Lawyer

"The procuratorate accused my brother of fraud and bluffing. If these two charges are proven, will the sentence be heavier?" Director Zhao asked.

"How should I put it, the procuratorate accused your brother of two crimes, and it is recommended that several crimes be punished together. We believe that your brother's behavior is a combination of laws and regulations, and should be punished as the crime of bluffing and deceiving (choose one felony).

Generally speaking, the combined punishment for several crimes is heavier than that of one felony, and the sentence is longer. "Fang Yi explained.

"Does combined punishment for multiple crimes mean that the sentences for the two crimes are added together and sentenced? For example, my brother was sentenced to three years for fraud and five years for bluffing and deceit. The total sentence for multiple crimes is eight years?" Director Zhao asked. road.

"That's not the case. There is a special algorithm for the combined punishment of several crimes, not a simple addition.

Article 60 of No. [-] of the "Criminal Law" stipulates that if a person commits several crimes before the judgment is pronounced (that is, the punishment should be combined for several crimes), except for those who are sentenced to death and life imprisonment, the total sentence shall not exceed the maximum sentence of the several punishments. Discretionary sentence to be executed.

For example, as you just said, three years for the crime of fraud and five years for the crime of bluffing and deceit, combined punishment for several crimes, then the total sentence is eight years, and the maximum sentence for the several sentences is five years.The court will choose a sentence in the range of five to eight years, depending on the circumstances of the case. It may be six years, or it may be seven or eight years, depending on the trial situation. "Fang Yi explained.

"Oh, I see. I thought it was a simple addition, and the sentence is over. There are so many arguments about feelings, which means that the court trial is very important. Right, Lawyer Fang?" Director Zhao suddenly felt enlightened.

"Yes, you can say that. The circumstances of the case determined during the trial will affect the judge's sentencing." Fang Yi said.

Director Zhao finally went through the entrustment procedures and paid the lawyer's fee. The lawyer's fee was 4 yuan, plus the previous 1 yuan, exactly 5 yuan.

Zhao Changguang's case started a week later.

……

"The facts of this case have been investigated clearly, the court investigation is over, and the court debate is now beginning. The court debate mainly revolves around the disputed facts that have not been certified by the court and how to apply the law based on the facts.

Let the prosecutor speak first. " said the presiding judge.

"Presiding judge, judge: ... This court believes that the defendant Zhao Changguang pretended to be a judge of the provincial court. After defrauding others' trust, he defrauded other people's property and other illegal interests successively. Among them, defrauding other people's property constituted a crime of fraud; the defendant Zhao Changguang The act of defrauding other illegal interests constitutes the crime of bluffing and deceiving, and it should be punished with multiple crimes.

In view of the fact that the defendant Zhao Changguang was sentenced to five years in prison for the crimes of fraud and bluffing and deceit, and within five years after his release, he committed another crime that should be sentenced to fixed-term imprisonment. He is a repeat offender and should be severely punished.

Combined punishment for several crimes, this court recommends that the defendant Zhao Changguang be sentenced to seven years in prison.complete. "The young female prosecutor with ear-length short hair said in a cold tone.

"The defendant, Zhao Changguang, defended himself," said the presiding judge.

"I admit to the alleged criminal facts and apologize for the harm caused to the victim, but I am just bluffing, not a fraud.

Regardless of whether I am defrauding money or defrauding women's trust, I am using a special identity as a cover. Even if I commit the crime of fraud, the laws and regulations overlap, and I should be punished according to one crime, not multiple crimes...

Ask the court to make a judgment according to law on the basis of ascertaining the facts.I plead guilty and accept punishment. "Zhao Changguang said sincerely.

He was sentenced to five years before. During his sentence, besides working, he also read a lot of books on criminal law. Others read books to test their academic credentials. He read books to understand the crimes he committed and study the loopholes in criminal law. .What the procurator said didn't need a lawyer's explanation at all. He understood it all. This was the result of his five years of study in it.

Before Fang Yi went to the detention center to meet, he also asked Fang Yi about related issues, so he was fully aware of what combined punishment for several crimes meant.

Zhou Ying on the defense seat was stunned, and thought: This guy actually used the law competition, too professional, too shameless, too shameless, too...

The presiding judge was also very upset: It seems that the guy in front of him has spent five years in prison for nothing. He knows the law, and he should abide by the law, but this guy actually knows the law and breaks the law... The real number is terrible!
"Defendant Zhao Changguang's defender issued a defense opinion." The presiding judge said.

"The presiding judge and the judges: the defender believes that the defendant Zhao Changguang has repeatedly pretended to be a court worker to defraud money and other interests. combined, the crime of bluffing and deceiving should be punished instead of combined punishment for several crimes. The reasons are as follows:
[-]. The defendant's act of deceiving the victims Zhou Hong and Zhou Yuan constituted the crime of bluffing and deceiving.

