China News Service, August 29. According to the website of the Supreme People's Procuratorate, recently, the Supreme People's Procuratorate issued the thirty-ninth batch of guiding cases with the theme of public hearing of criminal complaints, aiming to play the role of public hearings in interpreting the law in the process of handling criminal complaint cases. The role of reasoning, resolving social conflicts and disputes, assisting procurators in performing their duties, guiding, regulating and leading procuratorial organs in handling cases, makes the people feel that fairness and justice are at hand.
The thirty-ninth batch of Guiding Cases includes four cases, namely, the public hearing of the complainant Chen Moumou's criminal complaint for contract fraud, and the complainant Wu Moumou and Yang Moumou's dissatisfaction with the judicial organ's change of the original decision to deal with the criminal complaint in accordance with the law. , the complainant Dong Moumou's civil dispute criminal complaint public hearing case, and the complainant Dong Moujuan's private prosecution case criminal complaint simple public hearing case.
Among them, in terms of the nature of the cases, the batch of guiding cases includes 2 appeals against the decision of the procuratorial organ, 1 appeal against the effective judgment of the court, and 1 case against the withdrawal of the prosecution by the procuratorial organ.
This batch of guiding cases for public hearing of criminal appeals was compiled in accordance with the basic procedures and working methods required by the "People's Procuratorate's Regulations on Hearing of Cases Reviewing Cases". Consists of six parts.
In the part of the procuratorial organ's organization of hearings, according to the situation of the case, there are sub-headings such as pre-hearing preparation, public hearing, and hearing implementation, highlighting the process and specific content of case handling, so as to enhance the standardization and operability of case guidance.
The relevant person in charge of the Tenth Procuratorate's Office of the Supreme People's Procuratorate said that summarizing and promoting the excellent and successful experiences and practices in the public hearing process of criminal appeal cases, and compiling and distributing relevant guiding cases will help further consolidate the achievements made since the public hearing of criminal appeal cases was carried out. The results of the investigation, give full play to the demonstration and leading role of "one case is better than a dozen documents", make judicial case handling bright and transparent, continuously satisfy the people's right to know, and actively respond to social concerns.
The case is as follows:
Public Hearing of Chen Moumou's Criminal Complaint
(Prosecution No. 158)
【Key words】
Criminal appeals The chief prosecutor presides over the hearing Intersection between criminals and citizens Interpretation and reasoning Conflict resolution Hearing should be done
【gist】
When handling complex and controversial criminal cases, procuratorial organs should adhere to the principle of "all hearings should be heard", so as to clarify the facts of the case, explain the legal principles, resolve conflicts, and close the case.
The public hearing of criminal appeal cases focuses on interpreting the law and reasoning, unraveling the "heart knot", and guiding the parties to understand and agree with the handling decision made by the people's procuratorate in accordance with the law.
The presiding prosecutor presides over the hearing, and if he can make a decision on the spot, he can announce the decision on the spot and explain the reasons.
During the deliberation of the hearing panelists, the presiding prosecutor may further communicate with both parties in light of the hearing situation, and do more targeted and specific conflict resolution and interpretation and reasoning work.
Hearers' comments are an important reference for the people's procuratorate to make decisions.
【Basic case】
The complainant, Chen Moumou, is the victim of Wang Moumou and Lu Moumou suspected of contract fraud.
From 2010 to 2013, an Aluminum Co., Ltd. in Fujian Province (hereinafter referred to as the Aluminum Company) for three consecutive years for a Plastic Manufacturing Co., Ltd. in Fujian Province (hereinafter referred to as the Plastic Company) to China Everbright Bank Co., Ltd. Quanzhou Branch (hereinafter referred to as Quanzhou Branch) loans are guaranteed, and plastic companies repay the loans on schedule.
On April 10, 2014, the Plastics Company and Quanzhou Branch signed a "Comprehensive Credit Agreement" with a validity period of one year and a maximum credit line of 20 million yuan.
The Aluminum Company, Wang Moumou and Lu Moumou (both shareholders of the Aluminum Company) provide the Plastic Company with a maximum guarantee, and the guarantee period is two years from the date when the Plastic Company's debt performance period expires.
On April 8, 2015, two days before the effective period of the maximum credit line expired, the plastic company used the Nan'an Municipal Government's on-lending "bridge" funds to repay the above-mentioned 20 million yuan loan, and renewed the loan of 20 million yuan on the same day. Deadline is October 6, 2015.
From April 2014 to May 2015, Chen Moumou learned that the aluminum company wanted to transfer, so he visited the aluminum company many times.
On May 12, 2015, the shareholders of the aluminum company Wang Moumou, Lu Moumou and Chen Moumou signed the "Equity Transfer Agreement", agreeing to transfer 100% of the shares of the aluminum company to Chen Moumou for 14 million yuan, and issued The "Guarantee" promises that there will be no external debt disputes before the equity transfer of the aluminum company. After the equity transfer, if the aluminum company is pursued by a third party for debts, the guarantor is willing to assume all guarantee responsibilities. losses shall be borne by the guarantor.
Chen Mouzhao, general manager of the aluminum company, served as the guarantor of the guarantee.
It was also agreed that Chen Moumou paid the aluminum company 14 million yuan for the inventory materials, of which 10 million yuan would be directly compensated by Chen Moumou for the loan of the aluminum industry company.
After the equity transfer agreement was signed, Chen Moumou successively transferred 10 million yuan to the aluminum company account and 18 million yuan to Lu Moumou.
On October 6, 2015, the plastic company failed to repay the loan and interest as scheduled after the loan of 20 million yuan expired.
