1. Basic information about the parties and the defense

Defendant: Li Moumou, male, born in 1969 in Guangdong Province, Han nationality, middle school education, farmer. He was taken into custody on August 15, 2006, and arrested on September 22, 2006, on suspicion of fraud.

Defense: Nan Fang, Lawyer, Guangdong Law Shengbang Law Firm.

Defender: Cen Minghua, Lawyer of Guangdong Chenggong Law Firm, Guangzhou Branch.

Defendant: Tan Mou, male, born in 1964 in Guangdong Province, Han nationality, elementary school education, farmer. He was taken into custody on August 15, 2006, and arrested on September 22, 2006, on suspicion of fraud.

 

2. Suspected offenses

Fraud

 

3, the brief case

Defendant Lai Moumou qualification but did not obtain the qualification of licensed physicians, the end of 2003, the defendant Tan Mou by zhongshan city people's hospital, zhongshan medical university tumor hospital clinical diagnosis of liver cancer, has not been operated, introduced to find the defendant Lai Moumou medical, the defendant Lai Moumou for its prescription of traditional Chinese medicine to take after a period of time, the defendant Tan Mou in other hospitals for cirrhosis of the liver, ascites. Defendant Tan thought defendant Lai Moumou for its cure for advanced liver cancer around the publicity.

In mid-February 2004, the defendant Tan Mou introduced liver cancer patient victim Tan Mou (note: the two names are the same) to the defendant Lai Mou Mou place, the defendant Lai Mou Mou charge a certain amount of money. After Tan died of liver cancer on March 2 of the same year.

   In March 2006, liver cancer patient TanMouSiong's wife WuMouPing learned that Defendant TanMou had been in Defendant LaiMouMou treatment, find Defendant TanMouMou to verify the situation, Defendant TanMouMou introduced the situation, and lead TanMouSiong to Defendant LaiMouMouMou for medical treatment. Defendant Lai charged a fee. The victim, Tan Mou Siong, later died on April 29 of the same year.

At the end of July 2006, the defendant TanMou learned that Zhuhai SuMou suffering from liver cancer, then to SuMou's family that he himself had suffered from advanced liver cancer was cured by the defendant LaiMouMou, and lead the defendant LaiMouMou and SuMouMou and his family to meet, but also carry its in the hospital examination of the CT disk to SuMouMou see. On August 2 of the same year, the defendant Tan Mou will Su Mou and his relatives to the defendant Lai Mou Mou for medical treatment, the defendant Lai Mou Mou let Su Mou to take its decoction of Chinese medicine 13 doses, charges a total of RMB 106,000 yuan (the amount has been recovered and returned to the victim's family after the detection of the case). After the victim Su died on January 3, 2007 due to liver cancer.

 

4, the public prosecution and defense counsel on both sides of the opinion

The public prosecution believes that: defendant moumou Li's behavior constitutes fraud.

Defendant Li Moumou's defense that: defendant Li Moumou's behavior does not constitute fraud, only the illegal practice of medicine.

 

5, the defense

(A), the public prosecutor accused of the defendant Lai Moumou constitute fraud, insufficient evidence, according to the law should be made insufficient evidence. Accusations can not be established verdict of acquittal.

Legal provisions: article 266 of the criminal law provides: "fraudulent public or private property, the larger amount, shall be sentenced to less than three years of fixed-term imprisonment, detention or control, and or a single fine; the amount is huge or there are other serious circumstances, shall be sentenced to more than three years than ten years of fixed-term imprisonment, and shall be punished with a fine; the amount is particularly huge or there are other particularly serious circumstances, shall be sentenced to more than ten years of fixed-term imprisonment or life imprisonment, and shall be punished with a fine. fixed-term imprisonment or life imprisonment, and a fine or confiscation of property."

According to the law, the perpetrator must subjectively have the subjective intent to defraud and objectively have the objective act of defrauding in order to constitute the crime of fraud. Defendant Lai Moumou does not meet the subjective and objective elements of the crime of fraud, and does not constitute the crime of fraud. Specific performance:

1, the defendant Lai Moumou did not have the subjective intent to defraud.

