? Pan Zhili's appeal case of accepting bribes and abusing his power was tried by the Intermediate People's Court of Anshun City, Guizhou Province in the first instance. The defendant Pan Zhili refused to accept the judgment of the first instance and appealed. In the defense opinions of the second instance, the defender also made a well-founded explanation to the collegial panel of the second instance on procedural issues.
? Recently, I received a second-instance ruling from the Guizhou Provincial High Court, and the response of the ruling to procedural issues was bright! Bright violates the facts, bright violates the law, and bright bends the law.
? According to the procedural issues mentioned in the defense opinion, the corresponding comments and reasoning in the ruling are compared as follows for your judgment.
Original defense opinion:
? If there are four major violations in the procedure of first instance in this case, the original judgment shall be revoked and sent back to the people's court that originally tried the case for retrial. The factual and legal basis is as follows:
? First, the composition of the judicial organization is illegal.
? According to Pan Zhili's charges and circumstances, this case is "a case that may be sentenced to more than ten years in prison". Searching the Internet, since the appellant Pan Zhili was removed from the post of Dushan County Party Secretary, there have been many news reports about Pan Zhili on the online media, which belong to "criminal cases with great social influence". According to Item (1) of Article 16 of the People's Jury Law, the people's court decided ex officio that a collegiate panel consisting of seven people's jurors and judges would try the case. However, the collegial panel in this case consists of only three judges.
? According to the network, this case is also a case of "widespread concern of the people". According to the second paragraph of Article 15 of the People's Jury Law, even if a collegial panel of seven people is not formed, people's jurors should participate in the trial. Therefore, the composition of the trial organization of first instance in this case violates the provisions of the second paragraph of Article 15 and the first paragraph of Article 16 of the People's Jury Law, and constitutes the case that the trial organization stipulated in the fourth paragraph of Article 238 of the Criminal Procedure Law is illegal.
Original ruling:
? Regarding the defense opinion put forward by the appellant Pan Zhili's defender that "the trial should be conducted by a collegiate panel of seven judges in the first instance", after investigation, it is determined by the court of first instance according to the facts of the case and the relevant laws and regulations whether the case is considered as a major case or whether to form a collegiate panel of seven judges, and it is not improper for the court of first instance to decide to form a collegiate panel of three judges. Therefore, this defense opinion cannot be established and will not be adopted by our court.
Where the law is misinterpreted:
? "Criminal cases with great social impact" and "major cases" are two different concepts. "Major cases" refer to cases that may be sentenced to life imprisonment or more, while "criminal cases with great social influence" emphasize social influence and have nothing to do with punishment. The ruling deliberately shifted the focus.
? To take a step back, even if the focus is on "major cases", in the second trial stage, it should be judged by your collegiate panel of second instance, and then the defense opinions should be disposed of, instead of "the court of first instance should make a judgment according to the case and relevant laws and regulations".
? Whether this case belongs to a "criminal case with great social influence" shall be judged by the collegial panel of second instance; if not, the defense opinion will be "rejected"; If so, then revoke the original judgment and send it back for retrial.
Original defense opinion:
? Two, deprivation and restriction of the legitimate litigation rights of the parties.
? (a) depriving the parties of their legal litigation rights.
? Whether the people's jurors participate in the trial organization of first instance in this case, according to the Supreme Law "on the application of
Original ruling:
? Where is the original ruling? Dear collegiate bench of Guizhou Provincial High Court! It was clearly presented to you in black and white, and this statement should also explain this to you, and you also made a record. Why didn't your ruling say "depriving the parties of their legal litigation rights"? !
Where the law is misinterpreted:
? The collegial panel deliberately covered up the facts and said nothing!
Original defense opinion:
? (2) Restrict the legal litigation rights of the parties.
? Article 198 of the Criminal Procedure Law stipulates that the defendant has the right to make a final statement after the presiding judge announces the end of the debate.
? ? The transcript of the trial shows that the public prosecutor repeatedly interrupted the final statement, saying that "the presiding judge and the public prosecutor have the responsibility of legal supervision."