On January 7, 2016, Quanzhou Branch filed a lawsuit with the People's Court of Fengze District, Quanzhou City, demanding that the plastic company, the guarantor Aluminum Company and its shareholders Wang Moumou and Lu Moumou repay the loan principal and interest.
On December 12, 2016, the Fengze District People's Court of Quanzhou City ruled that the Aluminum Company, Wang Moumou and Lu Moumou should bear joint and several guarantee liabilities for the principal and interest of the 20 million yuan loan of the Plastic Company.
As the aluminum company was sued, Chen Moumou reported to the Liancheng County Public Security Bureau on February 5, 2016 that Wang Moumou and Lu Moumou were suspected of contract fraud, and the Liancheng County Public Security Bureau then filed a case for investigation.
On May 2 of the same year, Chen Moumou filed a lawsuit to revoke the equity transfer agreement with the Intermediate People's Court of Quanzhou City, requiring Wang Moumou and Lu Moumou to return the 14 million yuan equity transfer funds.
On April 24, 2017, the Liancheng County Public Security Bureau transferred Wang Moumou and Lu Moumou suspected of contract fraud to the Liancheng County People's Procuratorate for review and prosecution.
On November 3 of the same year, the Quanzhou Intermediate People's Court held that Chen Moumou had filed a complaint with the Liancheng County Public Security Bureau for the case of Wang Moumou and Lu Moumou suspected of contract fraud, and the relevant judicial organs accepted it as a criminal case and entered into review and prosecution. stage, the ruling was dismissed.
Chen Moumou refused to accept and appealed to the Higher People's Court of Fujian Province.
On April 3, 2018, the Liancheng County People's Procuratorate made a decision not to prosecute Wang Moumou and Lu Moumou on the grounds that the facts were unclear and the evidence was insufficient.
On July 23 of the same year, the Higher People's Court of Fujian Province ruled that since the Liancheng County People's Procuratorate had made a decision not to prosecute, the criminal proceedings against Wang Moumou and Lu Moumou had ended, and ordered the Quanzhou Intermediate People's Court to try Chen Moumou. v. Wang Moumou, Lu Moumou and others in the case of equity transfer contract disputes.
On December 3, 2018, the Intermediate People's Court of Quanzhou City held that Wang Moumou, Lu Moumou and others did not truthfully inform Chen Moumou of the guarantee facts of Aluminum Company, concealed the real situation, and constituted fraud, and decided to revoke the "Equity Transfer Agreement". "Book", Wang Moumou and Lu Moumou returned Chen Moumou's equity transfer payment of 14 million yuan, and Chen Mouzhao was jointly and severally liable for the above-mentioned payment.
Chen Mouzhao refused to accept and appealed.
On September 26, 2019, the Higher People's Court of Fujian Province ruled to reject the appeal and upheld the original judgment.
Later, Chen Moumou applied for execution. Because the enforced persons Wang Moumou, Lu Moumou, and Chen Mouzhao had no property available for execution, the Quanzhou Intermediate People's Court ruled to terminate the execution procedure.
Chen Moumou refused to accept the Liancheng County People's Procuratorate's decision not to prosecute Wang Moumou and Lu Moumou for alleged contract fraud on the grounds of unclear facts and insufficient evidence, and filed a complaint.
The Longyan City People's Procuratorate upheld the original decision not to prosecute after re-examination.
The Fujian Provincial People's Procuratorate found that the reasons for the complainant Chen Moumou's complaint were not tenable, and the case was not filed for review.
The complainant, Chen Moumou, still refused to accept it, and filed a complaint with the Supreme People's Procuratorate on the grounds that the actions of the non-prosecuted Wang Moumou and Lu Moumou constituted the crime of contract fraud, and the two should be held criminally responsible.
【Procuratorial Hearing Process】
Prepare for the hearing.
After the Supreme People's Procuratorate accepted the case in accordance with the law, according to the work system of "reply to the petitions from the masses", it would reply to the complainant Chen Moumou's acceptance status within seven days. The civil legal relationship is intertwined and the difficulties are complicated. It is a typical case handled by the procuratorial organ in which a decision not to prosecute is made due to unclear facts and insufficient evidence for suspected economic crimes.
In order to properly handle the case in accordance with the law, the Supreme People's Procuratorate established a case-handling team with the chief prosecutor as the lead prosecutor, to study and formulate work plans, review the case files, and comprehensively sort out the factual evidence, application of laws, and laws at various stages of criminal and civil litigation. Controversy focus, make a chart of loan guarantee details and capital transactions before and after the incident, refer to the theoretical viewpoints of experts and scholars and judicial practice cases, in-depth analysis of the nature of the behavior involved, clarify the boundary between civil fraud and contract fraud, and propose a legal solution.
The prosecutor of the case handling team went to the place where the case occurred twice to learn about the background of the case and the operating conditions of the companies involved in the case, listened to the complainant Chen Moumou's complaint reasons and requests in person, and verified the operation of the non-prosecuted persons Wang Moumou, Lu Moumou and the family business If the situation is necessary, contact the original legal representative of the enterprise involved (the relative of the person not to be prosecuted) through the local federation of industry and commerce, and visit the relevant people's court.
After research and judgment, it is considered that such cases are typical of the cases handled by the procuratorate of not prosecuting suspected economic crimes due to insufficient evidence. In order to comprehensively verify the facts of the case, interpret the law, protect the legitimate rights and interests of the complainant and the person not prosecuted in the original case, and strengthen the handling of criminal complaints The transparency of the case and the promotion of the resolution of social conflicts. With the consent of the complainant and the person not to be prosecuted, the case handling team decided to hold a hearing to publicly review the case.
public hearing.
