Notice on printing and distributing the forty-fifth batch of guiding cases in the Supreme People’s Procuratorate
People’s procuratorates of all provinces, autonomous regions and municipalities directly under the Central Government, military procuratorates of the People’s Liberation Army, and people’s procuratorates of Xinjiang Production and Construction Corps:
By the decision of the fifth meeting of the 14th Procuratorial Committee of the Supreme People’s Procuratorate on May 26th, 2023, five cases (Inspection Case No.178-182), such as the second-instance protest case of crimes such as intentional injury by Wang and others, are now released as the 45th batch of guiding cases (the subject of criminal protest) for reference and application.
the Supreme People’s Procuratorate
June 25, 2023
The second instance protest case of Wang and others’ intentional injury and other crimes
(Inspection No.178)
[Keywords:]
Protest in second instance   Crime of evil forces   Coercing minors to commit crimes   Intentional injury to death   Review of compensation understanding agreement
【 gist 】
Procuratorial organs should strengthen special and priority protection for minors in handling cases, and severely punish those who commit crimes against minors with cruel means, bad circumstances and serious consequences. Coercing a minor to commit a drug crime, joining a criminal group of evil forces, and beating the minor to death by violent means are "extremely serious crimes" and the death penalty should be applied according to law. If the people’s court gives a lighter sentence on the grounds that the defendant and the injured party have reached an understanding agreement on compensation, the people’s procuratorate shall conduct a substantive review of the understanding agreement on compensation and comprehensively and accurately analyze whether the lenient punishment is appropriate. If an understanding of compensation is reached, but it is not enough for lenient punishment, the people’s procuratorate shall lodge a protest in accordance with the law, supervise and correct the wrong judgment, implement the principle of adapting the crime to punishment, and safeguard fairness and justice.
[Basic case]
Defendant Wang, male, born in March 1985, was unemployed and was sentenced to six months in prison for committing theft.
Defendant Long Mou, male, born in December 1989, is unemployed.
Defendant Wang Mouxiang, male, born in January 1963, is unemployed.
Defendant Mi Mouhua, female, born in October 1974, is unemployed.
The victim An Moujia, male, was born in March 2007 and died at the age of 11.
The victim An Mouyi, male, was born in May 2010 and is the younger brother of An Mouyi.
From the end of November 2017 to January 2019, in order to gain illegal benefits, Wang organized Longmou, Wang Mouxiang and Mi Mouhua to sell heroin 36 times in Panzhihua City, Sichuan Province, and allowed many people to take drugs in their rented houses. In June and July of 2018, in order to cover up the facts of drug crimes, Wang "adopted" his two sons An Moujia and An Mouyi on the condition of giving heroin worth 100 yuan to drug addicts Ji Mou, and controlled and coerced them to help them with drug trafficking, and also beat and abused them for a long time. Since August 2018, Wang has repeatedly forced An Mouyi to take heroin and other drugs in his rented house (after testing, morphine, monoacetylmorphine and methamphetamine were detected in An Mouyi’s hair samples, and An Mouyi’s left outer auricle was obviously deformed due to being beaten by Wang and others without timely treatment). Since November 2018, Wang arranged for Long to lead 8-year-old An Mouyi to sell drugs in Huashan, the eastern part of the city. Wang led 11-year-old An Moujia to buy drugs for sale and then "sporadic drug trafficking". Wang and others also have tools such as plastic pipes and electric batons for beating and controlling An Moujia and An Mouyi. From the evening of January 22, 2019 to the early morning of the next day, Wang learned from Longmou that An Moujia informed his mother Ji Mou about the drug trafficking of the gang, regardless of Wang Mouxiang’s dissuasion, and together with Long Mou burned cigarette butts in the rented house, using plastic pipes, electric batons and other tools to beat and shock An Moujia, and forced An Moujia to beat An Moujia, and also instructed Long Mou to force An Moujia to take drugs. On the morning of the 23 rd, An Moujia suffered from a large area of skin and soft tissue contusion.Hemorrhagic and traumatic shock death caused by subcutaneous hemorrhage. After the incident, Wang’s relatives reached a compensation agreement with Jimou, agreeing to compensate 100,000 yuan, paying 50,000 yuan in advance, and Jimou issued a letter of understanding, and the balance was paid before December 31, 2021. On December 5, 2019, Ji issued a letter of understanding after his family received 50,000 yuan.
On November 14, 2019, Panzhihua People’s Procuratorate filed a public prosecution, accusing the defendant Wang of intentional injury, drug trafficking, forcing others to take drugs, and hosts of others, and Wang and others constituted a criminal group of evil forces. On May 29, 2020, the Intermediate People’s Court of Panzhihua City held through trial that the criminal group of evil forces headed by the defendant Wang had repeatedly committed criminal activities of drug trafficking, intentional injury, sheltering others from taking drugs and forcing others to take drugs, which should be severely punished according to law. In particular, Wang was cruel in the crime of intentional injury and should have been severely punished. However, he considered that he had compensated the injured party for some economic losses and obtained an understanding, and was sentenced to death with a suspended sentence for intentional injury. Sentenced to 14 years in prison for drug trafficking and fined 50 thousand yuan; Sentenced to eight years in prison for forcing others to take drugs and fined 20 thousand yuan; Hosts of others was sentenced to three years’ imprisonment and fined 10,000 yuan. He was sentenced to death, suspended for two years, deprived of political rights for life, fined 80,000 yuan and restricted from commutation. The other three defendants were sentenced to five years to life imprisonment for intentional injury, drug trafficking and hosts of others. Defendants Wang, Long and Mi Mouhua refused to accept the judgment of the first instance and appealed.
[Procuratorial organ’s performance process]
(a) to put forward and support the protest
On June 7, 2020, Panzhihua City People’s Procuratorate lodged a protest with the Sichuan Higher People’s Court on the grounds of improper sentencing, and submitted it to the Sichuan Provincial People’s Procuratorate to support the protest. On August 21st of the same year, the People’s Procuratorate of Sichuan Province supported the protest.
During the review of the case, the People’s Procuratorate of Sichuan Province supplemented and improved some evidence around the key issues such as "whether the circumstances of compensation and understanding are enough to affect sentencing" and "whether Wang can be sentenced to death with a reprieve": First, re-examine the scene, review some witnesses and visit and investigate, focusing on the way and intensity of the injury behavior; The second is to ask witnesses to find out that the two victims were in good health and did not take drugs before being controlled by Wang and others; Third, in view of the fact that residents around the rented house were unwilling to testify because of panic during the first trial, they explained the law and collected and reinforced evidence of crimes committed by evil forces such as Wang and others who had beaten and abused two children for a long time and threatened to intimidate the surrounding people; The fourth is to verify the understanding of compensation, and find out that the defendant’s compensation is attached with the conditions that the injured party issues a letter of understanding, the court does not impose the death penalty, and the balance is paid after two years.
(two) the protest opinions and reasons
The procuratorate of Sichuan province believes that the court of first instance convicted the defendant Wang and others of drug-related crimes accurately and sentenced them appropriately; The behavior of intentional injury caused by Wang and others to the death of minors is accurate, but the sentencing is extremely light. According to the Opinions of the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security and the Ministry of Justice on Severely Punishing Crimes Committed by Evil Forces by Minors in March 2020, the act of coercing minors who have not reached the age of criminal responsibility to join evil criminal groups should be severely cracked down and severely punished according to law. Defendant Wang, as the ringleader of the evil criminal group, has long controlled and used minors to sell drugs, and has beaten, abused and maimed minors to death. The criminal motive is despicable, the means are cruel, and the circumstances are bad. He is a criminal with "extremely serious crimes" and should be executed immediately according to law. The specific reasons are as follows:
1. The court of first instance sentenced Wang to death with a reprieve on the grounds that his relatives compensated him and obtained the understanding of the injured party, and the sentencing was obviously improper. First, the defendant’s "compensation" for the loss of the injured party is an obligation that he should perform according to law, and it is not a necessary condition for lenient punishment. Moreover, the "compensation" in this case is attached with the conditions that the victim’s relatives issue a letter of understanding, the court does not sentence the death penalty to be executed immediately, and the full amount will be paid two years later, which is not sincere repentance; Second, the victim’s mother, Jimou, is a drug addict. Just to collect heroin with the value of 100 yuan, she gave up her legal support obligation, handed over two young children to drug dealers for control and abuse, and ignored the scars of the two victims for a long time. The letter of understanding issued by Jimou as the subject of understanding is not enough to produce the legal consequences of lenient punishment; Third, the defendant Wang’s motive and purpose of "adopting" two children and intentionally hurting them is to control and coerce them to commit drug crimes. Even if a compensation understanding agreement is reached for such extremely serious crimes, it is not enough to produce the legal consequences of lenient punishment.