? According to Article 580 of the Criminal Procedure Rules of the People's Procuratorate (20 12 Edition), the prosecutor in court shall put forward "rectification opinions on trial activities" after the trial. The latest version of the Criminal Procedure Rules of the People's Procuratorate (20 19) also has the same provision in Article 572.
? Defenders believe that the defendant's right of final statement is the most basic and important right of the defendant in criminal proceedings. The defendant's final statement is not a court debate, and the prosecutor has no right to interrupt. Faced with such an influential case, Pan Zhili was repeatedly interrupted by the public prosecutor on the grounds of legal supervision when making his final statement. The presiding judge not only failed to stop it in time, but also asked the defendant's final statement to be "as brief as possible". The behavior of the presiding judge constitutes a situation of "restricting the legitimate litigation rights of the parties" as stipulated in the third paragraph of Article 238 of the Criminal Procedure Law, and "may affect a fair trial".
Original ruling:
? Regarding the defense opinion put forward by the appellant Pan Zhili's defender that "the judge and prosecutor interrupted Pan Zhili's final statement and deprived Pan Zhili of his right to make a final statement", after investigation, Pan Zhili stated issues irrelevant to the case in his final statement, which was stopped by the presiding judge, which was in line with the law. Therefore, this defense opinion cannot be established and will not be adopted by our court.
Where the law is misinterpreted:
? Regarding the question of interrupting the defendant's final statement, the defense opinion is only directed at the prosecutor. The collegial panel deliberately confused the "judge" and began to reason. The defender never raised any objection to the judge interrupting the statement. Is the collegial panel's evaluation targeted?
? The presiding judge shortened the time for the defendant's final statement, and the collegial panel ignored it.
? Defenders are also pleased to note that the Guizhou Provincial High Court has a precedent of "restricting the litigation rights of the parties". Please look at the screenshot below:
? What the defender can't figure out is that the Guizhou Provincial High Court was able to revoke the original judgment and send it back for retrial when it found that the first trial "restricted the legitimate litigation rights of the parties". This case is not only "restricted", but also "deprived" of the legal litigation rights of the parties. Why can't the Guizhou Provincial High Court send it back for retrial?
Original defense opinion:
? Three, in violation of the mandatory provisions of the procedural law, the presiding judge did not fully perform his duties according to law.
? According to the trial transcript of the first instance (litigation volume P 128), from the beginning of the court investigation, the presiding judge John Young announced that "the court investigation will be conducted now, and the next court trial activities will be presided over by Judge Chen Jiahong", and the presiding judge continued to preside over the trial until the defendant finally made a statement.
? According to the Criminal Procedure Law and its judicial interpretation, both court investigation and court debate should be presided over by the presiding judge himself. The third paragraph of Article 6 of the Supreme People's Court's Provisions on the Work of Collegiate Panels of People's Courts (issued in 2002) clearly stipulates that the presiding judge "presides over trial activities". As for whether the judge can preside over the trial, Article 3 of the Provisions of the Supreme People's Court on Further Strengthening the Duties of the Collegiate Bench promulgated by the Supreme Law 20101clearly stipulates that the presiding judge can preside over the preparatory work before the trial, but can only "assist the presiding judge" in organizing the trial.
? Defenders believe that the presiding judge allowed the judge to preside over the court investigation and court debate without authorization, and failed to comprehensively preside over the court trial activities according to law, which violated the mandatory provisions of the procedural law and constituted "other legal proceedings in violation of the law" as stipulated in Item (5) of Article 238 of the Criminal Procedure Law and "may affect the fair trial".
Original ruling:
? I read the magical ruling of the Guizhou Provincial High Court again and didn't respond. Why is this?
Where the law is misinterpreted:
? Deliberately cover up the facts and say nothing!
? There are pictures and the truth, please see the screenshot of the trial transcript of the first instance:
Original defense opinion:
? 4. The voluntariness of the defendant's confession and the authenticity and legality of the written statement were not ascertained in the first instance of this case.
