1, the parties and the defense of the basic situation

Defendant (appellant): Liu Moumou, male, born in 1984, Han nationality, cultural level of high school, labor, on suspicion of theft on September 24, 2009 was criminally detained, on October 27 of the same year was arrested.

Defender: Nan Fang, Guangdong Legal Shengbang Law Firm.

 

2. Suspected offenses

Theft

 

3. Brief case

Defendant Liu moumou in dongguan city town to rent trucks for a living. 2008 June, defendant Liu moumou should relatives Liu moumou's request, driving a truck carrying an unknown man has been eight times to dongguan city, a company to implement the theft. In the process of theft, the unknown man used the warehouse key to open the warehouse door, driving the crane in the warehouse will be the warehouse of cold rolled steel coils lifted to the defendant Liu Moumou's truck compartment, and then by Liu Moumou, the defendant Liu Moumou transported to a scrapyard, and the boss of the scrapyard negotiated the price of the coils to sell to the boss. 2008 June to August, the defendant Liu Moumou and other three successive eight times from the above company to steal Cold rolled steel coils weighing about 40 tons, with a total value of about 218,295.60 yuan, and Liu Moumou was able to obtain remuneration ranging from 60 to 2,000 yuan each time.

At 20:40 on August 13, 2008, Defendant Liu Moumou and three others drove a truck for the eighth time to the above-stolen company, used the above method to move a volume of cold-rolled steel coils onto the truck, and were ready to transport the coils out when the security guards seized them, and Liu Moumou and the others abandoned the truck and fled. After 28 days, the stolen company reported to the police. on September 18, 2009, the public security officers in the provinces will be Liu Moumou arrested, the other two accomplices have not been returned to the case. Liu Moumou returned to the case, took the initiative to return the stolen money 13,000 yuan.

4, the focus of controversy in this case

In the case of the other two co-defendants did not arrive at the case, the captured Liu Moumou is not differentiated between the main and the subordinate sentencing, or according to its position in the whole crime and the actual role played by the main and the subordinate sentencing?

 

5, the first instance public prosecution and defense counsel both sides of the opinion

The public prosecution believes that: the defendant Liu moumou should be held criminally responsible for the crime of theft, do not distinguish between principal and accessory.

Defense lawyers think: the defendant Liu moumou in the whole theft process only play a secondary role, the role is small, should be recognized as an accessory, according to the accessory to light, mitigated punishment.

6, the first trial defense

Defendant Liu Moumou in the whole process of theft only play a secondary role, smaller role, according to law should be recognized as an accessory, and according to law, light, mitigate punishment.

Article 27, paragraph 1 of the criminal law: "in the joint crime plays a secondary role or auxiliary role, is an accessory", paragraph 2 provides: "for the accessory, shall be lighter, mitigated punishment or exemption from punishment".

Article 7 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in Trial of Theft Cases (hereinafter referred to as the "Interpretation") stipulates that: "In the trial of a case of joint theft crime, the defendants shall be dealt with separately in accordance with the specific circumstances of the case: ... (c) For an accessory to a joint crime, the sentence level shall be determined in accordance with the amount of joint theft in which the defendant has participated. (c) For the accessories in the joint crime, the sentencing range shall be determined in accordance with the amount of the joint theft in which they participated, and in accordance with the provisions of paragraph 2 of Article 27 of the Criminal Law, shall be mitigated, alleviated or exempted from punishment".  

In this case, there are three people involved in the theft, Liu Moumou, his relative Liu Mou and another unknown man, the implementation of the theft need to conspire to steal, steal the steel coils, sell the stolen goods, arrange to share the stolen goods and other links to complete, and the actual situation of this case is:

(a), the theft of the time, place and the variety of goods, quantity, how to share the spoils are determined by Liu Moumou's relatives Liu Moumou and another unknown man two, the defendant Liu Moumou did not participate in the conspiracy to steal, on the above matters do not have any decision-making power;

(ii), it is the above unknown man with a key to open the warehouse door to steal the steel coils, and the man will be the steel coils with a crane to the truck;

(iii) It was a relative, Liu, who contacted the owner of the scrapyard where the steel coils were purchased and traded with the owner of the scrapyard, including negotiating the price, collecting the money, and other major matters were done by the relative alone.