2. Comprehensive evaluation of the facts, circumstances and consequences of this case, the court of first instance sentenced Wang to an improper death sentence. First, the target of infringement is minors, who generally lack the ability of self-protection and are the targets of special protection by law. In this case, the defendant Wang coerced children to take drugs and drug trafficking, beat, abused and maimed two children and caused one death, and the crime target was special; Second, the criminal motive is despicable. Wang has long controlled and used the victim for drug trafficking, and he was angry at the victim for fear of the crime being exposed, and he was beaten for a long time and with high intensity; Third, the criminal means are cruel, especially when the victim is tortured for a long time and his body is getting weaker and weaker, the defendant also forces the victim to take drugs, which accelerates the death of the victim; Fourth, the social impact is extremely bad. In order to commit drug crimes, Wang and others have forced and driven children to commit drug crimes for a long time, forcing children to take drugs, causing a child to die, causing serious social consequences, and the criminal behavior is outrageous, seriously challenging the bottom line of social morality. Therefore, Wang’s behavior not only infringes on minors’ right to life and health, but also seriously disrupts social order, which is extremely harmful to society and extremely serious. At the same time, Wang has the ringleader of evil criminal groups, criminal record theft and other aggravating circumstances, and plays a major role in the crime of intentional injury. His subjective malignancy is extremely deep and his personal danger is extremely great, so he should be severely punished according to law.
(3) the result of the protest
On October 30, 2020, the Higher People’s Court of Sichuan Province made a second-instance judgment, adopted the protest opinions of the People’s Procuratorate, commuted Wang’s death penalty for intentional injury, and decided to execute the death penalty. In March 2021, the Supreme People’s Court ruled to approve the death penalty.
(4) Pay attention to the protection of minors.
In the process of handling cases, the procuratorial organs in Sichuan Province pay attention to the protection of minors involved in the case, and promote the whole society to protect minors in various ways to create a good social environment for the healthy growth of minors. The victims An Moujia and An Mouyi’s mother Jimou were sentenced and served in prison in August 2019 for drug trafficking. Their fathers were drug addicts and have been missing for many years. The Sichuan Provincial People’s Procuratorate actively promoted the local civil affairs department to identify the victim An Mouyi as "the fact that no one raised the child", changed the guardian to his grandfather, coordinated and solved the problems of household registration, enrollment and living allowance, provided psychological counseling, and entrusted a third party to supervise the judicial assistance funds. In view of the problems exposed in this case, such as urban housing rental supervision, key personnel management, street security inspection, etc., Panzhihua City People’s Procuratorate issued procuratorial suggestions to relevant departments, promoted the implementation of rectification, and strengthened the prevention and control of social security.
[Guiding significance]
(a) the procuratorial organs should make a substantive review of the "compensation understanding agreement" and accurately put forward sentencing suggestions.Compensation understanding is a common discretionary light punishment in criminal cases, and it is one of the factors to evaluate the defendant’s attitude of confession and repentance and personal danger. During the review, the main considerations should be as follows: First, the compensation understanding is "can" be given a lighter punishment, not "must" be given a lighter punishment, and the applicable premise is that the defendant pleads guilty and repents; Second, the compensation understanding should examine whether the social relations damaged by criminal acts have been repaired to a certain extent. In the case that the victim dies or cannot express his will independently, the compensation understanding agreement issued by the victim’s relatives should be strictly examined and comprehensively and accurately grasped; Third, crimes that seriously endanger social order and affect people’s sense of security must be comprehensively measured and evaluated appropriately and accurately in combination with the facts, nature and other circumstances of the crime. On this basis, the procuratorial organ should make a substantive review of the compensation understanding agreement, such as whether the subject of understanding is qualified, whether the understanding will be voluntary and true, whether the understanding content is legal, whether there are unreasonable conditions attached, etc., and comprehensively put forward sentencing suggestions accurately.
(2) The death penalty should be resolutely applied to crimes against minors with "extremely serious crimes".The death penalty is only applicable to a very small number of criminals who commit extremely serious crimes. According to the Opinions of the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security and the Ministry of Justice on Punishing Crimes Committed by Evil Forces by Minors according to Law, we should severely crack down on and severely punish the acts of coercing minors who have not reached the age of criminal responsibility to join evil criminal groups according to law. The ringleaders of such evil criminal groups use minors to commit drug crimes, force minors to take drugs, and cause the death of the minors. The criminal means are cruel, the circumstances are bad, and the social harm is extremely serious. Therefore, the death penalty should be resolutely applied according to law.
(three) to strengthen the special and priority protection of minors, and severely punish crimes against minors according to law.Caring for the healthy growth of minors is the common responsibility of the whole society. In handling cases, procuratorial organs, on the one hand, should severely punish those who commit crimes against minors with cruel means, bad circumstances and serious consequences; On the other hand, we should pay attention to the protection of minors, promote comprehensive assistance to minors involved in the case through judicial assistance, psychological counseling, public interest litigation, and put forward procuratorial suggestions on social governance, and strive to create a good environment for the healthy growth of minors.
[Relevant regulations]
Articles 48 and 234 of the Criminal Law of People’s Republic of China (PRC)
Articles 228, 232 and 236 of the Criminal Procedure Law of People’s Republic of China (PRC) (revised in 2018)
Articles 3 and 10 of the Law of People’s Republic of China (PRC) on the Protection of Minors (revised in 2012) (now Articles 4 and 7 of the Law of People’s Republic of China (PRC) on the Protection of Minors revised in 2020).
Articles 1 and 2 of the Opinions of the Supreme People’s Court, the Supreme People’s Procuratorate, Ministry of Public Security and Ministry of Justice on Severely Punishing Crimes Committed by Minors according to Law (implemented in March 2020).
Article 9 of the Guidelines for Criminal Protest Work of the People’s Procuratorate (implemented in 2018)
Procuratorate handling the case: Sichuan Provincial People’s Procuratorate Panzhihua People’s Procuratorate of Sichuan Province
Prosecutor in charge: Feng Jian   Wang Xiaolan   Qin Lirong   Baihua
Case writer: Li Chunjin   li xiaoxia
Liu moumou’s second-instance protest against drug trafficking
(InspectionNo. 179th)
[Keywords:]
Protest in second instance   Crime of drug trafficking   The defendant pleaded not guilty   Eliminate reasonable doubt   Direct revision of sentence
【 gist 】
If the people’s court declares the defendant innocent on the grounds of "reasonable doubt", the people’s procuratorate believes that the evidence on file can form a complete chain of evidence, and the defendant’s innocence excuse is not confirmed by evidence, it shall lodge a protest. At the same time, if it is really necessary, it is necessary to supplement and improve the evidence and explain the "reasonable doubt" that the people’s court thinks exists, so as to accurately eliminate the "reasonable doubt" and fully support the protest opinions and reasons. The people’s procuratorate may suggest that the people’s court directly revise the sentence in accordance with the law if the protest case is not beyond the scope of prosecution and accusation after finding out the facts.
[Basic case]
Defendant Liu Moumou, female, born in June 1982, is unemployed.
On December 21, 2015, the public security organ received a report from Zhou, and seized 1 kg of methamphetamine in a tea bag on the pedal of the passenger seat of a vehicle driven by Liu Moumou near a residential area in Panyu District, Guangzhou, Guangdong Province. One gold mobile phone was seized in the driver’s seat, one black mobile phone was seized in Liu’s hand, and one black wallet was seized in the passenger seat, including eight bank cards. Liu said that he runs a bird’s nest business, and the drugs in the car were left by a friend Zhou who just got off the bus. The next day, Liu was detained in criminal detention. Inquired by the public security organs, Zhou claimed that the drugs in the car were owned by Liu, and Liu asked him to help sell them. He lied to find the drug buyer in Liu’s vehicle and called the police after getting off the bus.
On September 22, 2016, the People’s Procuratorate of Panyu District, Guangzhou filed a public prosecution against Liu for the crime of illegal possession of drugs, and later changed the prosecution for the crime of drug trafficking. After three sessions, Panyu District People’s Court held that the defendant may be sentenced to more than life imprisonment and submitted to Guangzhou Intermediate People’s Court for jurisdiction. On July 4, 2017, the Guangzhou Municipal People’s Procuratorate filed a public prosecution against Liu for drug trafficking. After two sessions, Guangzhou Intermediate People’s Court held that although the drugs involved were found in the car of the defendant Liu Moumou, Zhou had just left the co-pilot seat of the vehicle involved before reporting, and the drugs were seized from the pedal of the co-pilot’s seat, which could not rule out Liu Moumou’s reasonable excuse that the drugs belonged to Zhou. Therefore, the fact that the procuratorate accused the defendant Liu of drug trafficking was unclear and the evidence was insufficient. On February 2, 2018, Liu was acquitted in the first instance.