? According to Article 190 of the Criminal Procedure Law, if the defendant pleads guilty and admits punishment, the presiding judge shall inform the defendant of his litigation rights and the legal provisions of pleading guilty and admitting punishment, and examine the voluntariness of his confession and the authenticity and legality of his confession. However, in this case, the court directly ignored the voluntariness of Pan Zhili's confession and the authenticity and legality of his statement.
? During the trial, Pan Zhili repeatedly said, "Yes, it was really a helpless move, and it was done in full accordance with the organization's intentions and requirements." "This is a guilty statement and confession made in accordance with the intention of the organization." Regarding the above remarks, the collegial panel did not further verify whether Pan Zhili's confession was true and voluntary, nor did it further verify whether there were facts such as extorting confessions by torture and inducing confessions in his confession. In the end, it is considered that "the defender's opinion that the court refuses to adopt according to law is contrary to the intention of the plea agreement signed by the defendant Pan Zhili and the public prosecution agency and will not be adopted."
According to Article 226 of the Criminal Procedure Law: "If the defendant pleads guilty against his will during the trial, he shall be retried in accordance with the provisions of Section 1 or Section 3 of this chapter." The collegial panel of the first instance knew that the defendant's confession and punishment were "really helpless" and did not reopen the trial according to law, which was a major violation of procedure. Later, he ignored the defense of the defender's sentencing circumstances, which seriously affected the investigation of the facts of this case and Pan Zhili's own legitimate rights and interests. It constitutes "other proceedings against the law" as stipulated in Item (5) of Article 238 of the Criminal Procedure Law, which directly "affects a fair trial".
Original ruling:
? Regarding the defense opinion put forward by the appellant Pan Zhili's defender that "the authenticity and legality of Pan Zhili's confession and lighter punishment were not found in the first instance", after investigation, Pan Zhili voluntarily signed the plea and lighter punishment after carefully reading the notice of confession and lighter punishment and his defender also signed the plea and lighter punishment. During the trial of the first instance, Pan Zhili made it clear that he voluntarily signed a letter of commitment to plead guilty and admit punishment (before the trial). Therefore, this defense opinion cannot be established and will not be adopted by our court.
Where the law is misinterpreted:
? During the trial of the first instance, the defendant repeatedly said that he was "really helpless", and his confession and lighter punishment were not voluntary! According to the law, whether to sign the pledge of confession and punishment voluntarily is an important matter that must be found out through trial. The "voluntariness" in the trial cannot be replaced by "voluntariness" before the trial. Although it was "voluntary" in the trial, it immediately had the opposite meaning.
? There are pictures and the truth, please see the screenshot of the trial transcript of the first instance:
Article 399 of the Criminal Law of People's Republic of China (PRC) (the crime of bending the law for selfish ends) clearly stipulates that: whoever bends the law and judges, judicial officer bending the law, makes a person who knows that he is innocent be prosecuted, deliberately shields a person who knows that he is guilty from prosecution, or intentionally violates facts and laws and bends the law and judges in criminal trial activities, he shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than ten years.
From the comparison between the above ruling and the defense opinions, combined with the trial record of the first instance, it is not difficult to see that the collegial panel of the second instance in this case "deliberately violated the facts and laws in criminal trial activities and made a perverted judgment", which has violated Article 399 of the Criminal Law of People's Republic of China (PRC).
By the way. Some people say that the crime of bending the law for personal gain must have the element of "favoritism". This situation is different from this view. The reason for this is the following：
The constitutive elements of a crime cannot be determined by the charges, but by the charges. Because the charges were formulated by the National People's Congress and stipulated by the Supreme People's Court after the promulgation of the criminal law, there will be inaccuracies. For example, robbery generally requires the purpose of illegal possession. However, according to Article 289 of the Criminal Law, if gathering people to smash and rob "destroy" public and private property is defined as robbery, there is no need to have the elements of illegal possession.
Going back to the crime of bending the law for selfish ends, the word "or" precedes "deliberately violating facts and laws in criminal trial". Literally, as long as you deliberately violate the facts and the law and bend the law, it will constitute the crime of bending the law for selfish ends, and there is no need for the element of "bending the law".
Link to the original text of the ruling of Guizhou Provincial High Court
? 165438+20201October 24th