The hearing was held in the Procuratorial Hearing Room of the Fujian Provincial People's Procuratorate on October 22, 2020, and was presided over by the Chief Prosecutor of the Supreme People's Procuratorate as the lead prosecutor of the case handling group.
The complainant Chen Moumou, the non-prosecuted person Lu Moumou (the non-prosecuted person Wang Moumou was unable to attend due to illness) and his attorney Zhang Moumou, the fourth-level procuratorate undertook prosecutors, representatives of the National People's Congress, legal experts and the Supreme People's Court. Five hearing officers, including the people's supervisor designated by the procuratorate, participated in the hearing, and the relatives of those who were not prosecuted and representatives of local private entrepreneurs attended the hearing on the spot.
The case handling team fully listened to the opinions of all parties regarding whether the actions of the persons who were not prosecuted Lu Moumou and Wang Moumou constituted the crime of contract fraud.
The prosecutor who handled the original case expounded the differences between civil fraud and contract fraud in terms of subjective intention and purpose of conduct, and presented witness testimony, documentary evidence, and other evidence in the case one by one, centering on the fact that the existing evidence was insufficient to prove that the accused Lu Moumou, Wang Moumou has problems such as intentional transfer of guaranty responsibility, and explained in detail the reasons and basis for the procuratorial organ to make a decision not to prosecute and to review and maintain the decision not to prosecute.
The complainant Chen Moumou fully stated the reasons and requests for the complaint, and believed that the defendants Lu Moumou and Wang Moumou concealed their guaranty responsibilities when transferring the company's equity, which caused huge losses to them and constituted the crime of contract fraud. , requesting the procuratorate to investigate the criminal responsibility of the persons who were not prosecuted, Lu Moumou and Wang Moumou.
When the chief prosecutor asked the complainant, Chen Moumou, whether he had done due diligence before the transfer of the shares of the aluminum company, the complainant Chen Moumou admitted that he had not done due diligence, and said that if the same situation happened again, he would never sign a contract easily.
The defendants Lu Moumou and Wang Moumou stated that they did not know about the rupture of the plastic company's capital chain and the renewal of the loan before transferring the shares of the aluminum company, and the current result was not their original intention.
Because of his failure to execute the civil judgment, he has been included in the list of dishonest persons subject to execution by the court, and the production and personal life of the enterprise have been greatly affected.
The hearing officer asked questions to both parties and the prosecutor who handled the original case respectively.
A hearing officer suggested that when the equity transfer agreement was signed, the aluminum company was already providing a guarantee for the plastic company, but the aluminum company was unable to operate normally due to the guarantee problem, and Lu Moumou maliciously withdraws cash and transfers funds, whether it has the purpose of illegal possession subjectively. The problem.
The prosecutor who handled the original case responded that the aluminum company provided guarantees for the plastic company with a total of 100 million yuan in loans eight times for four consecutive years from 2010 to 2013.
The process of negotiating and signing the agreement on the equity transfer of the aluminum company lasted for a year. After Chen Moumou’s on-site inspection and face-to-face negotiation, he entrusted the legal counsel of his wife’s company to draft the “Equity Transfer Agreement” and “Guarantee”. Wang Moumou, Lu It will take effect after so-and-so's signature.
There is no evidence to prove that Wang Moumou and Lu Moumou knew that the plastic company's capital chain was broken when they signed the equity transfer, and they would inevitably generate a debt of guarantee, and maliciously transferred the debt to Chen Moumou.
After the guaranteed debt was incurred, Chen Moumou could not get a loan from the bank. When the business was difficult, Lu Moumou also assisted and actively helped him to tide over the difficulties.
From the perspective of the equity transfer process between the two parties, there is no obvious abnormal transaction, and there is no evidence to prove that Wang Moumou and Lu Moumou have a premeditated plan to illegally occupy.
In response to the issue of the whereabouts of the equity transfer funds, the prosecutor who handled the original case once again showed the testimony of witnesses. Among them, Lu Moumou made several confessions after his arrival. His confession and the testimony of witnesses Huang Mouchun and Huang Moudian can be mutually corroborated, that is, Lu Moumou After obtaining the equity transfer payment of 14 million yuan, it was handed over to Huang Muchun to repay the loan from Huang Mouchun when he previously purchased the equity of the aluminum company.
The prosecutor who handled the original case reproduced the details before and after the incident through detailed and objective evidence, and fully responded to the questions of the hearing officer.
After the hearing officer asked questions, the sponsoring prosecutor announced an adjournment, and the hearing officer discussed and reviewed the case.
A hearing officer believed that Wang Moumou and Lu Moumou did not truthfully inform Chen Moumou of the guarantee facts of the aluminum company, concealed the real situation, and obtained the equity transfer funds for transfer, which had the purpose of illegal possession and constituted the crime of contract fraud and should be charged. pursue their criminal responsibility.
However, most of the hearers believed that the facts of this case were unclear and there was a shortage of evidence. It was a suspected crime case, and it was appropriate for the procuratorate to make a decision not to prosecute if the evidence was insufficient.
It is suggested that the procuratorial organs strengthen the balanced protection of private enterprises in accordance with the law, solve practical problems for the enterprises involved in the case, and repair damaged social relations in a timely manner.
At the same time, it is expected that the defendants Lu Moumou and Wang Moumou will actively perform the civil judgment of the court and achieve reconciliation.