[Procuratorial organ’s performance process]
(a) to put forward and support the protest
On February 12, 2018, the Guangzhou Municipal People’s Procuratorate filed a protest. On July 31 of the same year, the Guangdong Provincial People’s Procuratorate supported the protest.
During the period of reviewing and supporting the protest, the People’s Procuratorate of Guangdong Province further supplemented and improved the relevant evidence around the focus of the dispute: First, it checked the relationship and economic exchanges between Liu and Zhou, and further found out that Zhou did not have the economic conditions to buy 1 kg of methamphetamine, and there was no motive to frame Liu; Second, by combing Liu’s social relations and five drug-related crimes, it is found that four drug trafficking cases, including Ling and Liu’s drug family, are both in Chen Mou, and Chen Mou’s identity information is also found. It was reported that the Supreme People’s Procuratorate coordinated the Ministry of Public Security and successfully captured Chen Mou. Subsequently, an investigation was conducted around Chen Mou, which confirmed that Chen Mou had never done bird’s nest business and was suspected of engaging in drug-related criminal activities for a long time. However, Liu’s mobile phone detained on file had 28 calls and 26 short messages with Chen Mou from December 5 to 21, 2015 before the incident.
(two) the protest opinions and reasons
The procuratorate of Guangdong Province believes that the court of first instance unilaterally accepted Liu’s unreasonable excuse when it found the ownership of the drugs involved in the vehicle driven by the defendant Liu, and then unreasonably suspected that the drugs were owned by the witness Zhou, and found that the evidence that Liu constituted the crime of drug trafficking did not form a complete proof system, and reasonable doubt could not be ruled out. Therefore, the judgment of declaring Liu innocent was indeed wrong. The problems and flaws in obtaining evidence in the investigation of this case have not cut off the evidence chain. Liu’s innocent plea is contradictory to other evidence in the case. The evidence in the whole case is enough to prove Liu’s subjective and objective behavior of selling drugs. The specific reasons are as follows:
1. "Reasonable doubt" is not reasonable. The defense of the defendant Liu Moumou obviously contradicts other evidence in the case, and it is indeed wrong for the people’s court to make an acquittal on the grounds of "reasonable doubt". Liu argued that he operated the bird’s nest business. He went to Shanwei to buy smuggled bird’s nest the day before the incident, but he could not verify and log in his Wechat business account, nor could he provide the contact information of offline Wechat business or customers. Liu moumou argued that his trading with Zhou was a bird’s nest, but the words of both sides were obscure. SMS and WeChat recorded a lot of jargon and slang suspected of drug trading, which was inconsistent with the trading habits of bird’s nest; Liu Moumou said that driving with "goods" for sale, but the "goods" in the car are only drugs without bird’s nest; Zhou did not have the economic conditions to buy 1 kg of methamphetamine, and Liu argued that drugs were owned by Zhou without other evidence. The problems existing in the investigation of this case and the changes of some testimonies do not affect the authenticity and objectivity of the evidence, and have not cut off the evidence chain of the whole case. Witness Zhou said in the report phone that she knew the reported person Liu Moumou, and she was unwilling to provide her personal information and identification for fear of being retaliated, and changed some testimonies in court during the trial, but she has been steadily stating the basic facts of this case, so we can’t deny the evidential effect of her testimony.
2. The evidence in the case is enough to prove that Liu has the subjective intention and objective behavior of selling drugs. Evidence such as WeChat voice, voiceprint identification, call list and bank transaction flow in the defendant Liu’s mobile phone, as well as traffic surveillance video screenshots of Liu’s driving to and from eastern Guangdong, submitted by the procuratorate when filing a public prosecution, are enough to confirm that Liu bought drugs from criminals in eastern Guangdong and prepared to sell them through Zhou on the day of the incident. From a large number of drug trade jargon and code words stored in Liu’s mobile phone, it can be seen that he has been engaged in drug trade for at least one year, and the day before the incident, others other than Zhou were preparing to buy drugs from Liu. Based on the original evidence, Chen Mou’s guilty confession, which was supplemented during the protest, and Zhou’s reasons for the change of some testimonies, it is enough to confirm the fact that the drug involved was bought from Chen Mou in Lufeng City and brought back to Guangzhou for sale before Liu’s murder.
It should be noted that this case has been heard in the third-level court for seven times, and the People’s Procuratorate has presented new evidence to Liu Moumou and his defenders before the trial, fully listened to the opinions of the defense, and fully guaranteed the litigation rights of the parties in accordance with the law. In view of the clear facts of this case and the true and sufficient evidence, the People’s Procuratorate of Guangdong Province suggested that the Provincial Higher People’s Court change the defendant’s guilt according to law.
(three) the results of the protest and the follow-up of the case
On June 7, 2019, the Guangdong Higher People’s Court made a final judgment according to law after trial, adopted the protest opinion and sentenced Liu to life imprisonment for drug trafficking.
After the verdict came into effect, Liu made an appointment with the prosecutor, pleaded guilty and repented, voluntarily admitted all the criminal facts accused by the people’s procuratorate, and named Chen Mou. On July 6, 2020, Chen Mou was sentenced to death by the Guangzhou Intermediate People’s Court for selling 22 kilograms of methamphetamine. Chen Mou did not appeal and was executed in March 2023. Four people, including Ling Mou, who bought 21 kilograms of methamphetamine from Chen Mou, were sentenced to death and life imprisonment by the Guangzhou Intermediate People’s Court for drug trafficking, and the judgment has come into effect.
[Guiding significance]
(a) the correct application of the rules of evidence to exclude reasonable doubt.Reasonable doubt refers to the doubt based on evidence, logic and empirical rules, that is, there is a realistic possibility that the defendant is innocent in a case. In handling criminal cases, we should comprehensively review the evidence of the whole case, consider all factors, exclude reasonable doubts about the facts identified and draw unique conclusions. The people’s procuratorate should carefully examine the reasons for the court’s acquittal according to the evidence of the case if the "reasonable doubt" is improperly applied to make the acquittal. If it is really necessary, it is necessary to supplement and improve the evidence in order to accurately eliminate "reasonable doubts" and fully support the protest opinions and reasons. In view of the defendant’s innocence defense, we should pay attention to whether the defense is reasonable and whether there is contradiction with the facts and evidence of the case. For the case that the witness changes his testimony, we should make a comprehensive judgment based on the reasons for the witness’s change, the witness’s previous testimony and the confirmation of other evidence in the case. After comprehensive review, if there is a "reasonable doubt" in the case, we should adhere to the principle of no doubt and make a conclusion of innocence according to law; If the defendant’s defense contradicts the evidence of the whole case, or it is not supported by objective evidence, and it is inconsistent with the rules of experience and logic, it should be considered as "reasonable doubt".
(two) for drug-related crime cases in which the perpetrator does not plead guilty, it is necessary to comprehensively judge the subjective "knowing" of the drug-related crime according to the evidence on file and the actual situation of the case.When handling a case, the people’s procuratorate judges whether the actor "knows or should know that the object of the act is drugs", and should comprehensively consider various objective and actual situations in the case, and make a comprehensive analysis and judgment based on the evidence of the process, behavior mode, situation and environment when the drug was seized, combined with the age, experience, intelligence and knowledge of the actor. And the factual basis used as the premise of the presumption that the actor "knows or should know that the object of the act is drugs" must be proved by conclusive evidence.
(3) The people’s procuratorate may suggest that the people’s court directly revise the sentence in accordance with the law if the protest case is not beyond the scope of prosecution and accusation after finding out the facts.According to Article 236 of the Criminal Procedure Law of People’s Republic of China (PRC), if the facts of the original judgment are unclear or the evidence is insufficient, the people’s court of second instance may revise the judgment or send it back for retrial according to law after ascertaining the facts. In judicial practice, if the evidence supplemented by the people’s procuratorate after the protest is reinforced, the facts of the case are not beyond the scope of the prosecution, and the case has been tried many times, the relationship between the principle of litigation economy and the protection of human rights should be comprehensively considered, and it is suggested that the people’s court revise the judgment according to law after finding out the facts of the case.
[Relevant regulations]
Article 347 of the Criminal Law of People’s Republic of China (PRC)
Articles 55, 228, 232 and 236 of the Criminal Procedure Law of People’s Republic of China (PRC) (revised in 2018).