(1), the defendant Lai moumou family of traditional Chinese medicine, have the treatment of liver disease knowledge and experience in traditional Chinese medicine, and in November 7, 2000 to obtain the "Chinese medicine doctor qualification", is not a do not know traditional Chinese medicine and pretend to be a traditional Chinese medicine practitioner for the victims of the Su Mou and other people to cure the charlatan, precisely a use of their own learning, at the request of the patients and family members of the patients of the folk traditional Chinese medicine, there is no in the name of the practice of medicine, defrauding of money and goods. Subjective purpose.

(2), the defendant Lai Moumou noble medical ethics, deeply loved by the patients and their families, the defendant Tan Mou, witnesses Huang Mouming and other people have to send banners to the defendant Lai Moumou, in order to show their gratitude.

(3), due to the defendant Lai Moumou reputation is very good, many patients to seek treatment.  

The defendant in this case, Tan Moumou is through the patient Chen Mouyuan's referral to seek treatment;

Witness Huang Mouliang, Huang Mouhai's brother Huang Mouquan are to find Lai Moumou treatment, the results of Lai Moumou not only cured Huang Mouliang and Huang Mouquan jaundice hepatitis, but also to help Huang Mouquan with traditional Chinese medicine successfully detoxification, the story was published in June 7, 2000, "Enping Newspaper," the third page;

The above facts have "Enping Newspaper"; Tan Mou, Huang Mouming, Zhu Mouzhang, Huang Mouxin, Li Mou, Feng Moupin, Liu Mouchao, District Mou'an, Chen Mouyuan and other nine people presented nine banners; defense witnesses Huang Mouming, Huang Mouhai and Huang Mouliang made three "investigation transcript>; Lai Moumou qualification of traditional Chinese medicine doctor's qualification and Siping City Personnel Bureau issued the "certificate" and a large amount of evidence to prove.

Fully explains, the defendant Lai Moumou did not defraud the victim's subjective intent.

 

2. Defendant Li Moumou did not act objectively to defraud.

(1) Defendant Li Moumou did not make a promise that he would cure Tan Moujia, Tan Mouxiong and Su Mou of liver cancer.

First, from the content of the recording material:

The witness provided by the public prosecution ChenMouTuan is the victim SuMouMou son SuMouMou's friend, had a conversation with LaiMouMou and TanMouMou, and the content of the conversation was recorded, the main content of the recording reflects the following:

Chen: I am considered Zhuhai people, I heard that you can heal the terminal disease, to friends to find him (Tan Mou), now I do not know how the situation, I have this friend of the money, willing to pay, I introduced to the medical, medical is not good I do not know, the introduction fee and so on there is no...

Lai: The introduction fee is not much, a few thousand dollars.

...

Chen (Chen Moumou): 60,000 yuan a time, how many days to serve?

Lai (Lai Moumou): It is difficult to say, the absorption of fast, faster good, slow absorption, slower good.

Chen: Is it true that he (Tan Mou) said 6 days have effect?

Lai: I can say so, 5 days have effect.

...

CHEN: How long does it take to cure advanced liver cancer?

Lai: This is difficult to say, more than 10 days, more than 20 days, depending on the effect of the medicine, the absorption of good will be faster, the absorption of bad will be slower.

Chen: What is the possibility of healing?

Lai: How to say it, I have not seen anyone.

Chen: 10 days to 600,000 yuan, whether it must be good?

Lai: you listen to me, do not say this doctor, different from your package mouth (package is the oral language, meaning that does not guarantee a good cure), do not say that sure line, you believe I come to the doctor.

Chen: Oh ... I go back to speak with him, if you are willing to pay so much money to find you again.

Lai: I tell you listen, I do not dare to do the doctor with your bag mouth, and do not say that it is not good, you believe that I will come to the doctor...

The content of the above recordings reflect: Chen Mou Tuan in a clear indication that he is only a referral (concerned about how much the introduction fee), his friend with liver cancer has money, repeatedly asked the defendant Lai Moumou is not certain to be sure to ho good liver cancer patients, the defendant Lai Moumou said that he is a doctor's consistent practice is not guarantee that the cure, Chen Mou Tuan or the patient believes that he came to find him medical treatment, and made it clear that he could only pay Chen Moumou group referral fee of a few thousand dollars.