(D), the defendant LiuMouMou in the case of unknowing, in the relative LiuMouMou arrangement, passive participation in the theft, and from the beginning to the end is only responsible for driving;

(E), after the success of the incident, the relative LiuMouMou from the share of the benefit fee to LiuMouMou a little benefit fee, each time the sale of stolen money are tens of thousands of yuan, but LiuMouMou each time only share 60, 160, 1000, 2000 yuan ranging from the equivalent of the usual shipping costs.

The above shows: the defendant LiuMouMou in the whole process of theft is not an organization, leader, nor the specific implementation of the process of the decision maker, the main role of the person, he just played the role of a driver, in the whole theft link is only secondary, assisting the role of the role of a smaller role in line with the "criminal law" and the "interpretation of the" on the provisions of the accessory, according to the law shall be deemed to be an accessory, and to be lighter, mitigated punishment.

If because the co-defendant LiuMou and another unknown man did not return to the case, and let only play a secondary role of LiuMouMou bear the criminal responsibility of the principal offender, LiuMouMou according to the principal offender to apply the penalty, this will seriously violate our criminal law the basic principle of the crime and responsibility of crime and punishment fit (the criminal law, article 5: the severity of the penalty, should be connected with the criminal elements of the criminal acts and criminal responsibility), which to LiuMouMou is unfair, will also have a Larger negative social impact, so that the people of the community on the justice of the law, seriousness of doubt, and then affect people's conscientious compliance with the law.

7, the first trial found and judgment

The court held that the defendant Liu Moumou's defense put forward the defendant Liu Moumou is an accessory, the subjective malignancy of the defense, after investigation, the defendant Liu Moumou repeatedly drove into the factory to steal property, the role played by the important, does not conform to the characteristics of accessory, Liu Moumou involved in theft, the amount of particularly large, the subjective malignancy of its larger, so the court on the defense of the defense of the defense of the defense is not adopted. The defense put forward by the other defense (refers to the weight of the theft of steel coil should be 40 tons, the value should be 218295.6 yuan is not the allegation of the theft of steel coil weighs 85.255 tons, valued at 571208.50 million; defendant Liu moumou last theft for reasons other than will did not succeed, is an attempt to commit a crime, should be compared with the attempted offender lighter penalties; Defendant Liu moumou is a first offender, etc.)

Judgment: the defendant Liu moumou guilty of theft, sentenced to imprisonment for eleven years, deprivation of political rights for one year, and a fine of 20000 yuan.

Defendant Liu moumou did not accept this judgment, to the dongguan intermediate people's court of guangdong province filed an appeal.

8, the second trial of the public prosecution and defense lawyers on both sides of the opinion

The public prosecution believes that: the original judgment that Liu Moumou is the main offender is insufficient basis. According to LiuMouMou confession, LiuMouMou in the joint crime just act as a transporter role, play a smaller role, if LiuMouMou's confession is true, it should be found that LiuMouMou is an accessory. Sentencing, the original judgment to theft crime of Liu moumou sentenced to eleven years, based on insufficient. Suggests that the court of second instance to change the sentence after finding out the facts, or revoke the original sentence, remanded for retrial.

The defense believes that: the first trial found that the appellant does not meet the characteristics of accessory, and according to the main offender to be sentenced, the first trial found that the facts are improper, the application of the law is wrong, the sentence is too heavy, according to the law should be changed.

9, the second trial defense

The first trial to "Liu moumou repeatedly drove into the factory to steal and transport property, the role is important" as the appellant Liu moumou in accordance with the main culprits to be sentenced, is to determine the facts are not appropriate, the application of the law is wrong, the sentence is too heavy, according to law should be changed.

Appellant Liu moumou in the whole process of theft only play a secondary role, should be recognized as an accessory, and should be mitigated according to law, reduce the punishment.