Articles 582, 584 and 589 of the Rules of Criminal Procedure of the People’s Procuratorate (Trial) (implemented in January 2013) (now articles 583, 584 and 589 of the Rules of Criminal Procedure of the People’s Procuratorate implemented in 2019)
Procuratorate handling the case: Guangdong Provincial People’s Procuratorate People’s Procuratorate of Guangzhou City, Guangdong Province
Prosecutor in charge: He Xiongwei   Chen Shufen  
Case writer: He Xiongwei   I ring   Shelly
Li’s second-instance protest case of robbery, rape and forced indecency
(InspectionNo. 180th)
[Keywords:]
Protest in second instance   Examination and application of indirect evidence   Electronic data   Discover a new criminal fact   Supplementary prosecution
【 gist 】
For protest cases in which there are disputes about ascertaining the facts and applying the law, the people’s procuratorate should comprehensively collect, examine and judge and comprehensively use the evidence, make full use of technical means to collect electronic data, and pay attention to improving the evidence chain by using indirect evidence to ensure the accurate determination of the criminal facts and the application of the law. If the clues of missing crimes are found in the process of handling the protest case of the second instance, they shall be promptly transferred to the public security organ for investigation. If it is verified, it is suggested that the people’s court send it back for retrial, and the people’s procuratorate will supplement the prosecution on the new criminal facts to protect the defendant’s right to appeal according to law. The people’s procuratorate should strengthen the reverse examination, and find and improve the problems and deficiencies in the examination, arrest and prosecution by handling protest cases.
[Basic case]
Defendant Li, male, born in November 1986, is unemployed.
At about 16: 00 on June 26, 2016, the victim Rong reported to a police station in Heping Branch of Tianjin Public Security Bureau that Li had stolen his Alipay account of 4,000 yuan. After investigation, the public security organs found that Li met many women through online social platforms from March to June 2016. At 18 o’clock on June 24, 2016, Li met the victim Rongmou near a shopping mall. At 22 o’clock on the same day, he took him to the hotel room booked by Li, and then when Rongmou fell asleep, he used his fingerprint to unlock his mobile phone and steal RMB4,000 from Rongmou’s Alipay account. Li also used the same method to steal the victims from Yu, Chang, 500 yuan and 1000 yuan in the same hotel in March and May of the same year. On July 13, Li was arrested and brought to justice. On October 18, the public security organ transferred Li to the People’s Procuratorate of Heping District, Tianjin for review and prosecution on suspicion of theft.
On April 25, 2017, the People’s Procuratorate of Heping District, Tianjin filed a public prosecution against Li for robbery, accusing Li of meeting the victim Rong on June 24, 2016. During the meal, he put an unknown substance into the drink while he was unprepared, and took it to the hotel room at 22 o’clock that day. In the meantime, when Li Rong was asleep, he used his fingerprint to unlock, opened his mobile phone and transferred 4,000 yuan in his Alipay account to his Alipay account. Li also used the same method to rob the victims in 500 yuan and 1000 yuan in March and May of the same year.
On March 20, 2018, the People’s Court of Heping District of Tianjin made a first-instance judgment, and only found that Li secretly stole the criminal fact of the victim Rongmou of 4,000 yuan, and believed that Li was basically able to truthfully confess the criminal facts of theft, return the stolen money, and lightly sentence Li to one year and eleven months in prison and fined him 4,000 yuan.
[Procuratorial organ’s performance process]
(a) to put forward and support the protest
The People’s Procuratorate of Heping District, Tianjin believes that the first-instance judgment found that the defendant Li was guilty of theft because the facts were wrong, the applicable law was improper, and the sentence was extremely light. Li’s behavior met the constitutive requirements of robbery and should be recognized as robbery. On March 30, 2018, the People’s Procuratorate of Heping District of Tianjin filed a protest with the Tianjin No.1 Intermediate People’s Court and reported it to the No.1 Branch of Tianjin People’s Procuratorate to support the protest. On September 28, 2018, the first branch of Tianjin People’s Procuratorate supported the protest.
During the period of reviewing and supporting the protest, the First Branch of Tianjin People’s Procuratorate, in view of the differences between the prosecution and the law in the first instance, especially the view that the proof system constructed by indirect evidence can’t rule out reasonable doubt in the absence of direct evidence in this case, organized technical force to crack the encrypted partition of Li’s computer hard disk that had never been cracked in the first instance, and found that Li was also suspected of committing rape, forced indecency and other robbery crimes between 2013 and June 2016, so it was transferred to the public security organs for further investigation. Through a large number of indecent photos and videos, the identity information of 15 potential victims was determined, and then it was found that many women were raped, molested and photographed without knowing it. These victims don’t know each other, but they are basically similar to Li’s experience of communication and infringement, which fully proves that Li is in a state of "I don’t know how to resist, I can’t resist" after being given drugs. At the same time, change the investigation ideas and find ways and means for Li to obtain psychotropic drugs. By collecting the records of Li’s social security card, it was found that he prescribed psychotropic drugs on the grounds of insomnia, depression and epilepsy for many times, and collected evidence to confirm the objective fact that he had never suffered from mental diseases.
(two) the protest opinions and reasons
The Tianjin procuratorate believes that the court of first instance "cannot prove that the defendant Li put an unknown substance into the victim’s drink; It cannot be proved that there are unknown substances in the blood and urine of the victim that can cause coma; It cannot be proved that the victim was robbed of property in the state of "I don’t know how to resist and can’t resist"; It cannot be ruled out that there is a reasonable excuse for legitimate economic exchanges between Li and the victim, and the name of robbery accused by the procuratorate cannot be established. The key to distinguish theft from robbery in this case lies in whether the defendant uses other methods than violence or coercion to make the victim unable to resist and rob property. The evidence in the case can prove that the defendant Li constituted robbery rather than theft. Li used the usual means of putting drugs into coma in a premeditated and prepared way, and repeatedly committed robbery, rape and forced indecent assault. The specific reasons are as follows:
1. The evidence in the case can prove that the defendant Li put a drug that can cause coma in the drink. The hotel surveillance video, the victim’s statement and the witness’s testimony confirm each other, confirming that Li went out to buy drinks for the victim before or during the meal; Many defendants’ classmates, friends and inmates confirmed that Li had "shown off" the criminal facts of drugging people and having sex with them; The social security card purchase record and witness testimony confirmed that Li bought psychotropic drugs without suffering from related diseases.
2. The existing evidence can prove that there is no normal economic exchange between the victim and Li. Judging from the transfer amount, several victims confirmed that there was a contradiction between the transfer amount of Alipay and the AA consumption amount argued by Li; Judging from the transfer time, the victim’s certificate really doesn’t need cash during this period, and there is no need to exchange cash from Li after the transfer; Judging from the state at the time of transfer, many victims stated that they were dizzy and unconscious at that time, and then they were taken to a hotel or residence to fall asleep. During the transfer period, they were in a coma, and it was impossible to actively transfer money to Li, and some victims did not find out the fact that they had transferred money to Li until the public security personnel asked them.
3. The evidence on file has formed a complete chain of evidence. The victims are highly similar to the experiences and violations in the process of interacting with Li. After drinking the water or drinks provided by Li, they all went from dizziness to unconsciousness to complete coma, and the victims did not know each other. This special experience is no accident; Li’s mobile phone search browsing records confirmed that he had inquired many times about information such as "Is it suspected that there is no evidence to call the police?" "Is there monitoring on the fifth floor of a fashion plaza and the cinema?" "What is the performance of women being drugged?" After committing the crime, in order to avoid legal sanctions, Li also consulted a lawyer online on the legal consequences of "unauthorized Alipay transfer behavior" under the guise of the victim; Many victims confirmed that Li had persuaded the victim to change his mobile phone payment password to fingerprint payment during his interaction or when he met for dinner; The victim stated that he was in a coma at the time of the crime, which was consistent with the situation shown in the photos and videos on file, and mutually confirmed with the pharmacology and efficacy of drugs confirmed by expert opinions. It was nearly 48 hours when the victim Rong reported the case, and it was reasonable that no drug components were extracted from his body due to drug metabolism.
To sum up, the evidence in the whole case proves that the defendant Li met young women specially through the online social platform, and the target of the crime was not specific, and at the same time, he interacted with several victims. During the interaction, he persuaded the other party to change the screen saver of the mobile phone to unlock the fingerprint, and bought psychotropic drugs in advance, booked a hotel room, observed the payment method of the victim’s mobile phone after meeting, inquired about the payment password, put psychotropic drugs in the drink, and then took the unconscious victim to the hotel room after drinking the drink to commit the crime.
(3) remanding for retrial and supplementary prosecution
On September 29, 2018, Tianjin No.1 Intermediate People’s Court adopted the opinions of the procuratorate, ruled that the original judgment was revoked and sent back for retrial. On May 31, 2019, the People’s Procuratorate of Heping District of Tianjin filed a supplementary prosecution, accusing the defendant Li of robbing the victim’s Wu Mou bank card of 1,500 yuan by putting psychotropic substances in the drink from 2013 to 2016; Forced to have sex with four people, including Li Moumou, Liu Mou, Chang Mou and Yu Mou, and forced to defame Yang.