The defender believed that the defendant, Zhao Changguang, cheated Zhou Hong and Zhou Yuan into trusting him and then lived with them respectively on the grounds of introducing work and helping to file a complaint.

1. According to Article 270 of the "Criminal Law", the crime of bluffing and deceiving hinders the order of social management, and the object of its infringement is the prestige of state organs and social public order.The crime of fraud violates property rights, and its object of violation is the ownership of public and private property.

In this case, the defendant Zhao Changguang's deception of Zhou Hong and Zhou Yuan did not infringe on the property rights of the two daughters, but only hindered the order of social management.

2. The crime of bluffing and deceiving is carried out by posing as a person with a special identity, that is, posing as a staff member of a state agency to defraud others' trust and achieve the purpose of deception.The crime of fraud can be carried out by any means of fabricating facts or concealing the truth.

When Zhao Changguang, the defendant in this case, defrauded Zhou Hong and Zhou Yuan of other illegal benefits, he used the method of pretending to be a person with a special identity.

3. The criminal purpose of the perpetrator in the crime of fraud is to defraud property from others, while the purpose of the perpetrator in the crime of bluffing and deception is mainly to defraud other illegal interests from others.Therefore, the crime of bluffing does not have special requirements on the amount of property defrauded, while the crime of fraud requires a "larger amount" of defrauded property.

In this case, after the defendant Zhao Changguang cheated Zhou Hong and Zhou Yuan into trusting him, he lived with the two daughters respectively, which constituted defrauding other illegal benefits.

[-]. The defendant's act of defrauding Zou Jie's money by posing as a court worker constituted the crime of fraud and bluffing, which belonged to overlapping laws and should not be punished for several crimes.

According to Articles 260 and 270 of the "Criminal Law", the method of fabricating facts or concealing the truth in the crime of fraud includes the method of "pretending to be a staff member of a state agency".In the crime of bluffing and deceiving, the illegal benefits defrauded by the perpetrator include the "public and private property" defrauded in the crime of fraud.

In this case, Zhao Changguang, the defendant, pretended to be a court worker to defraud other people’s trust and illegally possess a relatively large amount of other people’s property, which conforms to both the criminal constitution of the crime of fraud and the crime of bluffing and deceiving.

Co-occurrence of legal provisions refers to the fact that a criminal act complies with the constitution of several crimes at the same time, so that several legal provisions can be applied at the same time, but only one felony can be punished.Therefore, this case can only be punished for the crime of bluffing and deceiving.

In view of the fact that after the defendant was brought to justice, he confessed truthfully, pleaded guilty and accepted punishment, and indeed showed remorse, the defender suggested that the defendant should be sentenced to three years in prison.complete. "Fang Yi said.

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

"In response to the defender's defense opinions, we mainly express the following points of view:

In this case, the defendant, Zhao Changguang, pretended to be a staff member of a state agency and defrauded several victims, that is, defrauding other people's property and other illegal interests other than property, that is, defrauding the trust of others and cohabiting with them.

We believe that the several acts of the defendant Zhao Changguang in this case should be evaluated separately. Both crimes and punishments.complete. " said the inspector.

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

"Based on the Prosecutor's Defense Opinion and Responses, the Defense Counsel issued the following Defense Opinion:

The defender believes that there is no sufficient reason and necessity for the combined punishment of several crimes in this case, and the reasons are as follows:
[-]. The defendant's conduct is a serial offence.
In this case, the defendant Zhao Changguang defrauded Zou Jie’s money (conforming to the crime of fraud and bluffing) and defrauded Zhou Hong and Zhou Yuan’s other illegal interests (conforming to the constitution of bluffing) within a few months.

However, the defendant Zhao Changguang continued to carry out the above-mentioned bluffing and deceiving behaviors based on a general intention and by pretending to be a staff member of a state agency.Therefore, the behavior of the defendant should be regarded as a serial crime in the criminal law, and should be punished as one crime, that is, it should be punished as the crime of bluffing and deceiving.

[-]. Several acts of the defendant belong to the cross-competition in the legal competition

In this case, Zhao Changguang, the defendant, pretended to be an official of a state agency to bluff and defraud other people's property, which constituted both the crime of bluffing and defrauding.The crime of fraud cannot fully include the crime of bluffing and deceiving.As a result, the crime of bluffing and deceit and the crime of fraud form a overlapping legal article, that is, cross-coincidence.

The evidence in the case shows that the amount of property defrauded by the defendant Zhao Changguang (5000 yuan) has only reached the penalty point for the crime of fraud. Convicted of bludgeoning.

In addition, in judicial practice, combined punishment of several crimes is not applicable to the same kind of crime before judgment, so there is no reason and necessity for combined punishment of several crimes in this case.complete. "Fang Yi said.

