Lawyer

"Master and I have gone to the detention center to see Ge Xinggen, and the incident he said is generally consistent with what is recorded in the file, and he confessed to the facts of the case.

However, the victim's statement contained in the case file is different from the defendant's confession. The victim claimed that he was violently robbed by Ge Xinggen and others.

Moreover, the victim, through her agent, repeatedly asked the judiciary to severely punish the defendant for the crime of robbery. "Although Cheng Du is chubby, he is articulate, logical, and quick to do things. He is not annoying at all. On the contrary, it makes people feel very interesting after a long time of contact.

"The public security agency opened the case for robbery, and then the procuratorial agency approved the arrest for fraud. Finally, the procuratorial agency filed a public prosecution for theft, but the victim claimed that he was robbed. This case is interesting." Zhou Ying said thoughtfully.
"Lawyer Du, what do you think? About the charges." Yu Wendong asked.

"We believe that the crime of theft is correct. The defendant's behavior constitutes the crime of theft." Du Yong said.

"The reason?" Yun Qiao blinked and asked.

"Let's analyze each crime by crime. This is how we understand it. Listen and give us your opinions:

First, the behavior of the defendant Ge Xinggen in this case cannot be identified as the crime of robbery.

The crime of robbery refers to the act of forcibly robbing public or private property by means of violence, coercion or other methods on the spot.The direct evidence in this case is only the confession of the defendant Ge Xinggen and the statement of the victim Hu Haidan.

In this case, the defendant Ge Xinggen did not confess that he used violence, threats, etc. during the crime, and the evidence in the case cannot prove that the defendants Ge Xinggen, Lan Shantai and Wu Wanzhong used violence, coercion, etc. during the crime, so we There are reasonable doubts about Hu Haidan, the victim in this case, about the violent robbing of property by Ge Xinggen and others, so this case cannot be determined as a crime of robbery.

Second, the behavior of the defendant Ge Xinggen in this case should not be identified as a crime of fraud, but as a crime of theft.

The key to distinguishing the crime of fraud from the crime of theft is whether the victim handed over the property based on misunderstanding.Theft is a crime of stealing property secretly without the knowledge of the victim.

Although the crime of fraud and theft are both property-violating crimes aimed at illegally occupying other people's property, the crime of fraud belongs to the acquisition of property based on the victim's flawed will, requiring the victim to fall into a misunderstanding and dispose of the property by himself.

In the case of parabolic fraud, the general method of defrauding money is: after the victim is deceived into revealing the bank card password, the victim usually hands over the property to the defendant for verification by a so-called third party, thus causing the property to be defrauded.

Since the victim mistakenly believed that the defendant was really looking for a third party to verify and hand over the property, which is in line with the characteristics of disposing of property due to misunderstanding in the crime of fraud, the behavior of the defendant in this case constitutes a crime of fraud.

However, the situation in this case is different from the past. Although the victim voluntarily revealed the bank card password, the defendant and the co-perpetrators obtained the victim's bank card not because the victim voluntarily handed it over because of a misunderstanding, but because the defendant Ge Xinggen was under the cover of his accomplices. It was obtained secretly while the victim was not paying attention, so the behavior of the defendant in this case cannot be determined as a crime of fraud, but should be determined as a crime of theft. "Du Yong explained.

"Just now Cheng Du said that the defendant also stole a credit card. I remember that Article 196 of the "Criminal Law" stipulates that fraudulently using someone else's credit card constitutes the crime of credit card fraud.

Will Ge Xinggen, the defendant in this case, be sentenced to several crimes and punished by the court? " Yun Qiao asked.

"No, we also had this concern before, but according to the third paragraph of Article 196 of the "Criminal Law", whoever steals a credit card and uses it shall be convicted and punished according to the provisions of Article 264 of this law.

That is to say, in this case, the defendant's act of stealing and using the credit card should be convicted and punished as the crime of theft, and cannot be separately designated as the crime of credit card fraud.It cannot be counted and punished. "Du Yong explained.

Although criminal lawyers are very familiar with the "Criminal Law", not every legal article can be memorized backwards. They only know the legal articles that they often use, and other legal articles need to be consulted when handling a case.

To be cautious, Du Yong asked Cheng Du to inquire about the relevant crimes before, so when Yun Qiao brought up credit card fraud, he was able to answer fluently.

"Lawyer Du, Ge Xinggen and other three committed crimes in this case, and two of them absconded. Just now you said that the only evidence that directly proves that the defendant Ge Xinggen committed the crime of theft is the defendant's confession, and the only evidence that proves that the defendant constituted the crime of robbery is the victim's statement, how did you determine that the defendant must have committed the crime of theft?
In other words, what circumstantial evidence do you use to judge that the defendant secretly stole the victim's property instead of using violence? "Cao Yongzheng listened more carefully, and after deliberation, some links were not right.

"This is more complicated to say. Since the two co-perpetrators other than the defendant Ge Xinggen are at large and there are no witnesses, the only direct evidence is the confession of the defendant Ge Xinggen and the statement of the victim Hu Haidan, and the facts proved by these two pieces of evidence are Quite the opposite, which is not necessarily a bad thing.

In my opinion, there is insufficient evidence on both sides. This is a doubtful case, but the responsibility to prove that the defendant constitutes a certain crime lies with the public prosecution agency, not the defendant. The doubtful case is in the defendant's favor, so I will make this determination. "Du Yong smiled.

"'Suspiciousness favors the defendant' is an important judicial principle. The application of this principle should be based on the premise that the facts cannot be ascertained. If the facts can be ascertained through careful examination and judgment of evidence, and proper evidence re-examination, the This principle should be applied." Cao Yongzheng said, looking at Du Yong.

His meaning is very clear. Is it really impossible to find out the facts of the case with the existing evidence?

Du Yong smiled.

"Lawyer Du, I'm not doubting your professional ability, I'm just curious. Please don't get me wrong." Cao Yongzheng was a little embarrassed.

"It's okay, I can understand, if I come across a case I'm interested in, I'll break the casserole and ask the end. I'll show you the main evidence of the case I've sorted out, and you can read it while I'm talking." As he said, Du Yong said Cheng handed over the compiled case evidence and cross-examination opinions to Cao Yongzheng.

"According to defendant Ge Xinggen's statement, he obtained property by means of a combination of fraud and theft, while according to Hu Haidan's statement, Ge Xinggen robbed his property.

Other evidence (such as the bank surveillance video of Ge Xinggen's withdrawals) cannot directly prove the nature of the crime, but can only indirectly prove the crime of property infringement.

Therefore, accurately determining the facts of the crime is the most critical prerequisite for the determination of this case..." Du Yong felt a little dry in his mouth when he said this, and swallowed.

Two more today.