(four) the results of the protest and the follow-up situation.
On December 20, 2019, the People’s Court of Heping District, Tianjin adopted the protest opinions and accusation opinions of the People’s Procuratorate after trial, and found that the defendant Li was guilty of robbery, sentenced to 15 years in prison, deprived of political rights for two years, and fined 200,000 yuan; He was convicted of rape and sentenced to 15 years in prison and deprived of political rights for two years; He was convicted of compulsory indecency and sentenced to three years’ imprisonment. He was sentenced to 20 years’ imprisonment, deprived of political rights for four years and fined 200,000 yuan. After the verdict was pronounced in the first instance, Li appealed. The second instance ruling of Tianjin No.1 Intermediate People’s Court dismissed the appeal and upheld the original judgment.
The first branch of Tianjin People’s Procuratorate issued procuratorial suggestions to the medical and health authorities according to the management loopholes of Li’s fraudulent purchase of psychotropic drugs, promoted the medical and health authorities to carry out special rectification of drug use management, and issued regulations on the management of psychotropic drugs; Communicate and negotiate with the Municipal Women’s Federation and invite professional psychological counselors from the Women’s Legal Psychological Help Center to provide psychological counseling to the victimized women; Focusing on the problems existing in the process of prosecuting and accusing crimes in this case, we will establish a review and prosecution reporting mechanism for major and complicated criminal cases and a consultation mechanism for criminal protest cases to further improve, standardize and improve the quality of handling cases and enhance the effectiveness of handling cases.
[Guiding significance]
(a) pay attention to the collection of objective evidence, including electronic data, make full use of indirect evidence, and integrate other evidence on file to form a complete chain of evidence to prove the facts of the case.For those who determine a crime by indirect evidence, it is necessary to comprehensively verify the evidence in the case, use evidence reasoning to conform to logic and experience, eliminate reasonable doubt according to the evidence, and form a complete chain of evidence in the whole case. For each piece of indirect evidence, we must confirm its authenticity and legality, fully explore the relevance between evidence and facts, and between evidence and evidence, and enhance the probative force of indirect evidence. In the process of collecting and fixing evidence, we should pay attention to collecting and using electronic data to prove crimes, so as to realize the efficiency of scientific and technological strong inspection in perfecting the evidence chain, prosecuting and accusing the crimes, and proving crimes.
(2) In the course of handling the protest case of second instance, if new criminal facts are discovered, the people’s procuratorate shall transfer them to the public security organ for investigation, and if it is verified, it is suggested that the people’s court send them back for retrial, and the people’s procuratorate shall make supplementary prosecution.In the process of protest in the second instance, if the people’s procuratorate finds that the facts of the original judgment are unclear and there are new criminal facts, it shall request the public security organ to investigate and transfer the case for prosecution. In order to fully protect the defendant’s right of appeal against the criminal facts of supplementary prosecution, the people’s procuratorate should suggest that the court of second instance rule to revoke the original judgment and send it back for retrial. After the investigation by the public security organ is completed and transferred for review and prosecution, the people’s procuratorate will make supplementary prosecution, so as to comprehensively, accurately and forcefully crack down on crimes and protect the defendant’s right of appeal according to law.
(three) in handling protest cases, we should strengthen the reverse examination, find and improve the problems and shortcomings in the work of arresting and prosecuting.Facts and evidence are the basis and premise of running every case well with high quality and efficiency. Some protest cases will expose the problems existing in the process of examination, arrest and prosecution, such as lax examination, lax control and poor proof. The people’s procuratorate should handle protest cases, strengthen the reverse examination, timely analyze and study the causes of these problems, improve, standardize and improve them, enhance the ability to handle cases and ensure the quality of handling cases.
[Relevant regulations]
Articles 236, 237, 263 and 264 of the Criminal Law of People’s Republic of China (PRC).
Articles 228, 232 and 236 of the Criminal Procedure Law of People’s Republic of China (PRC) (revised in 2018)
Articles 368, 582, 584 and 589 of the Rules of Criminal Procedure of the People’s Procuratorate (Trial) (implemented in January 2013) (now articles 334, 583, 584 and 589 of the Rules of Criminal Procedure of the People’s Procuratorate implemented in 2019)
Articles 3 and 11 of the Provisions of the People’s Procuratorate on Procuratorial Suggestions (implemented in 2019)
Procuratorate handling the case: No.1 Branch of Tianjin People’s Procuratorate Tianjin Heping District People’s Procuratorate
Prosecutor in charge: Qi Yingping   Chen Bo   Li Yanling  
Case writer: Du Guowei   Bai chunan   Lu Xu
Meng Moumou and others organized, led and participated in the underworld.Retrial protest case of crimes such as nature organization and trouble-seeking.
(InspectionNo. 181st)
[Keywords:]
Retrial protest   The ruling allows the withdrawal of the appeal   Self-investigation   Supplementary prosecution   Strengthen supervision and performance of duties
【 gist 】
If the defendant refuses to accept the judgment of first instance, and after the appeal expires, he applies to withdraw the appeal and the people’s court decides to allow it, if the people’s procuratorate thinks that the judgment of first instance is really wrong, the people’s procuratorate at the same level of the people’s court that made the decision to allow the withdrawal of the appeal has the right to lodge a protest in accordance with the procedure of trial supervision. After the protest, the people’s court ordered the case to be tried in accordance with the procedure of first instance. If the people’s procuratorate found that the original case omitted the criminal facts, it should supplement the prosecution; If it is found that the suspects in the same case are missing, they should be prosecuted additionally, and it is suggested that the people’s court should try the cases ordered for retrial together with the cases supplemented and prosecuted additionally, and punish several crimes concurrently. People’s procuratorates should strengthen supervision in handling cases, make full use of the combination of self-investigation and supplementary investigation by investigation organs (departments), strengthen the connection between investigation, prosecution and supervision, dig deep into the omission of crimes and offenders, promote the governance of the source of complaints, and continue to make supervision and handling cases thorough and practical.
[Basic case]
Defendant Meng Moumou, male, born in January 1971, is the owner of a sand mining field.
Defendant Zhang, male, born in October 1989, is unemployed and an active participant in Meng’s underworld criminal group.
The basic information of the remaining 10 defendants is brief.
From 2014 to May 2016, the defendant Meng Moumou and others rented other people’s fish ponds in the future sub-section of Weishan Lake waters (sand mining area, with sand mining license required) to dig the waterway privately, and used sand pump boats to illegally sand more than 290,000 tons, with a value of more than 8 million yuan; From November 2014 to May 2016, the defendant Meng Moumou and others opened an illegal sand mining area in Xiang Liu Zhuang section of Nansi Lake waters, knowing that the waters of Nansi Lake were prohibited by the state. The total amount of illegal sand mining was more than 230,000 tons, with a value of more than 7.49 million yuan.
On March 3, 2014, the defendant Meng Moumou and others prevented the law enforcement officers of the fishery station from seizing two barrels of diesel oil and some maintenance tools used for illegal sand mining on the sand mining boat, blocked the law enforcement vehicles in front and back with cars, verbally abused and threatened the law enforcement officers, and snatched the diesel oil and maintenance tools that were seized according to law. On April 3, 2014, the defendant Meng Moumou and others stopped the police car in the waters of Zhanglou, Weishan County, and threatened the law enforcement police with words. The whole process lasted for about 10 minutes. Later, Meng Moumou and others saw that the purpose could not be achieved and left. On March 12, 2015, the defendant Zhang and others drove a number of motorboats into a law enforcement patrol boat in the waters of Zhanglou, Weishan Lake, and quickly circled around the law enforcement boat, forming huge waves that prevented the law enforcement boat from approaching the sand mining boat. Zhang also drove a motorboat into the law enforcement boat, causing the law enforcement boat to enter the water and throwing stones and mud at the law enforcement boat.
On February 26, 2016, the defendants Meng Moumou and others drove speedboats to block Han Moumou and Li Moumou who were fishing in Zhanglou Lake in Weishan Lake waters, and beat them with bamboo poles on a mound on the lake, causing minor injuries to Han Moumou and Li Moumou.