……

"... this case has been deliberated by the collegial panel and has formed a judgment opinion. In view of the opinions of the prosecution and the defense, combined with the focus of the dispute in this case, and based on the facts and evidence of this case, this court makes the following comments:

Defendant Zhao Changguang pretended to be a judge of the People's Court. After defrauding other people's trust, he defrauded others of money and other illegal benefits many times. The provisions of the crime of fraud, but it belongs to the overlapping laws, should be punished as a felony.

Because the amount of property defrauded by the defendant Zhao Changguang is relatively small, the punishment for the crime of fraud is relatively light, so he should be punished for the crime of bluffing and deceiving, and combined punishment for several crimes is not applicable.

The defendant, Zhao Changguang, was sentenced to five years in prison for the crimes of fraud and bluffing and deceit, and within five years after his release he committed another crime that should be punished with a fixed-term imprisonment. He is a repeat offender and should be given a heavier punishment.

In accordance with the provisions of Article 270 and Article No.60 of the "Criminal Law of the People's Republic of China", the judgment: the defendant Zhao Changguang committed the crime of bluffing and deceiving and was sentenced to four years in prison. "The presiding judge pronounced the sentence in court.

After hearing the verdict, Zhao Changguang was taken aback. After another four years, he wondered if he would be imprisoned in the same prison as last time.

Director Zhao, who was sitting in the auditorium, was not feeling well. Although the sentence this time was one year shorter than last time, four years is not short, it should be!deserve it!Who told you not to do good things.

The court's verdict was within Fang Yi's estimated sentence. He planned to meet with Zhao Changguang in a few days and ask him if he wanted to appeal, but judging by the calm appearance of the defendant, he didn't seem to want to appeal.

Fang Yi guessed right. Based on Zhao Changguang's understanding of the law, he felt that appealing was useless except for wasting time.

After the judgment of the first instance was pronounced, the defendant Zhao Changguang did not file an appeal within the statutory time limit, nor did the procuratorate lodge a protest, and the judgment became legally effective.The case of Zhao Changguang was thus closed.

In the afternoon of the next day, Zhou Ying sent the written summary of the case to Fang Yi, and then walked into Fang Yi's office quickly.

"Lawyer Fang, I've finished the summary of the case you asked me to write. It's just..." Zhou Ying said.

"Just what?" Fang Yi looked away from the computer screen and looked at Zhou Ying.

"I don't quite understand one thing. When we took the judicial examination, we learned to imagine an optional felony, and the law applies to a special law. When you said that the article was an optional felony in court, the court also determined it that way. Did I learn Is your knowledge outdated?" Zhou Ying looked at Fang Yi in a daze.

"Actually, the knowledge you have learned is not outdated, it's just a little superficial.

The overlapping of legal provisions can be roughly divided into two types. One is the overlapping of legal provisions with all-inclusive relationship. The crime of negligently leaking military secrets is inclusive and overlapping; the other is overlapping and overlapping legal provisions, for example, the relationship between the crime of fraud and the crime of bluffing and deceiving involved in this case, that is, the crime of fraud cannot include the crime of bluffing and deceiving.

Only when the behavior of bluffing and deceiving is manifested as defrauding more than a large amount of property, it is possible to form a cross-overlapping relationship with the crime of fraud, that is, cross-coincidence.

I say that, you understand? "Fang Yi asked.

"Well, I understand this." Zhou Ying said.

"The general view is that the lex specialis should be applied first when the laws and regulations overlap. However, a few scholars believe that under special circumstances, if the lex specialis is too light, you can choose to apply the heavy law.

The co-occurrence of laws and regulations you learned during the exam is a general theory, which is consistent with inclusive competition and co-operation. The principle of application is that special laws are superior to ordinary laws, that is, special laws are applicable instead of ordinary laws.In this way, the punishment can be adapted to the crime.

Cross-competition is a special case, and the principle of applying heavy legal provisions is better than light legal provisions, that is, choosing to apply the legal provisions with heavier statutory penalties.

This is because the real situation is always more complicated than what is shown in the book. For example, in Zhao Changguang’s case, the sentence for the crime of fraud must be shorter than the sentence for the crime of bluffing and deceiving, because he only defrauded 5000 yuan, and he has just reached the starting point for the crime of fraud. , so only by applying the crime of bluffing and deceiving can the crime be adapted to the punishment. "Fang Yi explained.

"Oh, I seem to understand." Zhou Ying said thoughtfully.

"When you go back and bind the case files, turn over Zhao Changguang's case files again. You will see the truth after reading the book a hundred times. The same is true when you read the case files. You must understand the judge's thinking in judging the case. Only in this way can you grow quickly." Fang Yi smiled. road.

"Thank you, Lawyer Fang." Zhou Ying said sincerely. It's not easy these days to meet a master who is willing to teach his disciples sincerely.