After obtaining the (2019) E 0583 Xingchu No. 203 Criminal Judgment (hereinafter referred to as the Judgment No. 203) issued by the Zhijiang City People’s Court of Hubei Province (hereinafter referred to as: Zhijiang Court), Cao Shihua’s wife, Ms. Zhuang, felt that she could not understand: this The second-instance judgment did not identify the three problems that the court of second instance considered unclear and insufficient evidence, and it was “just exactly the same” as the evidence and the confirmed facts listed in the revoked original first-instance judgment.

　　Cao Shihua, 57, is a shareholder of several forestry companies in Yichang.

On November 1, 2018, the Zhijiang Court issued (2018) E 0583 Xingchu No. 100 Criminal Judgment (hereinafter referred to as: Judgment No. 100). Cao Shihua was sentenced to one and a half years of imprisonment for the crime of obstructing liquidation. On the 6th.

Cao Shihua refused to accept and appealed.

The Yichang Intermediate People's Court (hereinafter referred to as Yichang Intermediate People's Court) revoked the original judgment due to unclear facts and insufficient evidence, and sent it back to Zhijiang Court for retrial.

　　On September 14 this year, Zhijiang Court issued Judgment No. 203, which also sentenced Cao Shihua to the crime of obstructing liquidation and sentenced him to one year and five months in prison, one month shorter.

　　On October 29, Ms. Zhuang told The Paper (www.thepaper.cn) that Cao Shihua had reported to the Yichang Intermediate People’s Court that the facts were unclear and the evidence was insufficient when the Yichang Intermediate People’s Court had not been investigated for retrial. Appeal.

At present, the Yichang Intermediate Court has not yet determined the time for the hearing.

　　A legal expert told The Paper that in this case, the Zhijiang Court made a “highly similar” judgment to the verdict that was revoked by the second instance after the retrial. “It cannot be said that there is a problem.” This may involve the two levels of courts having different understandings of the same case. problem.

After the judgment of the case sent back for retrial is made, if the defendant appeals again, the people’s court of second instance shall make a judgment or ruling in accordance with the law, and shall not be sent back to the original people’s court for a new trial.

The original judgment was revoked at the second instance and sent back for retrial

　　In 2012, Cao Shihua invested in Hubei Longteng Garden Engineering Co., Ltd. (hereinafter referred to as: Longteng Company).

After the shareholding, the company’s legal representative and general manager Zhou Limin accounted for 51% of the shares, and Cao Shihua served as the company’s supervisor, accounting for 49% of the shares.

In 2015, Cao Shihua and Zhou Limin jointly registered and established Zhijiang Longmai Cultural Industrial Park Co., Ltd. (hereinafter referred to as: Longmai Company).

One year later, the company was cancelled and liquidated.

　　Judgment No. 100 shows that the Zhijiang court held that Cao Shihua, as a member of the Longmai Company’s liquidation team, made false records on the balance sheet when the company was in liquidation. The amount amounted to more than 500,000 yuan. His behavior constituted a crime of obstructing liquidation and should be subject to Penalties and punishments.

Cao Shihua and his defenders argued that Cao Shihua did not actually participate in the liquidation work, did not hinder the liquidation and the consequences, and that Cao Shihua was not guilty.

After investigation, Cao Shihua provided relevant materials such as the "Company Deregistration Application" and "Liquidation Report" and arranged for staff to deregister Longmai Company.

The "Liquidation Report" made false records on the balance sheet of Longmai Company. Existing evidence confirms that as of September 2018, Longmai Company still owed Longteng Company 2.905 million yuan and did not return it. Therefore, Cao Shihua should be convicted and punished for the crime of obstructing liquidation. The defendant and defender’s reasons for the above defense were rejected by the court.

　　The Zhijiang Court sentenced Cao Shihua to the crime of obstructing the liquidation and sentenced him to one year and six months in prison and a fine of 50,000 yuan.

Cao Shihua refused to accept and appealed to the Yichang Intermediate Court.

　　During the appeal period, the Yichang Intermediate People's Court issued a "Decision on Release on Bail Pending Trial" on February 1, 2019, and adopted compulsory measures against Cao Shihua for release on bail pending trial.

At that time, there were 34 days left before the release date (Note: March 6, 2019) in the first instance judgment.

　　On June 24 of the same year, the Yichang Intermediate People's Court made a criminal ruling, revoking the first-instance judgment and sent it back to Zhijiang Court for a new trial.

　　The ruling showed that the Yichang Intermediate People's Court held that the facts that the original judgment found Cao Shihua guilty of obstructing liquidation were unclear and the evidence was insufficient.