On December 7, 2016, the People’s Procuratorate of Peixian County, Xuzhou City, Jiangsu Province filed a public prosecution against 12 people, including Meng Moumou, for the crimes of illegal mining, obstruction of official duties and provocation. The Peixian People’s Court held that the crime of illegal mining accused by the procuratorate did not constitute a heavier provision for the forbidden mining area; Only one of the three crimes against official duties can be identified; If the nature of the crime of stirring up trouble is improper, it should be regarded as intentional injury. On June 26, 2017, the Peixian People’s Court sentenced 12 people, including Meng Moumou, to fixed-term imprisonment ranging from ten months to four years and ten months for crimes of illegal mining, obstruction of official duties and intentional injury. After the verdict was pronounced in the first instance, two defendants appealed and then applied to withdraw their appeals. On February 9, 2018, Xuzhou Intermediate People’s Court ruled that the appeal was allowed to be withdrawn, and the judgment of the first instance took effect from the date of delivery of the ruling.
[Procuratorial organ’s performance process]
(1) lodge a protest
When reviewing the ruling made by the people’s court at the same level, the Xuzhou Municipal People’s Procuratorate found that the original judgment was wrong in fact finding and law application, and the sentence was extremely light, and there were major clues of missing criminal facts and accomplices. On March 15, 2018, a protest was filed with the Xuzhou Intermediate People’s Court in accordance with the trial supervision procedure.
(two) the protest opinions and reasons
The Xuzhou Municipal People’s Procuratorate believes that the fact-finding and law application of the original judgment were wrong, and the sentencing was extremely light. The specific reasons are as follows:
1. The original judgment did not determine that the plot of the forbidden mining area was improper. According to law, the administrative organs declared Weishan Lake waters as a forbidden mining area, and carried out law enforcement inspections many times. In the same period, the effective judgments of many similar cases also identified the area as a forbidden mining area.
2. The original judgment did not find that some facts of the crime of obstructing official duties were improper. Witness testimony, law enforcement recorder and statements of law enforcement personnel can prove that Meng Moumou and others have repeatedly resisted law enforcement, rallied many people to threaten and insult law enforcement personnel, forced law enforcement vehicles to stop by car, destroyed law enforcement vessels, and robbed seized items, which led to the failure of law enforcement activities to proceed normally.
3. The original judgment changed the nature of seeking trouble. The victims Han Moumou and Li Moumou stated that when they went to the lake to catch fish on the day of the incident, they were surrounded and beaten by Meng Moumou and others, forced to kneel down and be videotaped. The containment and beating behavior of Meng Moumou and others cannot be regarded as intentional injury because of disputes between the two sides. Meng Moumou and others, in order to seek illegal interests or form illegal influence, organized illegal demarcation of sand mining in waters, chasing, intercepting and beating fishermen, causing minor injuries, seriously undermining social order, and the circumstances are bad, which should be considered as the crime of seeking trouble.
On September 21, 2018, Xuzhou Intermediate People’s Court ordered Pei County People’s Court to retry. On April 1, 2019, the Xuzhou Intermediate People’s Court ruled that the original judgment was revoked and the Yunlong District People’s Court was appointed to try the case in accordance with the procedure of first instance.
(3) Procuratorial organs conduct investigations on their own.
Xuzhou People’s Procuratorate organized a special force to collect related cases. After examination, it was found that there were more than 20 members of the illegal mining gang headed by Meng Moumou. Many cases have been examined and handled by the courts in Shandong and Jiangsu. In addition, many criminal facts and clues have not been verified, and there are still problems such as public officials’ shareholding in business. It is likely that it is a crime committed by underworld organizations in the field of natural resources, so self-investigation work has been carried out.
1. Visited 56 relevant witnesses such as administrative law enforcement personnel and surrounding people, and collected 32 pieces of evidence, such as notices prohibiting illegal sand mining, law enforcement videos of fishery administration departments, failure to effectively handle alarm records, injury identification, etc., which reinforced the evidence that Weishan Lake waters are prohibited from mining areas and Meng Moumou and others are obstructing official crimes.
2. Around the gang’s violent resistance to law enforcement, competition for sand mining areas, organizational structure level, and "umbrella" clues, it was verified that Meng Moumou and others used organizational power and influence to forcibly buy fishermen’s fish ponds, competed with other illegal sand mining forces for sites, gathered people to fight, wooed law enforcement officers and grassroots organizations, beat and abused villagers at will, and illegally fished aquatic products during the fishing ban.
3. Inform the public security organs of the case, supervise and put on record the criminal acts of Meng Moumou and others such as organizing, leading, participating in underworld organizations and bribing non-state staff, and request the investigation and transfer of the missing crimes such as illegal mining and trouble-making, involving a total of 16 missing offenders, 7 new charges and 18 new criminal facts.
4. Dig deep into duty crimes and transfer clues of violation of law and discipline to the Commission for Discipline Inspection.
(four) the results of the referee and the investigation of the clues of duty crimes.
In June 2019, the People’s Procuratorate of Yunlong District made supplementary and additional prosecutions against 28 people, including Meng Moumou, for allegedly organizing, leading and participating in underworld organizations, robbery, forced trading, affray, illegal fishing of aquatic products, bribery and bribery of non-state staff. On September 29, 2020, the Yunlong District People’s Court adopted the protest opinions and accusation opinions of the People’s Procuratorate, and sentenced the defendant Meng Moumou to 19 years’ imprisonment for organizing, leading and participating in organized crimes of underworld nature, robbery, illegal mining, forced trading, affray, provocation, obstruction of official duties, illegal fishing of aquatic products, bribery and bribery of non-state staff. After the verdict was pronounced in the first instance, Meng Moumou and others appealed. On March 15, 2021, Xuzhou Intermediate People’s Court ruled that the appeal was dismissed and the original judgment was upheld.
The organization’s "protective umbrella" Pei County Public Security Bureau’s former policemen Zhang and Zheng, and Pei County Land and Resources Bureau’s former head of the mine management department Li and other five people were sentenced to five years and six months to one year and six months respectively for accepting bribes and bending the law for selfish ends. In addition, 11 public officials were given disciplinary sanctions.
(five) to actively perform their duties according to law, and promote the source of litigation.
During the handling of the case, the People’s Procuratorate of Yunlong District filed a criminal incidental civil public interest lawsuit against Meng Moumou and others for illegal mining and illegal fishing of aquatic products. On April 6, 2021, Yunlong District People’s Court ruled that Meng Moumou and others should bear the ecological environment restoration cost of 4.51 million yuan. At the same time, in response to the grassroots governance problems reflected in the case, the Yunlong District People’s Procuratorate communicated with the Pei County People’s Procuratorate and issued procuratorial suggestions to promote government functional departments to carry out rectification from strengthening clean government education and grassroots organization construction; Pei County People’s Procuratorate led the public security, water conservancy, environmental protection, Nansihu Lower Lake Water Conservancy Administration and other units to jointly hold a "symposium on cracking down on environmental crimes and protecting Weishan Lake ecology", established a special struggle cooperation mechanism with Weishan County People’s Procuratorate of Shandong Province, and carried out Pei Wei’s "Nansihu Nature Reserve Ecological Environment Protection and Public Interest Litigation Special Activities" to promote comprehensive management around Weishan Lake by case handling.
[Guiding significance]
(1) If, after the court has ruled that the appeal is allowed to be withdrawn, the effective judgment of first instance is indeed wrong and a protest should be lodged, the people’s procuratorate at the same level of the people’s court that made the ruling has the right to lodge a protest in accordance with the procedure of trial supervision; After the court orders a retrial, if the people’s procuratorate finds that the crime has been omitted, it shall supplement the additional prosecution.According to "the Supreme People’s Court on the application"Interpretation of the Criminal Procedure Law of People’s Republic of China (PRC), if the appeal is requested to be withdrawn after the expiration of the appeal period, after the court of second instance has made a ruling to allow the defendant to withdraw the appeal after examination, the judgment and ruling of first instance will take effect from the date when the ruling to allow the withdrawal of the appeal is served on the appellant. A legally effective judgment made by the court on a case is a judgment of first instance. If the people’s procuratorate at the next higher level thinks that the judgment is really wrong, it has the right to lodge a protest in accordance with the trial supervision procedure. After the protest, the people’s court ordered a retrial in accordance with the procedure of first instance, and if the people’s procuratorate found that the original case omitted criminal facts, it should supplement the prosecution; If it is found that the suspects in the same case are missing, they should be prosecuted additionally, and it is suggested that the people’s court should try the cases ordered for retrial together with the cases supplemented and prosecuted additionally, and punish several crimes concurrently.