During the deliberation of the hearing panel, the presiding prosecutor talked with the complainant and the person not to be prosecuted, as well as their attorneys and relatives in light of the hearing, further explained the law and reasoning in a targeted manner, fully explained the proper handling of the case, resolved conflicts and disputes in a timely manner, and made The importance of returning to normal production and life for both parties involved mediation and resolution of conflicts between the parties.
It is pointed out that the persons who have not been prosecuted and their relatives should sincerely and fully implement the court's judgment, be released from the list of dishonest persons subject to enforcement as soon as possible, and resume normal production and life.
At the same time, further explain to the complainant the facts, evidence and legal basis for the procuratorial organ's decision not to prosecute, and hope that the complainant will learn from the lessons and conduct due diligence before signing the contract in the future to avoid unnecessary losses.
The complainant, the person not to be prosecuted, their attorneys, and their relatives expressed their willingness to accept the decision to be made by the Supreme People's Procuratorate.
After the sponsoring prosecutor announced the resumption of the meeting, the hearing representative expressed the majority of the hearing.
Based on the hearing opinions, the case handling team discussed and believed that Wang Moumou and Lu Moumou had indeed concealed the fraudulent behavior of the aluminum company's guarantee responsibility, but from the analysis and judgment of the entire process of signing and performing the equity transfer agreement and objective behavior, the existing evidence is It is not enough to prove that Wang Moumou and Lu Moumou have the subjective intention of illegally occupying 14 million yuan of equity transfer funds when they signed the equity transfer agreement, and it is not enough to prove that Wang Moumou and Lu Moumou deliberately concealed after signing the equity transfer agreement. Property behavior, the Liancheng County People's Procuratorate's decision not to prosecute Wang Moumou and Lu Moumou is not inappropriate and should be upheld.
The reasons are as follows:
1. The existing evidence is insufficient to prove that Wang Moumou and Lu Moumou had the intention to illegally occupy the transfer money of 14 million yuan when they signed the equity transfer agreement with the complainant Chen Moumou on May 12, 2015.
After investigation, the process of negotiating the transfer and signing the agreement lasted for one year. Chen Moumou voluntarily visited and negotiated face-to-face, and entrusted the legal counsel of his wife's company to draft the "Equity Transfer Agreement" and "Guarantee", and finally Wang Moumou It will take effect after the signature of X and Lv.
Judging from the process of negotiation and conclusion of the contract between the two parties, there is no obvious abnormal transaction, and there is no evidence to prove that Wang Moumou and Lu Moumou have a premeditated possession.
According to general transaction practices, the transferee should conduct due diligence on the target company during the conclusion of the contract and the acquisition process, but the complainant Chen Moumou in this case did not conduct due diligence during the process of signing the equity transfer agreement.
2. The existing evidence is insufficient to prove that Wang Moumou and Lu Moumou had the intention to transfer the guarantee responsibility of the aluminum company when they signed the equity transfer agreement.
The complainant Chen Moumou claimed that Wang Moumou and Lu Moumou, when they signed the equity transfer agreement, promised in the form of a letter of guarantee that there would be no debt disputes before the equity transfer of the aluminum company, when they knew that they had no property to pay their debts. Commitment to undertake the guarantee responsibility is intentional concealment and transfer of the guarantee responsibility.
The evidence in the case and the public hearings show that Wang Moumou and Lu Moumou did conceal the fraudulent behavior of the aluminum company's guarantee responsibility, but this behavior does not necessarily constitute a contract fraud crime in the sense of criminal law.
In this case, judging from the loan situation of the plastic company in Quanzhou branch from 2010 to 2013, the aluminum company provided a total of 100 million yuan loan guarantee for the plastic company eight times in three consecutive years, and the plastic company repaid the loan as scheduled. Guaranteed debt.
To determine whether Wang Moumou and Lu Moumou intentionally transferred the guarantee responsibility of the aluminum company, it should first determine whether Wang Moumou and Lu Moumou knew that the plastic company's capital chain was broken, and that a guarantee debt would inevitably arise, and the plastic company Seriously insolvent.
The existing evidence cannot prove that Wang Moumou and Lu Moumou knew that the plastic company could not renew the loan and repay the loan two days before the expiration of the maximum credit line, so it cannot be concluded that Wang Moumou and Lu Moumou intentionally transferred the guarantee responsibility. chain of evidence.
3. The existing evidence is insufficient to prove that Wang Moumou and Lu Moumou deliberately concealed their property after the performance of the contract.
After investigation, after the two parties signed the equity transfer agreement, they began to perform the main obligations stipulated in the contract: Chen Moumou actively fulfilled the payment obligations, Wang Moumou and Lu Moumou entrusted Chen Mouzhao to assist Chen Moumou in handling procedures such as asset liquidation and transfer; When Chen Moumou could not get a loan, Lu Moumou and Chen Mouzhao also assisted.
Regarding the whereabouts of the cash for the payment of the performance of the contract raised by the complainant, Lu Moumou made several confessions after he arrived at the case. In spring, it was used to repay the loan from Huang Moudian when he first purchased the aluminum company.
From this, it cannot be concluded that Lu Moumou deliberately concealed the transfer funds.
4. The actual controller of Chen Moumou before the transfer of the complainant by the Aluminum Company is doubtful.
The claimant claimed that the Aluminum Company was based on Fujian Minfa Aluminum Co., Ltd. (hereinafter referred to as Minfa Aluminum), and that the Aluminum Company had connections with Minfa Aluminum.
