In the movie "The Final Truth", lawyer Ding Yifeng was banned by the whole industry for exposing the shady scenes of his law firm, and because of a chance to reappear, he reversed a losing lawsuit into innocence, and fame and fortune followed. As the plot progresses, Ding Yifeng discovers that the truth of the case is not as simple as it seems, how will he choose between justice and fame and fortune again?
In the face of seemingly conclusive evidence, the down-and-out lawyer continues to dig up clues and pursue the truth. In this issue of "Chasing Drama and Learning Law", Zhang Baojun, a member of the lawyer expert database of "Rule of Law Daily", a member of the Management Committee of Beijing Kangda Law Firm, and a senior partner, will take us to uncover the legal points behind "The Final Truth".
Scenario 1: Six years ago, Ding Yifeng's law firm colluded with the developer to deceive the parties and defend negatively. Ding Yifeng reported his law firm, and he was also accused of going to prison. The law firm asked Ding Yifeng to use 100,000 yuan to "go private", otherwise he would be imprisoned and lose his lawyer's card. Can a lawyer report a law firm if he or she finds that there is an illegal act?
The "Opinions on Deepening the Reform of the Lawyer System" issued by the General Office of the CPC Central Committee and the General Office of the State Council clearly requires that the practice discipline system be strictly enforced, that work procedures such as complaint acceptance, investigation, and hearing handling be established and improved, that the work of administrative punishment and industry punishment be strengthened, that the types of punishment be improved, and that the force of investigation and punishment of violations of laws and regulations be increased.
If a lawyer discovers that a law firm has violated laws or regulations, they may report it to the lawyers association, judicial administration, and other departments, but the report should be based on a basis and must not fabricate facts. If the subject of the report retaliates against the informant or even extorts money, the informant may report the case to the public security organ.
Scene 2: Ding Yifeng's client, Jin Ximei, is a massage girl who provides special services, and is prosecuted on suspicion of killing her client Ma Shuangxi. During the trial, Kim Hee-mei confessed to premeditated murder. Because Jin Ximei's sleeve was ripped off at the time of the crime, and there were traces of a fight at the scene, Ding Yifeng asked Jin Ximei to retract her confession that Ma Shuangxi raped her at that time, and she caused Ma Shuangxi's death because of resistance. In reality, can a confession be retracted at will in court?
During the course of the court proceedings, the defendant may change or even reverse the confession he made before the trial. With regard to the review of retracted confessions, the "Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China" stipulates that the review of the defendant's confession and defense shall be conducted in conjunction with all evidence provided by the prosecution and defense, as well as all of the defendant's confessions and defenses. Where the defendant retracts his confession at trial, but cannot reasonably explain the reasons for the retraction or his argument contradicts the evidence in the entire case, and his pretrial confession is mutually corroborated with other evidence, his pretrial confession may be accepted. Where the defendant's pretrial confessions and defenses are repeated, but they confess at trial and are mutually corroborated with other evidence, their trial confessions may be admitted; Where the defendant's pretrial confessions and defenses are repetitive, and they do not confess at trial, and there is no other evidence to corroborate the pretrial confession, their pretrial confession must not be accepted.
Therefore, the defendant can change his confession in court, but the court will decide whether to admit it based on all the evidence in the case.
Scene 3: Ding Yifeng used the "unlimited right of defense" in the rape to defend Jin Ximei's innocence, but the prosecution proposed that Ma Shuangxi was hit to death by the ashtray many times, and if Jin Ximei was acting in self-defense, she should have stopped when the other party was incapacitated, rather than being beaten to death. In practice, how to determine the legitimate defense in the face of rape?
The Criminal Law stipulates that a person who is engaged in murder, homicide, robbery, rape, kidnapping, and other violent crimes that seriously endanger personal safety, and takes defensive actions, causing injury or death to an unlawful infringer, is not considered to be excessive defense and does not bear criminal responsibility, which is the "unlimited right of defense" or "special defense" advocated by Ding Yifeng in the play.
In the play, if there is clear evidence that Ma Shuangxi has lost his ability to act, the illegal infringement has ended, and Jin Ximei continues to hit him, then Jin Ximei is overly defensive. However, in the handling of justifiable defense cases involving rape, the principle of favoring the defender should be reflected when determining whether the unlawful offender's intent to infringe, the ability to infringe, the intensity of the offense, and whether the unlawful offense is continuous. It is necessary to give full consideration to the state of urgency and nervousness of the defender when facing an unlawful offense, and prevent the defender from being judged by the criteria of calmness, rationality, objectivity, and accuracy under normal circumstances after the fact.
Scene 4: Jin Ximei's son Mao Weiwei was burned when he was a child and needed 600,000 yuan for treatment. Ding Yifeng designed to use Mao Weiwei to threaten Jin Ximei to retract her confession, and Jin Ximei lied in court to protect her son. But in the end, Ding Yifeng concealed the fact that Mao Weiwei deliberately injured Ma Shuangxi in court, and admitted that he forced Jin Ximei to confess. What is the responsibility of the defender for inducing the client to give false testimony?
If the defender causes the witness to change his testimony contrary to the facts or give false testimony by means of threats or inducements, he is suspected of the crime of obstructing testimony. The Criminal Law stipulates that in criminal proceedings, where a defender or agent ad litem destroys or fabricates evidence, assists a party in destroying or fabricating evidence, threatens or induces a witness to change his testimony contrary to the facts or give false testimony, he shall be sentenced to fixed-term imprisonment of not more than three years or short-term detention; where the circumstances are serious, the sentence is between three and seven years imprisonment.
It should be noted that the key to whether the defendant is suspected of the defender's crime of obstructing testimony by threatening a client to retract his confession is whether the retracted confession is "contrary to the facts", and if the court finds that the confession after the retraction is in line with the facts, then even if the retraction is carried out under the threat of the lawyer, the lawyer will not bear legal responsibility.
Zou Xingyu
(Rule of Law Daily)