(two) the procuratorial organs should strengthen the supervision consciousness, give full play to the supervision function, strengthen their own investigation, and actively guide the investigation and evidence collection.The people’s procuratorate shall, on the principle of necessity, appropriateness and effectiveness, carry out its own investigation on the clues of trial supervision of criminals who have different judgments and missed crimes in the same case. Flexible use of a variety of evidence collection methods, through on-the-spot investigation, collecting documentary evidence, visiting and questioning witnesses, etc., to enhance the experience of handling cases and improve the accusation evidence system; For cases with problems in facts and evidence, the procuratorial organ shall promptly return them to the investigation organ to carry out supplementary investigation, set out a detailed outline of supplementary investigation, and urge them to supplement and improve the evidence in time. Strengthen the cooperation between prosecutors and police and the connection between supervision and inspection, inform and judge the case, accurately list the supplementary investigation outline, fully communicate with investigators and investigators to verify the main points, dig deep into and thoroughly investigate the crimes and crimes, and comprehensively and accurately crack down on crimes.
(3) People’s procuratorates shall perform their duties in a dynamic and integrated way on a case-by-case basis, so as to promote the governance of the source of complaints.In the process of handling cases, people’s procuratorates should fully and thoroughly perform their legal supervision duties, strengthen the supervision of filing cases, investigation activities and trials, dig deep into missing crimes and offenders, supervise and correct wrong judgments, and punish them as crimes; It is necessary to strengthen the active performance of duties, extend the function of procuratorial handling cases to social governance, and promote the improvement of rules and regulations in related industries and fields by putting forward procuratorial suggestions, carrying out judicial assistance, doing a good job in popularizing the law, carrying out regional alliances, and cooperating with departments, and promoting the prevention and control at the source; For criminal acts in the field of environmental resources, we should combine our efforts, simultaneously file criminal incidental civil public interest litigation, help protect the ecological environment, achieve equal emphasis on "punishment" and "governance", and serve the overall situation of economic and social development.
[Relevant regulations]
Articles 277, 293 and 343rd of the Criminal Law of People’s Republic of China (PRC).
Articles 113 and 254 of the Criminal Procedure Law of People’s Republic of China (PRC) (revised in 2018)
Article 308 of the Interpretation of the Supreme People’s Court on the Application of the Criminal Procedure Law of People’s Republic of China (PRC) (implemented in January 2013) (now article 386 of the Interpretation of the Supreme People’s Court on the Application of the Criminal Procedure Law of People’s Republic of China (PRC), implemented in 2021).
Articles 3 and 11 of the Provisions of the People’s Procuratorate on Procuratorial Suggestions (implemented in 2019)
Procuratorate handling the case: Xuzhou People’s Procuratorate, Jiangsu Province Pei County People’s Procuratorate, Xuzhou City, Jiangsu Province Yunlong District People’s Procuratorate of Xuzhou City, Jiangsu Province
Prosecutor in charge: Rao Bendong   Zhang defeng  
Case writer: Guilin Hu   Liang Xiaoyong
Song moumou’s protest case of dangerous driving in the second instance and retrial
(InspectionNo. 182nd)
[Keywords:]
Continue to protest   Crime of dangerous driving   Internal supervision and restriction of non-prosecution   Examination and judgment of judicial expertise
【 gist 】
The people’s procuratorate shall standardize the exercise of the right of no appeal in accordance with the law, strengthen the internal supervision and restriction of the decision of no appeal through filing and examination, and strive to improve the level of examination and prosecution and the quality of handling cases. When there are two or more judicial expertise opinions on the same specialized issue, and the conclusions are inconsistent, prosecutors should pay attention to the substantive review from the aspects of the compliance of the appraisal subject, the legality of the appraisal procedure, the scientificity of the appraisal method, the sufficiency of the appraisal materials and the rationality of the analysis and demonstration. In order to ensure the protest effect, the people’s procuratorate can further reinforce the evidence through its own investigation, fully support the opinions and reasons of the protest, and fully perform the duties of criminal trial supervision and safeguard judicial justice through continuous protest and continuous supervision.
[Basic case]
Defendant Song Moumou, male, born in February 1980, was a former clerk of a bureau in Haikou City, Hainan Province.
At 20: 22 on November 16, 2015, the defendant Song Moumou drove from west to east and turned right from Binhai Avenue in Haikou City into Changyi Road, and drove to the east gate of Changyi New Village to stop. Song Moumou got off the car and went to sleep on the sidewalk across the road. This process was seen by Zhang Moumou, an armed police soldier who was standing guard at the east gate of Changyi New Village. Zhang Moumou reported it to Wen Moumou, the platoon leader, and Chen Moumou, the squad leader. They immediately rushed to the scene to check. At that time, the urban management team patrolling the road called the police and the traffic police arrived at the scene to deal with it. After blood test, the alcohol concentration of Song’s blood sample was 213mg/100ml. At about 19: 40 on the same day, the victim Zhang was hit by a vehicle driving an electric car at the intersection of Chang ‘an Road, Binhai Avenue, Haikou City, and the vehicle escaped. After identification, the scattered objects at the scene of the accident were separated from the right side of the front car of Song Moumou, and it was confirmed that the right side of the front car collided with the rear tail of the electric car. The degree of injury of the victim Zhang was assessed as minor injury. On November 18th of the same year, Song Moumou was released on bail pending trial by Haikou Public Security Bureau on suspicion of dangerous driving. After the incident, Song’s wife, Wu Moumou, reached an agreement with the victim Zhang to compensate the victim for a one-time economic loss of 42,000 yuan. Zhang expressed his understanding to the owner.
After the investigation by the public security organs ended, on December 18th, 2015, Song was transferred to the People’s Procuratorate of xiuying district, Haikou for examination and prosecution on suspicion of dangerous driving. On June 3, 2016, the People’s Procuratorate of xiuying district decided not to prosecute Song because of unclear facts and insufficient evidence in this case, and reported it to the higher procuratorate of the Daily for filing and review. Haikou Municipal People’s Procuratorate reported to Hainan Provincial People’s Procuratorate after examination. After examination, the Hainan Provincial People’s Procuratorate found that the decision not to prosecute was wrong, and requested the xiuying district People’s Procuratorate to correct it. On March 23, 2017, the People’s Procuratorate of xiuying district revoked the original decision not to prosecute, and on the 29th of the same month, it prosecuted Song for dangerous driving. On September 28, 2017, the xiuying district People’s Court held that the facts of the prosecution’s accusation of Song’s crime of dangerous driving were unclear and the evidence was insufficient, and Song was acquitted.
[Procuratorial organ’s performance process]
(A) the first protest of second instance
On October 9, 2017, xiuying district People’s Procuratorate lodged a protest with Haikou Intermediate People’s Court. On November 18, 2017, Haikou Municipal People’s Procuratorate supported the protest.
In view of the court of first instance’s acquittal reason that "the evidence that the procuratorial organ proves that the vehicle involved was driven by Song Moumou is indirect evidence, which can’t form a complete chain of evidence, and the possibility that someone else was driving the vehicle in the meantime can’t be ruled out. Based on the existing evidence, reasonable doubt can’t be ruled out, and it’s difficult to draw a unique conclusion. The fact that the procuratorial organ accused the defendant of dangerous driving is unclear and the evidence is insufficient", Haikou City’s procuratorial organ believes that the court of first instance unilaterally accepted the defendant’s defense, which is indeed wrong, and the evidence on file is enough to prove that Song
1. There is sufficient evidence to prove that Song was the driver of the car at the time of the incident. The witness Zhang Moumou’s testimony in this case is objective and detailed, and the testimony has been consistent for many times, which can confirm that Song Moumou got off the car and there was only one person in the car at that time; The testimony of many witnesses, such as Wen Moumou, confirmed that Song Moumou was a drunk lying on the sidewalk beside the green belt; Documentary evidence such as the police’s journey, the arrival of the case and the "Road Traffic Accident Confirmation" also confirmed that Song Moumou was the driver of the car.
2. Song Moumou’s argument that the car is not his driving should not be accepted. Song argued that the car was driven by "Wei", but the identity information of "Wei" could not be verified, and his mobile phone number had been stopped. Song’s argument about how to know "Wei" and how they met and ate together by chance was inconsistent; Eyewitness Zhang Moumou confirmed that Song Moumou got off from the driver’s seat, and many witnesses confirmed that Song Moumou, who was drunk on the street, was unaccompanied and there was no one else in the car; Song Moumou confessed that he only drank a can of beer, but the blood alcohol concentration of Song Moumou was as high as 213mg/100ml nearly five hours after a can of beer. He was in a state of severe drunkenness and vomited a lot, which was unreasonable. Therefore, there is no other evidence to prove Song’s defense, and his defense reasons are beyond daily life experience, and the authenticity of the content is in doubt. Song’s defense should not be accepted.
At the same time, in order to fully explain the protest opinions and reasons, after the protest, the procuratorial organ extracted the surveillance video samples of the road section where the crime occurred and entrusted Guangdong Jiesite Audio-visual Data Judicial Appraisal Institute for appraisal. The appraisal opinion (hereinafter referred to as "Guangdong Jiesi Image Appraisal Opinion") is: "The surveillance video record sent for inspection: it appeared on’ Binhai Avenue-Changyi Road’ at 20: 20: 41 on November 16, 2015 and was monitored.