As mentioned earlier, the case jointly involved in the theft of three people a Liu Moumou, his relative Liu Mou and another unknown man, three people in the theft process actually involved in the situation is:

(a), in the conspiracy: is a relative LiuMou and another unknown man two people to determine the theft of the time, place and the variety of goods, quantity, how to distribute the stolen money and other important matters, the appellant LiuMouMou did not participate in the conspiracy, on the above matters also do not have any decision-making power;

(ii), in the implementation of the theft: it is the above unknown man with a key to open the warehouse door, and the man will be the steel coils with a crane to the truck, completed the theft of important links;

(c), in the sale of stolen goods: is a relative LiuMou before the theft to contact the acquisition of steel coils of scrap station boss TanMou, after the theft and TanMou transaction, the proceeds of all the money collected by LiuMou.

(D), the appellant LiuMouMou in the relative LiuMouMou arrangement, passive participation in the theft, and from the beginning to the end is only responsible for driving;

(e), the appellant LiuMouMou share very little benefit fee: after the incident, the relative LiuMouMou and another unknown man divided the stolen goods, LiuMouMou from the share of the stolen money to LiuMouMou remuneration.

(b) The proportion of the proceeds from each sale of stolen goods to Liu's share of the facilitation payments:

Tan, the owner of the scrapyard, testified that the situation of the payment for the acquisition of steel coils was:

First time: about 16,500 yuan:

Second time: about 16,500 yuan (about 5 tons, about 3,300 yuan per ton);

Third time: about 18,150 yuan (about 5.5 tons, market price);

Fourth time: about 18,150 yuan (about 5.5 tons, market price);

Fifth: about 16,500 yuan (about 5 tons, market price;)

Sixth: about $25,850 (about 5.5 tons at about $4,700 per ton);

Seventh: about 26,400 yuan (about 5.5 tons at about 4,800 yuan per ton)

Eighth: about $22,500 (about 5 tons at about $4,500-4,800 per ton).

The above eight times totaled about 160,000 yuan.

Liu Moumou confessed that each share of the benefit is: the first 60 yuan, the second 160 yuan, and then each time 1,000 -2,000 yuan, a total of about 13,500 yuan of benefit.

From the total amount of stolen goods and Liu's actual share of the stolen goods, Liu accounted for only 8% (13,500 yuan divided by 160,000 yuan). If Liu played a major role in this case, according to the principle of equal distribution of three people to commit theft, Liu should be at least 33.3%, not 8%. Liu Moumou actual share of the proportion of the benefit fee also precisely reflects the role of Liu Moumou in this case is only a minor role, so can only share a small amount of stolen money, rather than the average distribution, much less more.

The above shows: the appellant LiuMouMou in the whole process of theft is neither the organization, leader, nor the specific implementation of the process of the decision maker, the main role, he only played a driver's role, but also only a very small amount of 8% of the stolen money, in the whole theft link is only a secondary role, in line with the "criminal law" and the "interpretation of the" on the provisions of the accessory, according to the

The law should be recognized as an accessory, and shall be mitigated and reduced punishment.

The first instance judgment actually identified the appellant in this case the role of the driver, but with multiple thefts to find that the appellant in the theft of this case plays an important role, according to the principal offender and sentencing, but ignored whether it is a time or many times, the appellant Liu Moumou in the entire theft process of the driver status and role compared with other accomplices is still secondary to the fact that the first instance of the determination of the fact does not correspond to the objective facts, and found that the Facts are not appropriate, according to the main offender to the appellant more than ten years of sentencing range is the application of law is not appropriate, the sentence is too heavy, according to law should be changed!

10. Findings and judgment of the second instance

The court held that the appellant LiuMouMou and the defense proposed LiuMouMou in the joint crime is an accessory. Upon investigation, the evidence on file confirms that Liu Moumou should be his relative Liu Mou's request to participate in the crime, did not participate in the crime premeditation, in the process of theft is only responsible for the transportation of steel coils;

Witness Tan Moumou also confirmed with its contact sales of stolen goods, responsible for negotiating the price of Liu Mou; and comprehensive consideration of Liu Moumou's profit amount and the total value of stolen property, the price of the stolen goods, should be recognized Liu Moumou in the joint criminal role is small, is an accessory, according to law should be mitigated punishment of Liu Moumou. The relevant findings of the original judgment is improper, be corrected. The second trial public prosecutor, Liu moumou and the defense of the relevant opinions are adopted.