The evidence in the case shows that the aluminum company is a family business. From its establishment in 2001 to 2011, there were three shareholding changes, all of which were transferred between relatives, and there was no cash transaction record; the legal representative of the plastic company Chen Mouhua and others testified. , in major matters such as the guarantee provided by the aluminum company for the plastic company, the negotiation of the equity transfer of the aluminum company and the signing of the agreement, Huang Moudian participated in and even played a decision-making role to varying degrees, and Huang Moudian was the business of the aluminum company's branch in Quanzhou. designated contact.
As a commercial contract, the transferor has fraudulent behavior in the performance of the contract, but there is evidence pointing to and blaming the actual owner of the contract subject of a certain strength, which often does not necessarily lead to the loss of the transferee's property, so it is difficult to identify Wang Moumou and Lu Moumou Have the subjective intention of defrauding crime.
5. From the perspective of legal consequences, the guarantee provided by the party responsible for the guarantee does not necessarily lead to property losses of the guarantor.
In this case, the aluminum company provided a guarantee for the plastic company's loan to the bank, and the guarantee was only a "contingent debt" when the company's equity transfer agreement was signed, and the guarantee debt did not necessarily occur.
Although the plastic company was later judged by the court to return the bank arrears, the aluminum company must bear joint and several guarantee liabilities, but from the perspective of the business operation of the company when the guarantee debt occurred, the plastic company is in normal operation, and the aluminum company does not necessarily need to actually perform the guarantee debt. , or the debt cannot be recovered from the principal debtor after the performance of the guaranteed debt, that is, the guarantee provided by the aluminum company for the plastic company does not necessarily lead to the loss of the property of Chen Moumou, the transferee of the aluminum company.
The chief prosecutor announced the conclusion of the review on the spot, the complainant Chen Moumou expressed no disagreement, and the defendant Lu Moumou and the attorney Zhang Moumou made it clear that they would take practical actions to reach a settlement with the complainant on the enforcement of the civil judgment as soon as possible. .
Follow-up.
After the hearing, the case handling team of the Supreme People's Procuratorate instructed the Fujian Provincial Procuratorate to continue to do a good job in the follow-up work of the case.
The third-level procuratorate of Fujian Province actively implemented the hearing decision on the case, and urged the defendants Wang Moumou and Lu Moumou to perform the effective civil judgment of the Fujian Provincial Higher People's Court as soon as possible, so as to recover the economic losses for the complainant.
On November 2, 2020, both parties voluntarily signed the "Execution and Reconciliation Agreement", and the defendants Wang Moumou and Lu Moumou took back the aluminum company involved in the case with 12 million yuan.
On March 10, 2021, the implementation of the "Execution Settlement Agreement" was completed.
【Guiding significance】
(1) The handling of complex and controversial criminal cases shall adhere to the principle of "everything should be heard," to ensure judicial impartiality, enhance judicial credibility, and promote conflict resolution.
Procuratorial hearings are not only an effective way to deepen case review and find out the facts of a case, but also an objective need for doing a good job of interpretation and reasoning and conflict resolution.
When procuratorial organs accept and first handle complex and controversial criminal-civilian cases, they shall examine them by means of hearings, and deal with them accurately and qualitatively in accordance with the law.
For a criminal case in which a decision not to approve an arrest or not to prosecute is to be made in accordance with the law, and the parties have sharp conflicts, or it is an influential case, the procuratorial organ shall organize a hearing to hear the facts, evidence admissibility, application of law, and case handling. The opinions of the parties, hearing officers and other participants.
For criminal complaint cases with strong appeals and prominent contradictions, the procuratorial organ should also listen to the opinions of the complainant and other relevant personnel in person through hearings, fully explain the law and reason, and achieve the purpose of eliminating doubts, enhancing understanding, resolving contradictions, and promoting the conclusion of the case. .
(2) The chief procurators and deputy chief procurators of the people's procuratorates at all levels shall directly preside over the procuratorial hearings of major, difficult and complex criminal appeal cases.
The chief procurator and the deputy chief procurator preside over the hearing, and on the basis of comprehensively reviewing the file, grasping the facts of the case and the focus of the appeal, and combining the hearing process, they should do a good job in resolving conflicts in a targeted manner.
Especially during the temporary adjournment of the hearings, it is necessary to take advantage of the hearing situation to further communicate with the parties separately, and take into account the people's procuratorate's proposed decision to do more specific conflict resolution and interpretation and reasoning work, so as to provide the parties with understanding , lay the foundation for accepting the processing decision to be made.
(3) Fully respect the independent review status of the hearing panelist, and the reviewer's review opinion is an important reference for the people's procuratorate to make a decision.
Hearing officers are invited to participate in the hearing, and their duties are mainly to listen to the statements and explanations made by the parties, case handlers and other participants on issues such as the disputed issues of the case, conduct independent comments, and issue comments.
To ensure that all hearing officers independently and fully express their opinions.
After the deliberation is completed, a hearing officer may be nominated to express opinions on behalf of all the hearing officers.
If there are differences of opinion among the hearers, after the representative of the hearers has expounded the common opinions of the majority of the hearers, they shall also appropriately express the different opinions of the minority of the hearers.
The opinions of the hearing officers shall be used as an important reference for the people's procuratorate to handle the case in accordance with the law. If the majority opinion of the hearing officers is not to be adopted, it shall be reported to the chief procurator for a decision.
