. The behavior is consistent with the characteristics of the crime of theft.

3. Xiao Zhou reported the case. Based on the information obtained from the surveillance video, the public security organs summoned Xiao Wei the next day and found out the facts of the case. They then searched his residence in accordance with the law, withdrew the 20,000 yuan stolen by Xiao Wei and returned it to the owner. .

This kind of stolen goods recovery behavior by the public security organs is an act of performing duties during the investigation process, which is completely different from the criminal suspect's voluntary return.

Therefore, this kind of stolen property recovery behavior by the public security organs cannot be used as a reason for Xiao Wei's "refusal to hand over" to plead innocent. That's my reason. "Fang Yi finished speaking and looked at everyone.