Explanation: the defendant Lai Moumou is not a treatment of liver cancer and other diseases for others to carry out fraud, otherwise, Lai Moumou can brag about their own sure cure for liver cancer, can promise more to Chen Mouguan referral fee, in order to solicit Chen Mouguan called friends to liver cancer, in order to defraud the Chen Mouguan friends of the medical expenses.

Second, from the content of the statement signed by Su's family:

The statement reads: "Su ... is intestinal cancer metastasized to liver cancer, now come to Dr. Li's home to seek medical treatment, diagnosed by Dr. Li, that the chances of liver cancer can be cured are very few, "it is difficult to be cured", but the patient's family is determined to Dr. Li's medication, Dr. Li once again declared that: in the period of medical treatment, the patient, if the patient appeared ... death has nothing to do with Dr. Li ... ... death and Dr. Li has nothing to do .... Signature: Su Mouhao, Ye Mouyu, Su Mouyou, Su Mouhuan.

The statement has shown, defendant Lai Moumou has clearly informed Su's family, diagnosed by Lai Moumou Su's disease is very difficult to cure, fully reflecting the defendant Lai Moumou did not to Su and his family promise to Su's liver cancer, is in Su's family repeatedly requested, Lai Moumou is willing to give it a try.

Third, from the defendant Tan Moumou and other patients signed the statement content:

Defendant Lai Moumou confessed in court, in every liver cancer patients before treatment, will sign a statement with the patient, family members and other agreements, including the defendant Tan Mou and the victim Tan Moujia, Tan Mou Siong and Su Mou, the content and Su Mou's family signed a statement of roughly the same. Description: the defendant Lai Moumou consistent practice is not to liver cancer patients and their families promise to cure the patient's liver cancer, clearly inform the cure rate is very low, if the patient and his family must try, Lai Moumou willing to try to cure.

Defendant Tan Mou also confessed in court, defendant Li Moumou in the treatment of defendant Tan Mou, and did not promise to cure Tan Mou's liver cancer, but also said, if you believe in medical treatment.

Defendant LiMouMou of the practice also with its in the recording of the above conversation content coincides, show, recording content, several statement, defendant LiMouMou, TanMou confession has formed a complete chain of evidence, together confirm: defendant LiMouMou face to come to seek medical treatment of liver cancer patients and family, did not make a guarantee that his medicine can cure the patient's liver cancer and other promises, does not exist to the means to the fact of fraud.

Fourth, although the public prosecution authorities to provide victims and family members of the testimony to prove that the defendant Lai Moumou had said that his medicine can cure the disease, but these witnesses are interested parties, the authenticity of the testimony can not be determined; and the testimony are unilateral statement in the aftermath of the questioning, and can not truly reflect the objective facts at that time, compared to the audio recording of the two sides in the conversation of the content of the true reproduction as well as as as a book of evidence Compared with the true reproduction of the conversation between the two parties in the audio recording and the statement signed by Mr. Su and his family and other statements as documentary evidence, the content of the audio recording and the content of the statement can more truly reflect the situation at that time, and has a higher degree of credibility.

The personal subjectivity and untruthfulness of the testimony can be fully reflected in the fact that the witness Chen Wentuan distorted the meaning of what Mr. Li said:

ChenMouTuan accept the public security organs questioning reflect: "that surnamed Lai god doctor say his medicine how sharp, as long as five days can cure the disease and so on words". Recorded information reflected the fact that: Li Moumou did not say that he is a miracle doctor, not to mention that as long as five days will be able to cure liver cancer, Li Moumou said five days of efficacy refers to the five days will have an effect, but there is an effect with a complete cure that is definitely a two concepts. Chen mou group unauthorized distortion of the facts, subjectively what exactly is the purpose we are not clear, but also a true indication of witnesses for various reasons and purposes, its testimony with a certain degree of favoritism, Chen mou group is only Su mou mou's friends and so on, not to mention as the families of the three victims it.