【Regulations】
"Criminal Procedure Law of the People's Republic of China" (amended on March 14, 2012) Article 171, Paragraph 4, Article 176 (now amended on October 26, 2018, Article 100 Article 75, paragraph 4, Article 180)
Articles 403, 404, 413, and 417 of the Criminal Procedure Rules of the People's Procuratorate (for Trial Implementation) (implemented on January 1, 2013) Article 367, Article 368, Article 377, Article 381 of the Criminal Procedure Rules of the People's Procuratorate that came into effect on December 30, 2019)
Articles 18 and 57 of the Provisions of the People's Procuratorate on Handling Criminal Appeal Cases (effective on September 22, 2020)
Articles 4, 13 and 17 of the Provisions on the Hearing Work of the People's Procuratorate for Examination of Cases (effective on September 14, 2020)
Wu Moumou and Yang Moumou Criminal Appeal Public Hearing Case
(Prosecution No. 159)
【Key words】
Criminal Appeal Age of Criminal Responsibility Incidental Civil Litigation Execution Supervision Judicial Relief Reverse Review
【gist】
For criminal complaints arising from judicial organs changing the original handling decision according to law but failing to interpret the law and reasoning for the parties, the procuratorial organs should fully interpret the law and reason, and organize procuratorial hearings when necessary to make up for the shortcomings in the handling of the original case and facilitate the conclusion of the case. .
Prepare carefully before the procuratorial hearing.
If the complainant does not trust, does not cooperate and other conflicting situations, it is necessary to do a good job in emotional counseling, and if necessary, seek the support and cooperation of the local relevant departments to jointly solve the "heart knot" and ensure the smooth holding of the hearing.
In the process of handling the case, if it is found that the complainant is in distress due to the case and meets the conditions for judicial assistance, assistance and assistance shall be provided in a timely manner.
For issues such as inadequate performance of duties or non-standard justice in the handling of the original case found through reverse review, relevant procuratorial organs should be urged to propose feasible rectification measures to further standardize judicial behavior and improve the quality and efficiency of case handling.
【Basic case】
The complainants Wu Moumou and Yang Moumou are close relatives of Wu Mouhui, the victim of Wu Moujian's robbery case.
At about 12:00 on January 28, 2008, the defendant Wu Moujian in the first trial took the victim Wu Mouhui's two-wheeled motorcycle at the General Passenger Transport Center in Pingnan County, Guangxi Zhuang Autonomous Region with a dagger, falsely claiming to go to Hengling, Guancheng Town, Pingnan County. village.
When the motorcycle drove to the Pingjin Highway and turned into the village-level road of Hengling Village, Wu Moujian stabbed Wu Mouhui several times with a dagger.
Subsequently, Wu Mouhui searched Wu Mouhui's body, snatched Wu Mouhui's Nokia mobile phone, 2 yuan in cash, and Wu Mouhui's two-wheeled motorcycle, and fled the scene.
According to the forensic identification, Wu Mouhui died of massive hemorrhage from a severed carotid artery.
On October 17, 2008, the People's Procuratorate of Guigang City filed a public prosecution with the Guigang City Intermediate People's Court against Wu Mujian on suspicion of robbery.
On August 20, 2009, the Guigang Intermediate People's Court sentenced Wu Moujian to 15 years in prison for robbery.
Wu Moujian appealed on the grounds that he was under the age of 14 when he committed the crime.
On July 30, 2010, the Higher People's Court of Guangxi Zhuang Autonomous Region ruled to revoke the original judgment and remanded the case for retrial on the grounds that the facts found in the original judgment were unclear and the evidence was insufficient.
On December 28 of the same year, the Guigang Municipal People's Procuratorate applied to the Guigang Municipal Intermediate People's Court to withdraw the prosecution on the grounds that the facts and evidence had changed, and returned it to the public security organ for additional investigation.
On December 31 of the same year, the Guigang Intermediate People's Court ruled to allow the withdrawal of the prosecution.
On January 19, 2012, after hearing the incidental civil lawsuit brought by Wu Moumou and Yang Moumou, the Guigang Intermediate People's Court decided to compensate the defendants Wu Moumou and Yang Moumou for economic losses of 141,075 yuan.
Wu Moumou and Yang Moumou refused to accept and appealed.
On May 4, 2012, the Higher People's Court of Guangxi Zhuang Autonomous Region ruled to dismiss the appeal and upheld the original judgment.
Wu Moumou and Yang Moumou still refused to accept it, and filed a complaint on the grounds that the defendant Wu Moujian was 14 years old at the time of the crime and constituted the crime of robbery.
The People's Procuratorate of Guangxi Zhuang Autonomous Region found that the reasons for the complainant's appeal were not valid, and the case was closed.
The complainant was still dissatisfied and lodged a complaint with the Supreme People's Procuratorate.
【Procuratorial Hearing Process】
Prepare for the hearing.
After a preliminary review, there is a major dispute over whether this case was committed by a minor.
During the handling of the case, the complainant was not fully explained and justified. The procuratorial organ withdrew the prosecution and returned the case to the public security organ for supplementary investigation. The failure to obtain judicial assistance in a timely manner resulted in the complainant's long-term petition and complaints, and did not accept the decision made by the judicial authority.
The Supreme People's Procuratorate formed a case-handling team headed by the chief prosecutor, carefully reviewed the appeal materials, reviewed all the files of the original case, verified relevant evidence, and listened to the opinions of the undertaker of the original case. Whether they are over 14 years old at the time of key investigation and verification.
In view of the difficulty and complexity of the case, the case handling team decided to hold a hearing to review the case publicly.
Before the hearing, the prosecutor of the case handling team went to the place where the case occurred, listened to the complainant's opinions in person, learned about the complainant's family situation on the spot, and patiently guided the complainant to protect his rights in a rational and lawful manner.
