Chapter 379 Take a Gamble!

The next day, Yun Zhenxing came to Wanhua United Law Firm. After listening to Fang Yi's analysis, he also hesitated.

"Lawyer Fang, according to you, there is little hope for the second trial of my son's case?" Yun Zhenxing asked, his eyes full of anxiety.

"It cannot be said that there is no hope at all. For some controversial legal provisions, courts in various places have different understandings, and the results of the judgments are also different. What I just said is just speculation, which is the worst result." Fang Yidao.

"How confident are you?" Yun Zhenxing asked after a moment of silence.

"Fifty-fifty, this kind of thing can only be a gamble. If the second-instance court's understanding of the crime of misappropriation of funds is consistent with my understanding, or I convince the collegial judge of the second-instance court, the second instance will definitely change the sentence, and Yun Qi's sentence will definitely be Under three years.

Now that he has been detained for more than four months, plus the time for trial and verdict, I am ready to recommend that the court sentences him to six months in prison. If successful, Yun Qi will be able to come out soon. "Fang Yi said.

"Well, if this case is entrusted to you, the lawyer's fees..." Yun Zhenxing is not an indecisive person. After thinking for a moment, he made a decision and took a gamble!

"The lawyer's fee is 50,000 yuan. You have already given 10,000 yuan before. Just pay another 40,000 yuan. In addition, the travel expenses need to be calculated separately. They can be lump sum or reimbursed." Fang Yi said.

"Okay, I agree. Let's cover the travel expenses. It's quite hard for you to run around. I'll give you three thousand yuan for travel expenses. If my son's sentence can be reduced, I will give you another big red envelope. I will never give it to you. You suffer a loss." Yun Zhenxing said firmly.

Zhou Ying was still very efficient. After half an hour, he signed the entrustment procedures and paid the legal fees, and Yun Zhenxing left the law firm.

Yun Qi's case was going to trial soon. Before the trial, Fang Yi went to the detention center to meet with Yun Qi and told him his defense plan. Since he had filed an appeal and paid his lawyer's fees, he could only Follow Fang Yi's rhythm and take a gamble!

On the day of the trial, Fang Yi took advantage of the presiding judge to go through the previous procedures and moved his eyes to scan the auditorium. He saw Yun Zhenxing. There were about ten people sitting next to him, all stretching their necks, listening and watching. They look like relatives and friends of the Yun family.

When the judge of the collegial panel read out the first-instance judgment and the appellant Yun Qi read the appeal petition, the presiding judge said: "Please give the appellant's defense lawyer the reasons for the appeal."

"Presiding Judge, Judge: The defender believes that in this case, regarding the appellant Yun Qi's misappropriation of funds of 150,000 yuan without returning it, the first-instance court believed that "failure to return a relatively large amount" was an aggravating circumstance, and the first instance of the crime of misappropriation of funds should be used. The second sentence level, that is, the choice of sentencing between three years and less than ten years, is a misunderstanding of the amount standard for the crime of misappropriation of funds.

The defender believed that the amount of funds misappropriated by the appellant Yun Qi was relatively small and did not meet the conditions for the second sentence, so the first sentence should be applied, which is to be sentenced to fixed-term imprisonment of less than three years or criminal detention. Please ask the court to change the sentence in accordance with the law. complete! "Fang Yi said.

"Appellant Yun Qi, do you have any objection to the facts and charges found in the first-instance judgment?" the presiding judge asked.

"I have no objection to the facts and charges found in the first instance, but I have objections to the sentencing. I think the sentence imposed by the first instance court was too harsh," Yun Qi said.

“The prosecutor will now question the appellant on the facts found in the first-instance judgment,” the presiding judge said.

Yun Qi had no objection to the facts found in the first instance. The reason why the presiding judge asked the prosecutor to ask questions was to follow the procedure. Procedural justice is the justice of the litigation process, and substantive justice is the justice of the litigation results. Both are indispensable.

The leading male prosecutor held the evidence materials submitted by the county prosecutor during the first trial and asked questions around the facts of the case. In fact, everyone knew that the prosecutor was just confirming the facts of the case and going through a procedure. Yun Qi was very Cooperate.

When it was Fang Yi's turn to ask questions, it was simpler. He picked out questions that were beneficial to the appellant Yun Qi, asked two questions, and then ended the questioning. The focus of the case is no longer on the facts, but on the application of the law, so Fang Yi does not want to waste time on the facts.

"The following is the presentation of evidence and cross-examination. Do the prosecution and defense parties and the appellant have any new evidence to submit?" the presiding judge asked.

"There is no new evidence!" Sanfang said.

…

"The court investigation is over and the court debate is now underway. Before the debate, the court draws the attention of both the prosecution and the defense that the debate should mainly focus on determining guilt, sentencing and other controversial issues.

First, the appellant Yun Qi conducted his own defense. "The chief judge said.

"I recognize the facts and charges found by the court of first instance, but I think the three-year prison sentence sentenced by the court of first instance to me is too heavy... Finally, I implore the court to change the sentence of the court of first instance." Yun Qi said in a lengthy manner.

"Appellant Yun Qi's defender will speak." The presiding judge said solemnly.

"Okay, Judge."

After finishing speaking, Fang Yi thought for a while and then said: "The defender believes that according to the provisions of Articles 6 and 11 of the "Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Corruption and Bribery", misappropriation The amount standard for the capital crime of "carrying out profit-making activities with a large amount" is more than 100,000 yuan and less than 2 million yuan.

According to the provisions of Article 6 of the above-mentioned interpretation, if the amount of misappropriation of public funds is not returned, and the amount is more than one million yuan but less than two million yuan, it is a "serious case", that is, the statutory penalty for "misappropriation of public funds without refund" is upgraded to (more than three years and ten years). The standard amount of imprisonment is one million yuan.

The crime of misappropriation of public funds is a felony compared to the crime of misappropriation of funds. According to the above explanation, the statutory penalty for the crime of misappropriation of funds is one million yuan, but the statutory penalty for the crime of misappropriation of funds, which is a misdemeanor, is only one hundred thousand yuan. This obviously does not comply with the principle of proportionality of crime and punishment, and it cannot ensure that the punishment is worthy of the crime.

According to the legislative intent of the "Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in the Handling of Criminal Cases of Corruption and Bribery", and with reference to the amount standard for the crime of misappropriation of public funds, the amount standard for "larger amounts not to be returned" in the crime of misappropriation of funds, Should be more than 2 million yuan.

In this case, the appellant Yun Qi misappropriated a total of 150,000 yuan of funds from the village committee, which did not meet the amount standard of "large amounts not to be returned" in the crime of misappropriation of funds, but only met the standard of "large amounts for profit-making activities". Therefore, the appellant Yun Qi’s misappropriation of funds should be sentenced to fixed-term imprisonment of not more than three years or criminal detention.

The court of first instance sentenced the appellant Yun Qi to three years in prison for misappropriating funds, which was an error in the application of the law and inappropriate sentencing. The court is requested to change the sentence in accordance with the law. The defense recommended that the appellant be sentenced to six months' imprisonment. complete. "Fang Yi said.