【Basic Information of the Parties and Defenders】

Defendant: Zhao, male, was criminally detained on December 2, 2012 on suspicion of theft. He was arrested on January 8, 2013 with the approval of a district procuratorate in Guangzhou. The procuratorate filed a public prosecution on August 21, 2013, decided to withdraw the prosecution on June 11, 2014, and made a decision not to prosecute on June 24. Zhao was released on June 26 of that year.

Defender: Nan Fang, a lawyer from Guangdong Legal Shengbang Law Firm.

【Suspected charges】

Larceny

【Brief Case Description】

In February 2010, Company A appointed Mr. Wang, the Director of the Investment Department, to store a batch of leather materials (collateral for a debt of 1 million yuan) in the warehouse and sell them at an appropriate price to recover economic losses. In July 2010, Wang resigned from the company, but the company still entrusted the subsequent processing of leather materials to Wang for follow-up. In 2011, Company A inquired with Wang about the handling of the leather material. Wang pleaded not knowing and informed the company of the warehouse address. The company found the warehouse that Wang had informed them, but found that the leather material was no longer present, so they immediately inquired with Wang. Wang claimed that the batch of leather materials was transported by Zhao as an employee of Company A in December 2010. Due to the fact that Company A does not have an employee named Zhao and has not entrusted Zhao with the disposal of leather materials, Wang ignored this matter on the grounds that he has already resigned. Company A suspected that Wang and Zhao, among others, had colluded to embezzle the company's property and reported the case to a district police station of Guangzhou Public Security Bureau. After investigation by the public security organs, it was found that one day in December 2010, Zhao stole a batch of leather materials stored by Company A in the warehouse without the consent of Company A (as there were no physical objects, it could not be valued), and then resold them to others. It was found that Zhao charged 350000 yuan for the leather materials due to this matter. The public security organs transferred the case to the procuratorate for examination and prosecution on the grounds that Zhao was suspected of theft, and the procuratorate filed a public prosecution with the court on the grounds that Zhao was guilty of theft.

【The focus of controversy in this case】

There is no dispute between the prosecution and defense lawyers regarding the fact that the defendant Zhao took the leather from the warehouse and collected a transfer fee of 350000 yuan. However, there is a significant controversy over whether the existing evidence is sufficient to prove that the defendant Zhao constitutes theft, mainly manifested as

1、 Is the defendant Zhao's behavior a secret theft? Is there a fact that Zhao is authorized to remove goods from the warehouse for sale?

2、 Can the amount of stolen goods be used to determine the amount of theft for criminal charges?

【Opinions of both the public prosecution and defense lawyers】

The prosecution believes that the defendant Zhao secretly stole leather materials from the warehouse and sold them without the consent of Company A, which constitutes theft of property from others. The theft amount should be determined based on the sale of 350000 yuan, and criminal responsibility should be pursued in accordance with the law for theft.

The defense lawyer believes that for the leather loss that does exist in Company A, the company can file a civil lawsuit with the people's court in accordance with the law, requesting relevant personnel such as Wang, Zhao, and the lessor He to bear corresponding civil compensation responsibilities according to their respective faults and recover the economic losses suffered. Not as long as the reporter has economic losses, regardless of whether they have violated the Criminal Law, criminal litigation is used to pursue the legal responsibility of the relevant responsible persons, and criminal litigation is abused to replace civil litigation to intervene in economic disputes. The defendant Zhao's behavior does not meet the criminal constitutive requirements of theft, and the amount of theft cannot be determined based on the amount of stolen goods sold. The facts of the prosecution's accusation are unclear, and the evidence is insufficient, making the accusation untenable.

1、 The defendant Zhao does not meet the criminal constitution of theft

Article 264 of the Criminal Law of China clearly stipulates the crime of theft, which objectively manifests as the act of secretly stealing public or private property. Secret theft "refers to the method that criminals subjectively assume will not be detected by the owner, custodian, or handler of the property, and secretly take the property.

The fact of this case is that there is insufficient evidence to prove that Zhao used secret theft to remove the leather materials stored by mortgagee A company from the warehouse, as follows:

1. The lessor of the warehouse, He, was aware that Zhao had removed the leather material.

According to the confession of the defendant Zhao, Wang's classmate, also known as the lessor He, had the key to the warehouse. On the day of the incident, he arranged for a worker to take the defendant Zhao and the buyer into the warehouse building and bring them into the warehouse where the leather materials were stored; That afternoon, the lessor, Mr. He, personally arrived at the warehouse and witnessed the defendant, Mr. Zhao, moving leather materials.