The day before the hearing, the complainant suddenly proposed not to participate in the hearing. The case handling team promptly coordinated with the local procuratorate and government departments to conduct psychological counseling for the complainant to ensure that the hearing was held as scheduled.
In response to the fact that the defendant Wu Moujian in the original trial was not educated and punished after the case, he did not admit his wrongdoing and repented. Do your best to compensate the victims for their economic losses.
public hearing.
On June 18, 2021, the public hearing of the criminal complaint case of Wu Moumou and Yang Moumou was held in the Procuratorial Hearing Room of the People's Procuratorate of Guigang City, Guangxi Zhuang Autonomous Region. The chief prosecutor of the case handling team presided over the hearing.
The complainant and his agent fully explained the reasons for the appeal. The first-instance prosecutor of the original case reviewed the prosecution, the second-instance prosecutor recommended the court to remand for retrial, the second-instance presiding judge remanded the court's decision, and the retrial prosecutor remanded the case. After the retrial, the procuratorial organ withdrew the prosecution, and the prosecutor of the Guangxi Zhuang Autonomous Region People's Procuratorate who handled the appeal case elaborated, presented and presented evidence on the review of the appeal case, seriously responded to the appeal of the complainant, and explained the law one by one around the focus of the dispute.
At the hearing, the prosecutor of the case handling team fully demonstrated to the complainant whether Wu Mujian was over 14 years old when he committed the crime, and whether there were two sets of evidence.
A group of evidences confirming that Wu Moujian was born on June 24, 1993 (Dragon Boat Festival in the lunar calendar) and was 14 years old at the time of committing the crime, including Wu Moujian's confession, suspect information registration form, student roster at school, and student status card , relevant witness testimony and the Ministry of Public Security's bone age appraisal opinions, etc.
Wu Moujian's confession was from his mother's statement that he was born on May 5, 1993 in the lunar calendar, but the confession contradicted his mother's testimony; the date of Wu Moujian's birth recorded in the suspect's information registration form was the time of the criminal suspect's self-reported date; The time of birth of Wu Moujian recorded in the school's student roster and student status card was also filled in by himself; some witnesses testified that they did not know Wu Moujian's specific date of birth; the bone age appraisal opinion of the Ministry of Public Security confirmed that Wu Moujian's age was 17±1 Even if the bone age appraisal opinion is accepted and it is determined that Wu Mujian was 16 years old when he committed the crime, there is still a big gap with other evidence that Wu Mujian was less than 15 years old when he committed the crime.
Another group confirmed that Wu Moujian was born on June 13, 1994 (Dragon Boat Festival in the lunar calendar) and was under the age of 14 when he committed the crime. There are witnesses Ke Moumou (the person who delivered Wu Moujian), Wang Mou, Wu Moucheng Testimonies of others, as well as the "Unimplemented Permanent Resident Registration Form", hydrological data, etc.
Among them, Ke Moumou's testimony confirmed that Wu Moujian was the only child he delivered, so he was deeply impressed.