(2) Regarding the prosecutor's argument that Tan's suffering from liver cancer was only a clinical diagnosis, not a pathological diagnosis, and that the subsequent examination results were only cirrhosis of the liver and ascites, from which it was concluded that Tan had not suffered from liver cancer, and the further allegation that Tan and Lai were jointly deceptive in claiming that they had cured Tan's liver cancer to the patients who had come to seek medical treatment, the prosecutor's allegation could not be substantiated. Rationale:

 

First, from the point of view of what the defendant Tan himself and his relatives knew:

A, the defendant Tan in the first interrogation confessed: "I checked out in Zhongshan City People's Hospital suffers from liver cancer, and then transferred to the Guangzhou Cancer Hospital for treatment and examination, but also confirmed that I suffer from advanced liver cancer, the doctor said that has been unable to treat, I live in the third industrial area through a male youth surnamed Chen introduced to the city of Siping to find Lai Moumou to help me medical treatment, and the results of the Lai Moumou As a result, Moumou Le cured my liver cancer and it has not recurred since".

After the 2nd, 8th, 10th interrogation, the defendant Tan also clearly indicated that he knew he had liver cancer.

Trial, the defendant Tan Mou confessed, hospitalized during his elder brother Tan Mouhong take care of their own, the doctor to talk to his elder brother, his elder brother told Tan Mou suffered from liver cancer, Tan Mou only believe in his elder brother; also confessed that at that time from the Guangzhou Cancer Hospital discharged from the hospital in a very serious condition, was assisted by family members to go to find Lai Moumou treatment.

B, his wife Lu Moujiao confirmed, Tan in November 2003 in Zhongshan City People's Hospital hospitalized in the results of the examination is cirrhosis of the liver, liver cancer advanced stage, is the doctor told her; in the affiliated tumor hospital of CUHK.... At the time of the examination, Tan's elder brother and his nephew Tan Mou B accompanied him, his elder brother told him it was advanced liver cancer.

C. His nephew, Tan Mouyi, also corroborated Lu Moujiao's account of the above when he was questioned.

Second, from Defendant Lai's diagnosis of Defendant Tan:

When Defendant Tan came to the door to seek treatment, Defendant Lai Moumou, after diagnosis, determined that Defendant Tan was suffering from liver cancer, cirrhosis and ascites. Afterwards, Defendant Tan received treatment from Moumou Li for about a month, and Tan was able to walk freely from the time he was assisted to the door to the time he continued to do engineering business, and the whole effect was very good.

Third, after being diagnosed with liver cancer by Zhongshan City Hospital and the Affiliated Cancer Hospital of Sun Yat-sen Medical University, Defendant Tan did not receive treatment for his liver cancer from any other person or hospital, except for treatment by Moumou Li.

Explanation: Although defendant Tan Mou has not been diagnosed with liver cancer by the hospital's surgical pathology slides, both Zhongshan People's Hospital and the Affiliated Cancer Hospital of Zhongshan Medical University clinically diagnosed Tan Mou as suffering from liver cancer, and both hospitals required Tan Mou to undergo surgical treatments, which convinced Tan Mou that he was suffering from liver cancer, and Tan Mou's wife and nephews all confirmed this fact. Then, TanMou know that he suffers from liver cancer, only to find LiMouMou a person treatment did not go to other hospitals surgical treatment, from the need for assistance to the later body recovery, for the effect of treatment, TanMou is personally feel, TanMou have every reason to believe that is LiMouMou cured his liver cancer, this case out of gratitude and thanksgiving in the village around the publicity, and will tell this situation to come to the consultation of the patient, from subjective From the subjective point of view, completely from the heart.

For Defendant Li Moumou, after diagnosing Tan Mou with liver cancer and treating Tan Mou for about a month, and seeing Tan Mou from being assisted to the elimination of symptoms to Tan Mou began to work, a series of changes that Li Moumou had every reason to believe that Defendant Tan Mou's liver cancer was cured by his own medicine, and supported by such a judgment, Li Moumou said to the patients who came to the clinic afterward that he had cured Defendant Tan Mou's liver cancer. Defendant Tan's liver cancer, completely truthful, no fictitious facts, not to mention there is no intention to conceal the fact that Tan did not suffer from liver cancer.