The lessor, He, confirmed that on the day of the incident, he arrived at the warehouse and saw the defendant, Zhao, who was moving the goods. He also knew that the defendant, Zhao, had paid the rent owed by Company A;

Wang confirmed that the lessor, He, keeps a key to the warehouse; Buyer Chen and witness Zhao confirmed that the warehouse building has a duty room and security personnel are on duty.

The above proof: Mr. He, the lessor and custodian of the warehouse in this case, was aware that the defendant Zhao had removed the leather materials from the warehouse on the day of the incident and was present without any obstruction. In this case, Zhao moved the goods from the warehouse without secretly stealing them.

2. As the authorized leather processing agent of warehouse lessee Company A, Wang has the possibility of knowing and agreeing to Zhao moving the goods and selling them.

(1) The authorization of Company A to pursue debt by Zhao is an objective fact

On August 6, 2009, the borrower Lin borrowed RMB 1 million from the victim A company and delivered a batch of leather materials as collateral to A company. The loan term was one month. If Lin did not repay the loan in full at the expiration of the agreed loan term, the victim has the right to dispose of the collateral to repay the debt. Afterwards, the borrower defaulted, and Company A entrusted Company B, the defendant Zhao, in writing on April 14, 2010 to recover the debt from the borrower. Both parties signed the "Entrusted Agency Debt Clearing Agreement". After signing the agreement, Zhao failed to pursue debt twice. This fact has been confirmed by the "Loan Receipt", "Entrusted Agency Debt Clearing Agreement", and testimonies from Vice General Manager Gan of Company A, employee Liang, and others.

(2) It is an objective fact that Company A authorizes Wang to continue to follow up on leather processing after resigning

Mr. Gan, Deputy General Manager of Company A, confirmed that before Mr. Wang resigned in July 2010, he was responsible for handling the loan, collection of collateral, recovery of funds, and finding someone to sell the collateral after failing to recover the funds; The situation of follow-up after resignation: Firstly, sometimes the company boss will ask Wang to come back to the company to inquire about progress, and Wang has come back; Secondly, register creditor's rights at Huaxia Bank; Thirdly, reporting to the company twice that the warehouse lessor requires the company to pay the rent; Fourthly, a colleague in the company who knows someone in the cowhide business once contacted Wang to see the goods, but was rejected by Wang due to his low quotation; And it was confirmed that the company authorized Wang to sell the collateral because the Taiwanese boss ran away and wanted to try to recover the loss. How much money could he sell for.

Li, the legal manager of Company A, confirmed that Wang resigned and left the company on July 31, 2010. However, during his resignation and handover of work, he was willing to continue tracking the loan project of Qingyuan Lin, including the follow-up of the warehousing of 11 foreskin leather products, because the interest and late fees of Lin's loan have not been repaid yet; In addition, as only Wang knew the lessor He, the company agreed that he would continue to track the warehousing of leather goods.

The two "Case Reports" issued by Company A on May 19 and 20, 2011 also confirmed the above facts.

Regarding whether Wang will continue to follow up on the handling of leather materials after his resignation, witnesses Gan, Li, victim A company, and documentary evidence form a chain of evidence, jointly confirming that Wang had been following up on the loan and collateral handling of Lin in the Qingyuan project before Wang resigned. After the goods were moved to the warehouse, only Wang had contact with the lessor He. Therefore, the company agreed that Wang would continue to be responsible for handling this matter after his resignation, Afterwards, the company did not withdraw the authorization, and Wang himself did not indicate to the company that he would no longer continue to follow up.

(3) It is an objective fact that Wang authorized the defendant Zhao to find a buyer for the leather materials in the warehouse

After the debtor Lin failed to recover the debt, Wang entrusted the defendant Zhao to find a buyer for the mortgaged leather material in order to process it as soon as possible. Both Wang and the defendant Zhao acknowledge this fact.

(4) From the way the defendant Zhao entered the warehouse, there is a possibility that Wang knew and agreed to the defendant Zhao moving the leather material out of the warehouse and selling it

Firstly, there is sufficient evidence to prove that the key to the warehouse was not kept by the defendant Zhao

The lessor, Mr. He, confirmed that the lock cylinder of the warehouse key was purchased by Company A, and the key was kept by Company A and not given to Mr. He; It's unclear who keeps the keys for Company A and He.

Company A:

Li, the company's legal manager, confirmed that the warehouse keys should be stored in the company's investment department, and the keys are in Wang's hands. He did not hand over the keys for handover when he resigned;

Wang, the former director of the company's investment department, confirmed that the defendant Zhao should not have a warehouse key, which is kept by He, the company's risk control manager; One key is kept by the company, Mr. He, and the other key is kept by the lessor, Mr. He.