This court believes that the appellant Liu moumou disregard for state law, for the purpose of illegal possession, in conjunction with others repeatedly secretly steal public and private property, the amount is particularly large, his behavior has violated the criminal law of the People's Republic of China, constituting the crime of theft. Appellant Liu moumou in the joint crime plays a smaller role, is an accessory, according to the law should reduce his punishment. The eighth theft due to reasons other than will not succeed, is an attempt, the theft of the law compared to the accomplished offender mitigated punishment.

The trial judgment found that the facts are clear, the evidence is true, sufficient, accurate conviction, trial procedure is lawful, but did not find that the appellant Liu Moumou is an accessory, resulting in Liu Moumou sentencing is too heavy, this court shall be corrected. In accordance with Article 189(1) and (2) of the Criminal Procedure Law of the People's Republic of China, Article 264, Article 27, Article 53 and Article 64 of the Criminal Law of the People's Republic of China, the judgment is as follows:

   (a), to uphold the conviction of the appellant Liu Moumou in the first instance judgment;

   (b), revoke the sentence imposed on appellant Liu Moumou by the judgment of first instance;

   (iii), the appellant Liu Moumou guilty of theft, sentenced to seven years of imprisonment and a fine of RMB 10,000 yuan (the sentence is calculated from the date of execution of the judgment; if the appellant is detained prior to the execution of the judgment, one day of detention will be credited to one day of imprisonment, i.e., from September 18, 2009, to September 17, 2016; the fine is to be paid to the Dongguan City No. 3 People's Court and paid to the state treasury within one month from the date of the entry into force of the judgment) .

   This judgment is final.

11. Case summary

The focus of controversy in this case involves a question, in the joint crime, only one defendant to the case, and confessed to be an accessory to the status of the situation, how to determine the master and the accessory. From the evidence in this case, a total of three people involved in the theft, the final defendant Liu Moumou was arrested, the other two accomplices are at large, then whether to distinguish between the status of master and accessory and how to determine the status of master and accessory of Liu Moumou, this is what we as a defense should think about the problem.

First of all, not because only the defendant LiuMouMou one to the case, not to distinguish between the master and the slave, or according to the defendant in the whole case in the process of the status and the actual role of the distinction, otherwise to the defendant LiuMouMou is unfair, but also a serious violation of China's criminal law the basic principle of criminal responsibility and punishment are appropriate;

Secondly, from the whole case of the evidence material comprehensive analysis of the defendant's participation and the role played by the main offender or accessory, there is no other evidence to corroborate. In this case, the defendant has repeatedly confessed to be very stable that he is only responsible for the transportation of stolen goods, other are not involved, due to the defendant's confession is stable, with a certain degree of authenticity and objectivity; At the same time there are witnesses to confirm the handling of stolen goods prior contact, the scene to talk about the price and receive money are not the defendant Liu Moumou, but with the defendant Liu Moumou's relative Liu Moumou to implement, and also corroborate the defendant's confession of no Participate in other matters of authenticity; again from the defendant's identity, he himself is a truck driver, in this case is only responsible for the transportation is also consistent with its occupational habits; finally from the defendant's share of the stolen goods, the defendant LiuMouMou only accounted for the benefit of 8% of the proceeds of the sale of the stolen goods, from the share of a very small amount of benefit can be seen, the defendant in the whole theft in a secondary position. So according to the evidence, we boldly put forward the defense, although the two accomplices did not arrive, the existing evidence in this case is sufficient to confirm that the defendant LiuMouMou in the case of the role is secondary and auxiliary role, the role of smaller, should be found that the defendant LiuMouMou is an accessory, and in accordance with the accessory to be sentenced.

Our opinion was not adopted in the first trial, but in the second trial, both the prosecution and the court of second instance, both recognize the defense of this view, the court of second instance finally on the first trial verdict to change the sentence, from the first trial verdict of eleven years of imprisonment to mitigate the punishment, sentenced the defendant Liu Moumou seven years of imprisonment, that is, the sentence was reduced by four years.

Although the case after the second trial to get a fair judgment, but the defendant LiuMouMou and his family is very satisfied with the result, the defense to find the right defense point of professional and work seriously dedicated attitude is very recognized. We as a defender, but also for the use of their expertise to maximize the defendant Liu Moumou legal rights and interests feel gratified.