After investigation: 1. The original judgment found that “Longmai Company still owes 2.905 million yuan to Longteng Company as of September 2018 and has not returned” the facts are unclear and the evidence is insufficient; 2. The original judgment found that Cao Shihua “has taken the assets of Longmai Company when the company was liquidated The fact that the balance sheet is falsely recorded" is unclear and insufficient evidence.

3. The original verdict did not ascertain whether Cao Shihua had criminal intentions subjectively, and the evidence was insufficient.

The court of first instance convicted again with the same evidence

　　After the case was sent back for retrial, the Zhijiang Court issued Judgment No. 203 on September 14: Cao Shihua was sentenced to one year and five months in prison for the crime of obstructing the liquidation and a fine of 50,000 yuan.

　　After receiving this judgment, Ms. Zhuang found that “the 22-page judgment, except for the basic situation of the defendant, defense lawyers, litigation procedures, and the final judgment, is the same as the No. 100 judgment.”

　　The Paper compared the two judgments and found that the content and evidence provided by the Zhijiang City People’s Procuratorate in the two judgments are completely the same, and the content of the Zhijiang Court’s "verified by trial" is completely the same; the No. 203 judgment except for the deletion of one In addition to the witness's testimony, the evidence (documentary evidence, witness testimony, Cao Shihua's confession and defense, and expert opinion) confirming the content of the investigation is completely consistent with the content recorded in the No. 100 judgment.

　　In addition, the two judgments recorded in the "this court's opinion" part, the content recorded in the judgment No. 203 is only more than the sentence No. 100, "in which the debt owed to Longteng Company is 0".

　　According to a Beijing legal expert told The Paper, the Criminal Procedure Law stipulates that the second-instance people’s court can conduct an investigation if the facts of the original judgment are unclear or the evidence is insufficient for appeals and protest cases against the first-instance judgment. After the facts are cleared, the judgment is amended; it can also be ruled to revoke the original judgment and remand to the original people’s court for retrial.

　　The expert believes that in this case, the Zhijiang Court made a “highly similar” judgment to the verdict that was revoked by the second instance after the retrial. “It cannot be said that there is a problem. This involves two levels of courts with different understandings of the same case. For example, the court of second instance It believes that the facts are unclear and the evidence is insufficient, but the retrial court believes that the facts have been found out and the evidence is indeed sufficient, but the sentence is slightly heavier, so the retrial court can also reduce the sentence."

　　The expert stated that after a judgment is made in a case sent back for retrial, if the defendant appeals or the people’s procuratorate raises a protest, the people’s court of second instance shall make a judgment or ruling in accordance with the law and shall not remand it to the original people’s court for a new trial.

The defendant appealed again

　　The Paper noted that in the original trial, the second instance, and the retrial, the court applied for an extension of the trial period on the grounds of "complicated circumstances": in the original trial, the Zhijiang Court requested the Yichang Intermediate Court to extend the trial period by 3 months; in the second trial, Yichang Intermediate People's Court reported to the Hubei Provincial Higher People's Court for an extension of 2 months; during the retrial period, Yichang Intermediate People's Court approved the extension of the time limit for 3 months, and was reported to the Supreme People's Court to extend the trial period twice for a total of 6 months.

　　According to Ms. Zhuang, during the retrial of the Zhijiang Court, another episode occurred: On August 31, 2020, the Zhijiang Court issued a "Criminal Ruling", stating that the court was unable to impose Cao Shihua in court during the trial and cannot continue. The trial of the case was suspended due to trial.

"The lawyer received the decision to suspend the trial on the 8th (September). At noon on the 10th, the lawyer said that he received the court's notice to open the trial the next morning. Such hasty notice prevented Cao Shihua's chief defense lawyer from coming to the trial. "

　　Ms. Zhuang believes that during the retrial period, since Zhijiang Court extended the trial period several times on the grounds of “complicated circumstances”, it should verify the “facts are unclear and insufficient evidence” considered by Yichang Intermediate Court. However, Zhijiang Court Without adding new evidence, and without clarifying the contents of the three “insufficient evidence” mentioned by the Yichang Intermediate Court, a judgment that was highly similar to the No. 100 judgment was made, which could not convince Cao Shihua and his family.

　　In addition, Ms. Zhuang believes that during the retrial, the Zhijiang Court first notified the suspension of the trial and then hurriedly notified the hearing, which violated the “Criminal Procedure Law” that “after the people’s court has determined the date of the hearing, it should notify the people of the time and place of the hearing. The procuratorate notified defenders, agents ad litem, witnesses, appraisers, and interpreters that subpoenas and notices should be served at least three days before the trial, which is a violation of the law.

　　Ms. Zhuang said that Cao Shihua has again appealed to the Yichang Intermediate Court.

At present, the Yichang Intermediate People's Court has not notified the time of the second instance.

　　The Paper Journalist Wang Xin and intern Liu Chunyan