Therefore, in this case, whether Tan was diagnosed as suffering from liver cancer without being confirmed by the hospital's surgical pathology slides is not the key to this case; one of the key issues is whether Tan was subjectively convinced that he suffered from liver cancer, and whether he thought that it was Lai who cured his liver cancer; the second key issue is whether Lai diagnosed Tan as suffering from liver cancer at that time, and whether Lai himself confirmed that Tan's liver cancer was cured by his own traditional Chinese medicines, and the third key issue. Whether Tan only sought treatment for liver cancer from Mr. Lai. If the answer is in the affirmative, then Tan Mou and Li Moumou in convinced that Tan Mou's liver cancer is Li Moumou cured the case to inform the patients and family members who came to the clinic there is no deception of the fact, not to mention there is no intention to conceal the fact that Tan Mou did not suffer from liver cancer. As previously mentioned, the defendant Tan Mou and Li Moumou are convinced that Tan Mou suffers from liver cancer, both believe that is cured by Li Moumou, in this case, they told the victim Tan Moujia, Tan Mouxiong and Su Mou and their families that Li Moumou cured Tan Mou's liver cancer subjective completely without the consciousness of deception, is a representation of the objective facts. Thus, the defendant Tan's liver cancer without surgical pathology slides diagnosis to accuse the defendant LiMouMou and TanMou together to deceive the victim can not be established.

In addition: the defendant Tan in December 7, 2003 to accept Lai Moumou's treatment, December 26, 2003, Yangjiang City, combined traditional Chinese and Western medicine hospital CT, clinical diagnosis of cirrhosis, ascites, March 3, 2004, Zhuhai people's hospital SCT examination, clinical diagnosis of mild fatty liver, cirrhosis, November 7, 2006, the southern medical university affiliated zhongshan boai hospital CT On November 7, 2006, the CT examination and clinical diagnosis of the left lobe of the liver was slightly smaller and the square lobe was slightly larger. The three hospitals of the defendant Tan made the above diagnosis of the same are clinical diagnosis, the same is not the final diagnosis of the surgical pathology slides.

The public prosecutor to clinical diagnosis results to determine Tan only have cirrhosis of the liver, ascites is equal to recognize the clinical diagnosis of the scientific accuracy, but at the same time, the public prosecutor also think that Tan only based on the hospital's clinical diagnosis that he had liver cancer is deceived the victim and family, is equal to deny the scientific accuracy of clinical diagnosis. From this, it can be seen that the public prosecutor for the clinical diagnosis of whether the scientific nature and accuracy is to adopt the principle of my use, that is, there is no final surgical diagnosis of cirrhosis, ascites results of the allegations of favorable to be admissible, there is no surgical diagnosis of the results of the liver cancer to deny the allegations of unfavorable to be on the basis of this self-contradictory derived from the fact that Lai Moumou and Tan fictional Tan suffered from liver cancer, and to make the Lai Moumou and Tan constitutes a The charge of fraud is clearly untenable.

(3) the defendant LiMouMou want the victim to sign the statement behavior is not enticement behavior.

Each liver cancer patients can be treated through traditional Chinese medicine, this itself is not sure things, LiMouMou have unique experience in the treatment of liver cancer, and had cured the defendant TanMou, but because each patient is sick with different specific conditions and degree, different physical quality, absorption of drugs, whether to comply with different after taking medicine, etc., resulting in different therapeutic effect, LiMouMou can not guarantee that will be able to come to the consultation of each liver cancer patients are cured, can only try to use their own ability to try to save the patient's life. It is impossible for Moumou Li to guarantee that he can cure every liver cancer patient, but he can only try his best to save the patient's life as much as possible. Thus, Moumou Li in the treatment of liver cancer patients at the same time in order to protect themselves and their families from being harmed, clearly inform the patients and their families if they are willing to treatment must sign a statement, so as to avoid family members of their own personal safety and family members are unfavorable.

At the same time, LiMouMou is not specifically for SuMou, TanMouSiong and TanMouJia, is also the same for the defendant TanMou, as long as is to come to seek medical treatment of liver cancer patients, all have to sign a statement, if it is to be patients to sign a statement is a kind of enticement, then the defendant LiMouMou is not also enticement of the co-defendant TanMou. This is obviously self-contradictory.

