Lawyer

Chapter 204
After a pause, Fang Yi continued: "In addition, the defender reminded the presiding judge that the buyer surnamed Wu mentioned in this case is an investigator of the Forest Public Security Bureau, and his real identity is recorded in the court records of the first instance. , on the fifth line on page three of No.90. The cross-examination is complete."

After Fang Yi finished speaking, the three judges of the collegial panel bowed their heads and whispered a few words, and one judge began to look through the case files.

……

"The court investigation is over and now for court debate.

Before the debate, the court draws the attention of both the prosecution and the defense that the debate should mainly focus on determining charges, sentencing and other controversial issues.Let the appellant and defender speak first.

Appellant Zhao Cuixia can defend herself. " said the presiding judge.

"I don't think I constituted the crime of selling rare or endangered wild animals. I was lured by a man surnamed Wu to buy wild animals as a matchmaker. I was only a matchmaker and should not be considered a crime.

In addition, the person surnamed Wu is from the forest police. I think they deliberately lured me into committing a crime.I'm done. "Zhao Cuixia said

"The defender of the appellant Zhao Cuixia made a statement," said the presiding judge.

"Judging from the facts of this case, the buyer surnamed Wu has been urging Zhao Cuixia to help him buy wild animals for as long as six months. It can be seen that Zhao Cuixia did not take the initiative to sell wild animals under state protection.

Without knowing the fact that Zhao Cuixia sold wild animals protected by the state, the forest public security agency sent investigators to actively lure Zhao Cuixia to sell wild animals protected by the state. Zhao Cuixia participated in the transaction of the two whooper swans as an intermediary. The introduction fee obtained from it is only 50 yuan.

The investigative agency collects evidence by means of inducement, which is contrary to the provisions of the Criminal Procedure Law. The evidence it collects is illegal and should not be accepted.The court is requested to revoke the criminal judgment of the court of first instance in accordance with the law and acquit the appellant (defendant in the original trial) Zhao Cuixia.

The defender finished speaking. "Fang Yi said.

"Now it's up to the public prosecutor to speak." The presiding judge said.

"Okay, Judge.

The appellant, Zhao Cuixia, illegally sold whooper swan, a national second-class protected wild animal, for profit. Her behavior has constituted the crime of illegally selling rare and endangered wild animals.

Subjectively, Zhao Cuixia had the idea of ​​selling wild animals for profit, but objectively she did sell rare and endangered wild animals. We believe that the facts found in the first instance were clear and the applicable penalty was appropriate. We ask the court to reject the appellant’s request according to law.

Presiding judge, the public prosecutor has finished speaking. " Inspector Song said.

"The prosecutor can respond to the defender's defense opinion." The presiding judge said.

"Okay, regarding the defender's defense opinion, we believe that even if the appellant Zhao Cuixia's illegal behavior has been influenced by others, if she does not have the subjective will to illegally seek profit, it is impossible for her to commit illegal and criminal acts.

Although the whooper swan does not belong to Zhao Cuixia, she participated in the trade of wild animals under state protection and played a role in fueling the flames.No matter how much she gains, it should constitute a crime. " Inspector Song said.

"The defender can respond to the public prosecutor's opinion." The presiding judge said.

Fang Yi looked at the record on the paper and said, "The defense responds to the public prosecutor's comments as follows:
[-]. The criminal behavior of the appellant was caused by the investigation by the investigators.

The so-called temptation investigation means that the investigators set up traps or bait to imply or induce the object of investigation to reveal his criminal intention and commit a criminal act, and arrest the tempted person when the criminal act is carried out or after the result occurs.

In this case, the appellant, Zhao Cuixia, was originally engaged in the restaurant business, and occasionally bought hares and other non-precious and endangered wild animals as legal traders. The investigation agency did not know that she had any criminal intentions and criminal acts of selling wild animals under state protection.

Under such circumstances, investigators posing as buyers surnamed Wu repeatedly asked Zhao Cuixia to purchase precious and endangered wild animals and lured Zhao Cuishia. Afterwards, Cuixia Zhao contacted Liu Sanding and reported the news of whooper swans to the buyer surnamed Wu, and demanded The deposit is 5000 yuan.

The buyer surnamed Wu as an investigator asked Zhao Cuixia to actively facilitate the transaction and paid a deposit in advance.When Zhao Cuixia handed over the big swan to the buyer surnamed Wu as an intermediary and demanded an intermediary fee from him, she was caught on the spot by forest police officers ambushing around.

It can be seen from the above that Zhao Cuixia had no criminal intention of selling nationally protected animals before being lured into the investigation, and her criminal behavior was caused by the repeated temptation of the proactive purchase behavior of the buyer surnamed Wu.The defender believes that this case should be a typical "intention-induced" temptation investigation.

[-]. The appellant who commits a crime due to being lured by the means of enticing investigation should not constitute a crime.

Temptation investigation is deceitful to a certain extent, contradicts the pursuit of justice value in criminal proceedings, and has insurmountable defects. It is easy to make people lose trust in judicial justice and lead to abuse of investigative power. Moreover, the legality of temptation investigation Sex and appropriateness have always been controversial.

At present, there are few legislative regulations on the investigation of temptation in the judicial field, and there are only some scattered regulations. For example, the Ministry of Public Security's "Regulations on the Work of Criminal Special Affairs" stipulates: "It is strictly forbidden to commit criminal special circumstances to induce crimes." The Minutes of the Symposium on the Work of Criminal Cases provides guidance on the sentencing of drug death penalty cases uncovered by temptation investigations.

In view of the irreplaceable special role of temptation investigation in solving some serious crimes, it should be admitted that its use is allowed under certain conditions. The above-mentioned relevant regulations also reflect this spirit, but in order to reduce its possible negative impact However, when the relevant legislation is not yet complete, the importance of strictly restricting the investigation of temptation in the judiciary is particularly important.

Defenders believe that the purpose of enticement investigation is to discover criminals, not to "create" criminals.The essence of law is to manage citizens, maintain social order, and urge citizens to be good and abide by the law and order. If relevant agencies use legal means to induce the ugliness in human nature to germinate and prompt citizens to commit crimes, this is contrary to the justice of the law.

Therefore, for the "crime-inducing type" temptation investigation, since it essentially creates crimes in the name of temptation investigation, this situation should not be allowed.

In this case, the investigative agency used the "intention-inducing" temptation investigation method, which caused Zhao Cuixia, who had no criminal intention, to have an intention to commit a crime and committed a crime.The evidence obtained by using this investigation method violates the provisions of the Criminal Procedure Law of our country on prohibiting the collection of evidence by means of inducement and deception, so it should be classified as illegal evidence and should be excluded. "

(End of this chapter)