The former risk control manager of the company, He, confirmed that He does not have the warehouse key, and it is unknown who keeps the warehouse key, nor is it known whether Wang returned the key to the company when he resigned.

The defendant Zhao's confession confirms that he does not have a warehouse key; The key to the warehouse is kept by Wang's classmate, and Wang should also have the warehouse key.

The above facts reflect that the custodian of the warehouse key is between He and the employees of Company A, regardless of which party holds it. In short, the defendant Zhao does not have the warehouse key.

Secondly, there is no evidence to prove that the defendant Zhao entered the warehouse by prying a lock or equipping himself with a key;

Because the warehouse involved in the case was being renovated at the time of the incident, there were no on-site inspection records or inspection records in this case, and there was no evidence to prove that the defendant Zhao entered the warehouse by prying a lock or equipping himself with a key.

Thirdly, the existing evidence proves that someone opened the warehouse with a key on the day of the case, and the defendant Zhao was able to enter the warehouse to move the goods. Regarding how to enter the warehouse, the defense lawyer has analyzed and inferred that there are three situations:

The first scenario: As the lessor of the warehouse and the custodian of the keys, He colluded with the defendant Zhao to remove and sell leather materials, thus opening the warehouse for the defendant Zhao.

If confirmed, He and defendant Zhao would be accomplices suspected of theft or embezzlement, but currently there is no evidence to prove the existence of such a situation in this case, and it is uncertain whether such a situation exists.

The second scenario: Wang, authorized by the company, agrees to the defendant Zhao to move and sell the leather material, and personally opens the warehouse for the defendant Zhao.

The evidence in this case shows that Wang of Laifa had not been to Cangxiang, and both Wang and the defendant Zhao recognized this fact, which can be ruled out;

The third situation: Wang, authorized by the company, agreed to the defendant Zhao to move and sell the leather material, but instead of going to the warehouse, I entrusted the lessor to open the warehouse for the defendant Zhao.

The evidence in this case shows that the statement made by the defendant Zhao in court confirms that Wang verbally entrusted the defendant Zhao to handle the batch of leather materials. The defendant Zhao repeatedly contacted buyers to inspect the goods, and each time he went to the warehouse to inspect the goods, he called Wang first. Wang himself or Wang's classmate (i.e. the lessor He) would come and open the door; Before selling the leather material, the defendant Zhao informed Wang that the buyer had offered 100000 yuan. Wang claimed to consult the leaders of Company A, and later replied that Company A had agreed; The time for taking the buyer to move the goods on the day of the incident was also agreed upon by the defendant Zhao, Wang, and the lessor He; On the day of the incident, the lessor, Mr. He, arranged for workers to take the defendant, Mr. Zhao, the buyer, and others into the warehouse, and also provided elevators to transport the goods.

Wang confirmed that during his tenure, he did indeed entrust the defendant Zhao to help sell the leather material. Since Wang entrusted the defendant Zhao to sell leather materials during his tenure, Company A still authorized Wang to handle the leather materials after Wang resigned, which means that Wang still needs the defendant Zhao to help him sell the leather materials. Although Wang claimed in the transcript that he did not personally handle this matter after leaving, it is unclear how the defendant Zhao handled it. But the testimony clearly does not conform to common sense: as mentioned earlier, it is an objective fact that Wang is still following up on the handling of the leather material after leaving, and there is a possibility of continuing to entrust the defendant Zhao to help sell the leather material.

The confession of the defendant Zhao and the testimony of Wang confirm that there is a possibility in this case that Wang agrees to the defendant Zhao's removal and sale of leather materials, and entrusts the lessor He to open the warehouse for the defendant Zhao.

The above facts indicate that the defendant Zhao did not have the key to the warehouse, but was able to smoothly enter the warehouse and move valuable and weighing several tons of leather materials by car. There is not only a possibility of theft, but also a possibility that the defendant Zhao, with the consent of Wang, who authorized the processing of leather materials, could have the warehouse lessor He open the warehouse to move the goods and sell them.

3. The lessor, Mr. He, claimed that the defendant, Mr. Zhao, had removed the leather material by impersonating an employee of Company A, and this testimony has no factual basis.