To liver cancer patients and their families to sign a statement, this is a kind of self-protection, prevent disputes in the way of handling, just as the hospital to do surgery before the patient, the patient's family members must sign a surgical consent form of the same nature, if it is said that this is a kind of enticement, that is not every hospital every day to entice the patient to do surgery, is not a surgical failure to pursue the hospital's responsibility for the fraud, if such a theory can be tenable, then who also dare to run a hospital? Then who would dare to run a hospital. Therefore, the public prosecutor to accuse the defendant Li Moumou behavior is enticement is obviously ridiculous.

(4) As to whether the Chinese medicine given to liver cancer patients Tan, Tan Mou Siong and Su Mou was an ordinary Chinese medicinal liquid:

Li Moumou used the prescription to cure Defendant Tan's liver cancer, which in itself has proved that the medicine prepared by Li Moumou was not an ordinary medicine solution, but a medicine that is effective and can play a therapeutic role in the treatment of liver cancer.

This case did not make any identification of the potion that Moumou Li gave to the three victims for treatment, and based on the name of the traditional Chinese medicine on the prescription to determine that it is an ordinary medicinal liquid is not objectively based on this to determine that Moumou Li has a deceptive behavior can not be established.

Above a large amount of evidence and facts prove that the defendant Li Moumou did not implement fraudulent behavior of the victims, the public prosecution in the accusation of Li Moumou implemented fraudulent behavior contradictory, insufficient evidence, can not be established.

(b) The allegation that the defendants, Mr. Lai and Mr. Tan, jointly committed fraud has no factual basis and the allegation cannot be substantiated. Reason:

1, the public prosecution did not submit any evidence to prove that Lai Moumou and Tan Mou once discussed how to defraud, how to divide the work, how to share the spoils afterwards, that is, there is no evidence to prove that Lai Moumou and Tan Mou have the subjective intent to jointly defraud.

2, defendant Tan confessed in court, he introduced SuMou to LaiMouMou place for medical treatment, his subjective is in order to cure SuMou in the future, SuMouMou's son SuMouHuan can share the project to TanMou do. Explain, in the course of treatment, TanMou and LaiMouMou did not joint fraud SuMou's subjective intent.

3, the three victims in looking for defendant Lai Moumou medical treatment before all looking for the defendant Tan Mou to understand the situation, and then by the defendant Tan Mou himself or his brother brought directly to Lai Moumou treatment, the defendant Tan Mou did not notify Lai Moumou beforehand. The practice also reflects the two do not have the subjective intent to jointly defraud and for the common fraud and the implementation of collusion.

4. On the introduction fee:

The Public Prosecution's allegation that Lai divided the introduction fee to Tan twice, once for the second order (Tan's siong) of 5,000 yuan and once for the third order (Su's) of 10,000 yuan, is not true.

The facts are:

(l), the second single, the defendant Lai Moumou only charged Tan Mou Siong is 2,000 yuan, did not charge other treatment fees, the 5,000 yuan because Lai Moumou use Tan Mou's car, will be damaged to the car to Tan Mou's compensation fee. The fact that Tan Mou made a clear confession in court, Lai Moumou also should be certified.

(2), the third single, the defendant TanMou to LiMouMou borrowed 40,000 yuan for engineering use, after TanMou's wife LuMouJiao returned 10,000, there is still l million yuan not yet, by LuMouJiao wrote a note to LiMouMou's wife, LiangMouAi. The fact by Tan Mou, Lai Moumou's statement, the loan note to be confirmed.

(3), the witness HuangMouMing confirmed, HuangMouMing had introduced HuangMouLiang and HuangMouQuan to LiMouMou, LiMouMou has never given the introduction fee, also have not heard of LiMouMou gave other referral referral fee thing. Explain, defendant LiMouMou for the introduction of people did not pay the introduction fee practice. Also indirectly proves that defendant moumou Li paid the above 5000 yuan and 10,000 yuan is not the introduction fee.