On December 28th, 2017, Haikou Intermediate People’s Court decided to send it back to xiuying district People’s Court for retrial. During the trial in xiuying district People’s Court, the defendant Song Moumou refused to accept the "Guangdong Jiesi Image Appraisal Opinion", and the xiuying district People’s Court entrusted the Judicial Appraisal Center of Southwest University of Political Science and Law and Guangdong Tianzheng Judicial Appraisal Center to re-identify the identity of the above video surveillance image with the defendant Song Moumou. On September 20 and 21, 2018, the Judicial Appraisal Center of Southwest University of Political Science and Law and Guangdong Tianzheng Judicial Appraisal Center made written opinions respectively, arguing that the faces of the samples were highly blurred and did not meet the requirements for video portrait appraisal. On December 4, 2018, the People’s Court of xiuying district held that there was insufficient evidence to prove that Song had committed the crime of dangerous driving, and reasonable doubt could not be ruled out, and Song was acquitted again.
(2) Protest in the second instance
On December 13, 2018, the People’s Procuratorate of xiuying district filed a protest for the second time. On May 17, 2019, Haikou Municipal People’s Procuratorate supported the protest.
In addition to the reasons put forward during the protest of the first trial, Haikou Municipal People’s Procuratorate put forward the following protest opinions and reasons:
1. It is improper for xiuying district People’s Court not to adopt the "Guangdong Jiesi Image Appraisal Opinion". The contents of "Guangdong Jiesi Image Appraisal Opinion" are objective and true, the appraisal procedure is legal, and the appraisal institution and appraiser are qualified, so it should be accepted as one of the evidences in this case. The first is to obtain the qualification certificates of the appraisal institutions and appraisers on file and the qualification certificates of two appraisers obtained by the investigation organs from the Guangdong Provincial Department of Justice, so as to confirm that the appraisal institutions and appraisers are qualified. Second, this appraisal opinion is not contradictory to the opinion of "it is a man" issued by the image appraisal center for the first time before, and it is issued according to different entrustment scope, but further confirms the facts of this case. And this evidence is only one of the evidences in this case, not the only one. Together with other evidences in the case, this evidence has reached a true and sufficient degree of proof and jointly proved the facts of this case. Third, the opinions of the Judicial Appraisal Center of Southwest University of Political Science and Law and the Judicial Appraisal Center of Guangdong Tianzheng, which were re-entrusted by the xiuying district People’s Court, that "the same sample cannot be appraised" cannot deny the objective truth of the "Guangdong Jiesi image appraisal opinion".
2. The Letter of Confirmation of Road Traffic Accidents and the Notice of Handling Road Traffic Safety Violations issued by the road traffic management department are an important part of the evidence chain of this case. It is determined that the accident occurred because Song was drunk driving a motor vehicle, escaped after the accident, and the party Zhang was driving an electric bicycle without driving in a non-motorized vehicle lane. Therefore, it is determined that Song was fully responsible for the accident. This evidence corroborates Zhang Moumou’s testimony, and it is also consistent with other evidences, forming a chain of evidence. It is obviously inappropriate for the first-instance judgment not to accept this.
After trial, Haikou Intermediate People’s Court held that the testimony of Zhang Moumou, a witness to prove the facts of this case, was not supported by other evidence, and reasonable doubt could not be ruled out. Both the Judicial Appraisal Center of Southwest University of Political Science and Law and Guangdong Tianzheng Judicial Appraisal Center decided that the same sample did not meet the requirements for portrait appraisal, while the same sample on which the "Yuejiesi Image Appraisal Opinion" was based made an identical conclusion. After comparison and demonstration, the "Yuejiesi Image Appraisal Opinion" lacked reliability. The original judgment found that the facts and applicable laws were correct, and accordingly it was found that the defendant Song was innocent and correct. On September 2, 2019, Haikou Intermediate People’s Court made a final ruling, dismissed the protest and upheld the original judgment.
(3) Retrial protest
On September 29, 2019, the Haikou Municipal People’s Procuratorate held that the original judgment was indeed wrong and requested the Hainan Provincial People’s Procuratorate to protest in accordance with the trial supervision procedure. On December 27, 2019, the People’s Procuratorate of Hainan Province lodged a protest with the Higher People’s Court of Hainan Province. During the protest, the prosecutor in charge newly discovered the image data captured by the road monitoring, and entrusted the Judicial Appraisal Center of Shanghai People’s Procuratorate to identify the identity of the car driver and the defendant Song Moumou in the original trial. The appraisal opinion once again confirmed that the style, color, hairline and nose features of the coat worn by the driver of the car on the night of the incident were similar or identical to those of the coat worn by Song Moumou when he was lying drunk and drawing blood. Comprehensive analysis of the original evidence and retrieval of the new evidence, the evidence in the whole case is more reliable and sufficient, and the evidence chain is more complete, completely excluding the possibility of others driving, and the unique conclusion of Song’s drunk driving can be drawn.
(4) the result of the protest
On June 7, 2021, the Higher People’s Court of Hainan Province adopted the protest opinion, ruled that the original judgment was revoked, and the defendant Song Moumou in the original trial was convicted of dangerous driving, sentenced to six months’ criminal detention and fined 20,000 yuan.
[Guiding significance]
(a) the people’s procuratorate shall standardize the exercise of the right of no appeal according to law, and strengthen the internal supervision and control of the decision not to sue.According to the Criminal Procedure Rules of the People’s Procuratorate, the people’s procuratorate at a higher level shall revoke or instruct the people’s procuratorate at a lower level to correct the wrong decision not to prosecute. If the people’s procuratorate at a lower level decides not to prosecute a case that is controversial and has great influence after examination, it shall timely file it with the people’s procuratorate at a higher level, and if the people’s procuratorate at a higher level finds that there is an error, it shall promptly correct it. In order to ensure the fairness of the decision not to prosecute, procuratorates at all levels should fully understand the importance of establishing and improving the filing and review system, find and correct the wrong decision in time, and hold a non-prosecution hearing in time if it is necessary to organize a hearing; Strengthen business guidance, and strive to improve the level of review and prosecution and the quality of handling cases through regular analysis, briefing and case summary.
(II) In handling protest cases, people’s procuratorates should fully perform their functions of legal supervision, insist on continuous protest and continuous supervision, ensure that the verdict of the case is fair, and reflect the procuratorial responsibility with the objective and fair handling of "small cases".Procuratorial organs should fully perform their legal supervision functions, and procuratorates at higher levels should strengthen the guidance on the protest work of procuratorates at lower levels, closely follow the protest key points, strictly control the protest standards, and form a joint force of supervision. If the court refuses to accept the correct protest opinions of the lower-level procuratorates, the higher-level procuratorates should provide strong support, continue to supervise with the lower-level procuratorates, and fight to the end, and ensure that the wrong judgments are supervised and corrected through the continuous supervision of the lower-level procuratorates. It is the basic requirement of the procuratorial organ’s objective and fair obligation to handle every "small case" with heart and affection, which shows the procuratorial responsibility and feelings for the people.
(three) to strengthen the substantive review of judicial expertise, to ensure the objectivity and scientificity of the review conclusions.If the people’s procuratorate finds that a case has two or more expert opinions on the same specialized issue, and the conclusions are inconsistent, it may, if necessary, decide to supplement the expert opinion or re-evaluate it according to law. It is necessary to strengthen the analysis, comparison and judgment of judicial expertise opinions, and conduct substantive review from the aspects of the compliance of the appraisal subject, the legality of the appraisal procedure, the scientificity of the appraisal method, the sufficiency of the appraisal materials and the rationality of the analysis and demonstration, and combine other factual evidence of the case to analyze and draw a scientific review conclusion.
[Relevant regulations]
One of the 133rd articles of the Criminal Law of People’s Republic of China (PRC)
Articles 228, 232, 236 and 254 of the Criminal Procedure Law of People’s Republic of China (PRC) (revised in 2018)
Articles 425 and 591 of the Rules of Criminal Procedure of the People’s Procuratorate (Trial) (implemented in January 2013) (now articles 389 and 591 of the Rules of Criminal Procedure of the People’s Procuratorate implemented in 2019)
Procuratorate handling the case: Hainan Provincial People’s Procuratorate Haikou People’s Procuratorate of Hainan Province People’s Procuratorate of xiuying district, Haikou City, Hainan Province
Prosecutor in charge: Li Haihong   Fu Lei   Yang Bing   Li Xiaoshan  
Case writer: Fu Shaojing