He claimed that because defendant Zhao was also present when Company A moved the leather material into the warehouse from the outside, he mistakenly believed that defendant Zhao was an employee of Company A. Therefore, when defendant Zhao moved the leather material on the day of the incident, He did not obstruct him. The fact is:

(1) In this case, apart from the testimony of the lessor He, there is no evidence to prove that the defendant Zhao impersonated an employee of Company A.

(2) Witness A, the former risk control manager of Company A, He Moumou, confirmed that when Wang commanded the workers to move the involved Pike to the warehouse, He Moumou was present and did not see the defendant Zhao Moumou in the warehouse.

(3) Witness A, the legal manager of Company A, has confirmed that Wang and He were the people who moved the goods into the warehouse at the scene.

(4) The defendant Zhao confessed in court that when Wang brought the defendant Zhao to meet Wang's classmate, Wang did not introduce the defendant Zhao as an employee of Company A. The defendant Zhao himself identified himself as helping to recover the debt and find a buyer for Wang.

The above facts indicate that when Company A moved the goods into He's warehouse, the defendant Zhao was not present at the warehouse site, and afterwards, the defendant Zhao did not impersonate an employee of Company A. He claimed that the defendant Zhao impersonated an employee of Company A to move the goods, and this testimony has no factual basis. Given the private relationship between the lessor He and Wang, as well as the fact that He keeps the keys, there is reason to suspect that He made this false testimony. Firstly, he wants to shirk responsibility for Wang, who has a good relationship; Secondly, I want to break free from the relationship for myself, so I will shift all responsibility onto the defendant Zhao.

In summary, although the defendant Zhao brought the buyer into the warehouse and sold the leather material involved to the buyer, as well as received a payment of 350000 yuan from the buyer, is an objective fact, it cannot be concluded that the defendant Zhao's behavior was the only theft behavior. Although He is the lessor of the warehouse, based on the objective fact that the lessor has set up a duty room and kept keys in the warehouse building, it already has the attribute of a custodian. The defendant Zhao moved out the leather in the presence of He, the lessor and custodian, and there was no secret theft of the leather itself; From the analysis of three situations: A company entrusting defendant Zhao to pursue debts, A company entrusting Wang to continue to follow up on the handling of leather materials after resignation, Wang entrusting defendant Zhao to find buyers, and defendant Zhao how to enter the warehouse without a warehouse key, it cannot be ruled out that the defendant Zhao carried out the act of entering the warehouse and selling leather materials with Wang's consent, It is not ruled out that there is a possibility that the defendant Zhao moved and sold the goods with the consent of the mortgagee of the goods.

2、 To put it a step further, if there is indeed the fact that the defendant Zhao stole the leather materials involved in this case, but the amount of theft cannot be confirmed by the existing evidence, the accusation of theft still cannot be established. Reason:

1. Company A, as the reporting party, did not provide a valid price certificate for the leather materials involved in the case.

2. The "Situation Statement" issued by the investigation agency shows that the investigation agency learned from the staff of the Baiyun District Price Certification Center that due to the lack of physical objects, the price of the leather materials involved in the case cannot be determined. The Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Theft (hereinafter referred to as the "Interpretation"), which came into effect on April 4, 2013, stipulates that the amount of theft shall be determined according to the following methods: (1) If there is a valid price certificate for the stolen property, it shall be recognized based on the valid price certificate; If there is no valid price certificate, or if the amount of theft is clearly unreasonable based on the price certificate, a valuation agency shall be entrusted in accordance with relevant regulations for valuation

According to this regulation, the amount of theft shall be determined based on the valid price certificate of the stolen property, provided that there is a valid price certificate. If there is no such certificate, it shall be determined based on the valuation of the valuation institution.

In this case, the existing evidence reflects that there is no valid price certificate for the leather material involved, nor is there a valuation by a valuation agency, and the amount of the leather material involved cannot be confirmed. So to put it a step further, if the defendant Zhao did indeed steal the leather from the warehouse, but the evidence provided by the public prosecution cannot confirm the amount of stolen property, the accusation of theft cannot be established.

The prosecutor stated that the theft amount in this case should be determined to be 350000 yuan based on the sale price of 350000 yuan, but this opinion cannot be established because:

1. There is no legal basis.

Neither the Criminal Law nor the relevant judicial interpretations on theft stipulate that the amount of theft can be determined based on the price of stolen goods sold. The prosecution stated that the amount of theft in this case should be determined based on the price of stolen goods sold, which clearly has no legal basis. Without explicit provisions of the law, it is not a crime, and this accusation by the prosecutor clearly goes beyond the provisions of the law and cannot be established.