The above shows that the defendant LiMouMou did not pay the introduction fee to TanMou, the public prosecutor accuses LiMouMou to TanMou benefit fee is not proved by evidence, is not an objective fact.

Take a step back, even if Li Moumou gave Tan Mou introduction fee, is not equal to the two are common fraud. In the civil affairs, in order to thank others intermediary introduced to pay the introduction fee is a very common thing, that is, in order to thank the introducer, but also hope to introduce more business. The public prosecution will pay the act of introduction fee is equivalent to the existence of common fraud between the two sides, obviously is very far-fetched. If LiMouMou and TanMou really exist common fraud, in the case of LiMouMou received one million, TanMou and how can only share to one percent on the rest, after all, without TanMou's introduction, three victims will not find LiMouMou medical treatment, LiMouMou can not receive the fee, on the role of the role of TanMou's introduction is to play a larger role, never one percent of the role of the role of TanMou. From this, also proves that there is no common fraud between LiMouMou and TanMou, also should prove TanMou confession is because LiMouMou cured his disease, so will bring the victims to LiMouMou treatment purpose.

(c) On the characterization of the case: the defendant Lai Moumou's conduct should be characterized as the illegal practice of medicine, not fraud.

Defendant Lai Moumou in the case of not having a doctor's qualifications, to seek medical treatment of the victims Tan Moujia, Tan Mou Siong and Su Mou diagnosis and treatment, charging treatment fees, preparation of traditional Chinese medicine, informed of the treatment period need to pay attention to the relevant matters, etc., is a typical folk Chinese medicine practice, the behavior should be dealt with as the illegal practice of medicine, can not be Lai Moumou charge too much on the simple to determine that it defrauded the patients and their families. Family money.

7. Court Findings and Judgment Results

The court held that the defendant Li Moumou is a certain knowledge of traditional Chinese medicine, Chinese medicine practitioners, the use of folk so-called partial prescription, secret recipe for the treatment of liver cancer, the use of the patient's eagerness to cure the patient's mentality to the patient to charge a high amount of medical fees, the victim was holding a trial psychological state of medical treatment, and voluntarily delivered a high amount of medical fees and fraud requires the perpetrator does not know the art of medical treatment, purely for the purpose of defrauding property, the use of fraud, the use of fictitious facts to conceal the truth of the facts of the method to make the victim into a false understanding so as to "voluntarily" hand over the property characteristics are not fully consistent. Fictitious concealment of the truth of the facts of the method, so that the victim is trapped in the wrong understanding of the characteristics of the "voluntary" surrender of property is not fully consistent. And the defendant LiMouMou does not have the qualification to practice medicine, in zhongshan city illegally carry out medical activities and charge the patient's family high medical fee, the situation is serious, his behavior is more in line with the characteristics of the crime of illegal practice of medicine, should be the crime of illegal practice of medicine, the defendant LiMouMou convicted and punished. Defendant TanMou in knowing that defendant LiMouMou not qualified to practice medicine, for defendant LiMouMou introduce patients, and from defendant LiMouMou to get part of the medical proceeds. Defendant Tan's behavior provided assistance to Defendant Li Moumou's illegal practice of medicine, his behavior has constituted illegal practice of medicine complicity.

The court held that the facts of the crime charged by the public prosecution authorities against the two defendants were clear, but there was an error in the determination of the crime, which was corrected by the court.

Judgment: First, the defendant Lai Moumou guilty of illegal practice of medicine, sentenced to two years and six months imprisonment, and a fine of RMB 20,000 yuan. Second, the defendant Tan Moumou committed the crime of illegal practice of medicine, sentenced to one year and six months of imprisonment, and a fine of five thousand yuan.

After the verdict, neither of the two defendants appealed, and the public prosecution did not protest the verdict, which has come into effect.

 

8, case summary

As a defender, just intervened in this case, also to the defendant Lai Moumou to the terminal liver cancer patients charged such a high medical fees surprised, there is suspected of fraud may be. In the first trial session we made the defense does not constitute fraud, from the facts of the case we made a lot of investigation and understanding: (a), after understanding, the original defendant Lai Moumou's father is also a folk traditional Chinese medicine, under the influence of his father, the defendant Lai Moumou really know some knowledge of traditional Chinese medicine, but also obtained the qualification of traditional Chinese medicine doctor, in the treatment of liver disease has some experience, the local newspaper on this matter also made positive Report, that defendant Lai Moumou is not a lied to cure the charlatan, but a folk Chinese medicine; (2), things are due to the defendant Tan Mou's liver cancer by the defendant Lai Moumou treatment has good results, and triggered the defendant Tan Mou for the defendant Lai Moumou around the publicity, and for the defendant Lai Moumou introduced a few other patients with advanced stage of liver cancer, and the last patient's family members are also the family members of the victim Su Mou reported the fraud, so we felt it was necessary to find out whether Defendant Tan had advanced liver cancer. According to our investigation, we learned that the defendant Tan Mou in Zhongshan City People's Hospital, Affiliated Cancer Hospital of Zhongshan Medical University hospitalized, doctors clinically diagnosed advanced liver cancer, and ready for him to operate, the defendant Tan Mou dare not operate before finding the defendant Lai Moumou to see a doctor. After that, defendant tan did not find any hospital or individual treatment, after defendant lai moumou treatment, defendant tan went to other hospitals, found only cirrhosis of the liver and ascites, so that defendant lai moumou cured his liver cancer, and then publicized around. From this, defendant LaiMouMou and TanMou to other people to introduce defendant LaiMouMou have treatment of advanced liver cancer experience is not fictitious facts; (3), in the investigation we also found that defendant LaiMouMou each time to treat patients with liver cancer before the patient, family members have to sign a statement, the content of the liver cancer can be cured is very little, the patient's family must defendant LaiMouMou under the drug treatment, treatment, if there is a death during the treatment With the defendant Lai Moumou has nothing to do and so on. Including the defendant TanMou and defendant LaiMou signed such a statement, that defendant LaiMou did not guarantee to the patient and the family must be able to cure the patient's liver cancer, is in the patient and the family hold willing to try under the mentality of charging the medical fee for the treatment, not the patient and the family was defendant LaiMou and TanMou cajoled to be able to cure under the circumstances of the payment of the medical fee.

Understand the process of these circumstances, we have collected a large amount of evidence, including the defendant Lai Moumou "Chinese medicine qualification", the local personnel bureau issued the "certificate", the patient sent a number of silk flags, the local published the defendant Lai Moumou treatment of the "Enping Newspaper" and a few were treated by witnesses to investigate the investigation of the patient, the formation of a written investigation, and apply for these witnesses to testify in court, and to the public prosecution authorities to provide The content of the recording information to be used in our favor, and ultimately in the court boldly for the defendant Lai Moumou did not constitute fraud, the prosecution accused of the crime is not established defense.

The final result, the court also held that the defendant Lai Moumou does not constitute fraud, but the defendant Lai Moumou and Tan Moumou convicted and punished for the crime of illegal practice of medicine. If the crime of fraud is established, the defendant LiMouMou according to the suspected fraud amount of more than 1 million yuan, at least to be sentenced to more than 10 years of imprisonment, now that the crime of illegal practice of medicine, only the defendant LiMouMou sentenced to 2 years and 6 months of punishment, can be seen due to the defense was adopted, the defendant LiMouMou's sentencing is 7 years and 6 months lighter, and do our best to protect the defendant's legitimate rights and interests of the defendant LiMouMou.

This is a felony to misdemeanor defense of a typical case, today it will be presented, mainly because I hope to be able to have a certain inspiration, as a defender involved in the case to be willing to spend a lot of time and energy to study the case itself, the alleged crime with or without sufficient evidence to support the evidence provided by the prosecution and the evidence provided by the defendant and the part of the investigation of which we should be what evidence, and a full understanding of the law on the suspected crime of Provisions and crimes and misdemeanors, this crime and the boundaries of the crime, from which to find a breakthrough in the defense, and ultimately do a good job of pre-trial preparation for the trial of the strong defense to lay a good foundation, and do our best to safeguard the legitimate rights and interests of the parties, so as to be worthy of the parties to the criminal defense lawyer's trust and respect.