2. From the perspective of the nature of the behavior, theft and the act of selling stolen goods after theft are fundamentally different behaviors. The act of selling stolen goods after theft is an independent act after the completion of theft, and can only be considered as a sentencing circumstance in theft cases.

3. Not in line with the value orientation of objectivism in criminal law. The amount of theft as a constitutive plot should be objective, stable, and unique, otherwise the conviction will become unpredictable and uncertain. Determining the amount of stolen items based on the local market price at the time of theft reflects an objective criminal law value orientation. The amount of stolen goods sold is closely related to a series of uncertain factors such as the level of understanding of the thief and the buyer. The same item can be sold at different prices, and the selling price may be vastly different from the actual value of the item. This reflects the subjectivist value orientation of criminal law. For example, if the perpetrator sells a fake painting worth only 5000 yuan that was stolen, and the buyer mistakenly purchases it at a high price of 50000 yuan using a "famous painting", can the amount of theft be determined at the selling price of 50000 yuan? This is obviously absurd.

4. It cannot truly reflect the social harm of theft crimes. The social harm of theft is measured by the actual losses caused to society and victims by the perpetrator's theft behavior, which is measured by the price of the criminal object at the time and place of theft, rather than the benefits obtained by the perpetrator's theft behavior.

In summary, to put it a step further, if there is indeed the fact that the defendant Zhao stole the leather materials involved in this case, but the amount of theft cannot be confirmed by the existing evidence, the accusation of theft still cannot be established. The prosecution charges the theft amount based on the price of the leather goods sold. Due to the lack of legal basis, the theft and sale of stolen goods are two different types of behavior, and the value that does not conform to the objectivism of criminal law truly reflects the social harm of the theft crime, this accusation cannot be established.

【Case Results】

The court believes that the current evidence is insufficient to prove that the defendant Zhao constitutes theft, and suggests that the prosecutor's office withdraw the case. Finally, on June 11, 2014, the procuratorate applied to the court to withdraw the prosecution on the grounds of "changes in the evidence in this case", and subsequently made a decision not to prosecute. The defendant Zhao was released on June 26 of the same year.

【Summary of Case Handling】

In the early stages of receiving the case, the defense counsel learned through interviews that the defendant Zhao did indeed remove the leather materials from the warehouse and sell them to the buyer, and the sales fee of 350000 yuan was indeed not handed over to Company A. Company A may also be unaware of the sale, and there is a possibility that the defendant Zhao secretly stole other people's property; Until entering the stage of examination and prosecution, after reviewing and researching the case, the defender once again met with the defendant Zhao to verify the situation, and found that the defendant Zhao's identity was somewhat special. At first, he was indeed entrusted by Company A to recover debts from the debtor. Now, the materials involved in the case are the collateral provided by the debtor at that time, and it was further discovered that Wang did also entrust Zhao to look for buyers to see the goods; Meanwhile, with the testimony of the lessor He, it was confirmed that Wang and He had a close relationship. Zhao was present at the scene when he moved the goods to the buyer on the day of the incident, but Wang claimed that He did not notify Wang of the matter. He was unaware of the defendant Zhao's sale of leather materials, and Wang's testimony was not reasonable and there was a possibility of falsehood. In this case, there is a possibility that the defendant Zhao sold the leather materials to the buyer with Wang's consent, There is a possibility of non secret theft, so boldly formulate defense strategies to defend innocence from insufficient evidence; And further from the uncertainty of the amount of theft, the accusation constitutes theft without a foundation, thus laying the foundation for the opinion that there is indeed insufficient evidence and the accusation cannot be established by the public prosecution in this case. The court paid attention to the opinion, and ultimately obtained the result of the prosecutor's withdrawal of the case. Although the court did not directly acquit the defendant Zhao, it was also a victory in the defense of the criminal case.

In handling criminal cases, lawyers should be good at identifying issues from the perspective of evidence, including contradictions between witness testimony, contradictions between witness testimony before and after, the relationship between witnesses, whether witness testimony is logical, whether the defendant and victim are civil disputes or criminal disputes, etc., in order to identify defense points and defend the defendant, Use the evidence provided by the public prosecution to "attack its shield with its spear" and strive for the maximum legitimate rights and interests of the defendant.

 

Author's profile: First level partner of Guangdong Legal Shengbang Law Firm, Master of Law, currently serving as a member of the Criminal Law Professional Committee of Guangdong Lawyers Association, a member of the Criminal Law Professional Committee of Guangzhou Lawyers Association, a member of the Internship Assessment Committee, and a member of the Propaganda Liaison Committee. She was an outstanding female lawyer in Guangzhou from 2009 to 2011.