The reason why I remember Wu Moujian was born in 1994 is because it was the year with the biggest flood since he married in Jiangkou Town, and the house in his family was swept away by the flood.
The Guigang Flood Control Office's "Records of Floods in Xunjiang and Yujiang Rivers in Guigang City" confirmed that in July 1994, the city's Guigang Station experienced the first major flood after the founding of the People's Republic of China. , he was pregnant in the same year as Wu Moujian's mother, and his son was born in October 1994 three or four months after Wu Moujian was born; witness Wu Moucheng testified that the reason why he remembered that his son was the same age as Wu Moujian ( was born in 1994) because "we share the same ancestral hall, and those who have males will catch capons to worship their ancestors during the Qingming Festival, so I remember very clearly"; Wu Moujian's registered date of birth was 1994.
五名听证员在充分听取案件事实和证据的基础上，经认真评议，形成听证意见，一致认为本案现有证据不足以证实原审被告人吴某坚作案时已满14周岁，骨龄鉴定意见也未能准确确定案发时吴某坚的真实年龄，而吴某坚在作案时的真实年龄是其应否承担刑事责任的关键，因此不能简单依骨龄鉴定意见认定，而应结合全案证据综合认定。故认定原审被告人吴某坚作案时已满14周岁的证据不足，检察机关撤回起诉并退回公安机关补充侦查的处理决定并无不当。鉴于被害人吴某辉死亡后，其妻子外出打工，下落不明；申诉人吴某某、杨某某以及被害人吴某辉的儿子吴某林祖孙三人目前仅靠每月870元左右的低保和养老金维持生活，无其他经济收入，加上申诉人吴某某、杨某某体弱多病，吴某林目前就读初中，尚未成年，祖孙三人的生活极为困难，符合国家司法救助条件，建议检察机关给予其国家司法救助。
办案组在全面审查案件的基础上，参考听证意见，在听证会上向申诉人说明，由于原审被告人吴某坚未在医院出生，没有出生证明，出生时其父母未向户籍管理部门申报户口，吴某坚的出生年龄无法通过出生证明、户籍证明等材料证实，根据《最高人民法院关于审理未成年人刑事案件具体应用法律若干问题的解释》第四条第一款“对于没有充分证据证明被告人实施被指控的犯罪时已经达到法定刑事责任年龄且确实无法查明的，应当推定其没有达到相应法定刑事责任年龄”的规定，推定吴某坚犯罪时未达到法定刑事责任年龄，故原办案机关综合全案证据所做处理决定，于法有据，并无不当，申诉人的申诉理由不能成立。办案组还当场播放了当地检察机关录制的吴某坚认错悔过和主动表示赔偿被害人经济损失的视频。申诉人表示服从检察机关作出的处理决定，承诺息诉罢访。
后续工作。2021年8月9日，贵港市人民检察院向公安机关发出撤销案件的检察建议书。8月10日，平南县公安局决定撤销此案。当地检察机关还依职权启动附带民事诉讼判决执行监督程序，向人民法院发出检察建议书，建议督促原审被告人吴某坚支付赔偿款。后吴某坚将3万元赔偿款汇至人民法院执行账户，并承诺今后每月履行3300元剩余赔偿款。为解决申诉人实际困难，广西壮族自治区三级检察院联合给予申诉人国家司法救助金，会同当地党委政法委、教委、妇联等部门，给予吴某林相应的民政救助，并开展心理辅导等。
广西壮族自治区人民检察院在全区范围就本案办理过程中，检察机关撤回起诉并退回公安机关补充侦查后长期“挂案”，检察机关既没有依法及时作出不起诉决定，也没有建议公安机关撤销案件；未对法院发回重审以及检察机关撤回起诉的具体理由和依据作出说明；未对被害人家属进行必要的释法说理，并给予帮扶救助；未对原审被告人吴某坚进行帮教，并移送相关部门采取相应的管束措施；未对附带民事诉讼判决执行情况跟进监督，导致赔偿款一直未执行到位，案未结、事未了等办案中的问题，开展专题反向审视，提出整改意见并督促落实，对相关责任人进行了责任追究。最高人民检察院向全国检察机关通报该案办理情况，要求各级检察机关进一步压实首办责任，建立常态化重复信访治理机制。
【指导意义】
(一)人民检察院组织检察听证，应当认真做好各项准备工作。对决定举行检察听证的刑事申诉案件，承办检察官在听证前要全面阅卷，充分了解案件事实、证据及焦点问题，并对相关问题进行调查核实。对于矛盾激化、诉求强烈的申诉案件，应当做好申诉人情绪引导和安抚工作，使其理解和自愿参加听证。
(二)人民检察院办理刑事申诉案件，发现申诉人因案致困，符合司法救助条件的，应当及时给予救助帮扶。在办理刑事申诉案件过程中，发现申诉人因案导致生活困难，经调查核实其经济收入、生活状况后，认为其符合司法救助条件的，应当主动告知其申请救助的方式，及时按程序提供救助。要联合社会各方力量，多渠道、更大力度解决申诉人的实际困难，给予申诉人更多的人文关怀、帮扶救济，让人民群众在司法案件的办理中不仅感受到公平正义，还感受到司法的温度。
(三)人民检察院办理刑事申诉案件，应当通过反向审视，对原案办理中的问题和瑕疵进行针对性整改。办理刑事申诉案件具有检视整个刑事诉讼过程的独特优势。要通过全面审查案件和公开听证，反向审视检察环节存在的履职不到位或者司法不规范等问题和瑕疵，促使相关检察机关提出切实可行的整改措施，并认真落实。要依规依纪追究相关人员司法责任，促进规范司法行为、严格依法办案，提升案件办理质效，增强司法公信力。
【相关规定】
《中华人民共和国刑法》第十七条、第二百六十三条
《最高人民法院关于执行〈中华人民共和国刑事诉讼法〉若干问题的解释》(1998年9月8日施行)第一百七十七条(现为2021年3月1日施行《最高人民法院关于适用〈中华人民共和国刑事诉讼法〉的解释》第二百九十六条)
《最高人民法院关于审理未成年人刑事案件具体应用法律若干问题的解释》(2006年1月23日施行)第四条第一款
《人民检察院民事诉讼监督规则(试行)》(2013年11月18日施行)第四十一条第三项(现为2021年8月1日施行的《人民检察院民事诉讼监督规则》第三十七条第五项)
《人民检察院审查案件听证工作规定》(2020年9月14日施行)第二条、第四条、第六条
董某某刑事申诉公开听证案
(检例第160号)
【关键词】
刑事申诉 检察听证 引导和解 检察建议 能动履职 综合治理
【要旨】
检察机关办理因民间矛盾、邻里纠纷等引发的复杂、疑难刑事申诉案件，应当举行检察听证，消除双方当事人之间的误会和积怨，引导双方当事人和解。对于刑事申诉案件反映出的社会治理不完善的问题，检察机关应当依法能动履职，推动主管部门予以完善。必要时可以邀请相关主管部门负责人参加检察听证，就有效化解矛盾、妥善处理案件等提出意见建议，促进综合治理。
【基本案情】
申诉人董某某，江西省供销储运公司退休职工，系徐某某涉嫌故意伤害案的被害人。
被不起诉人徐某某，系南昌铁路局南昌供电段退休职工。
2017年7月6日晚18时40分许，董某某和徐某某在南昌铁路文化宫门口台阶处因跳广场舞发生口角，进而互相拉扯。多名广场舞队成员上前劝阻，场面一度混乱，董某某、徐某某等人在拉扯过程中摔下台阶。后经南昌市西湖区公安司法鉴定中心鉴定，董某某右锁骨肩峰端粉碎性骨折，右侧第2至第6根肋骨骨折，符合轻伤二级标准。2017年9月19日，徐某某主动到公安机关接受调查。2019年1月17日，公安机关侦查终结，以徐某某涉嫌故意伤害罪移送南昌铁路运输检察院审查起诉。南昌铁路运输检察院经审查并两次退回公安机关补充侦查，认为徐某某与被害人董某某二人相互拉扯，摔下台阶导致董某某轻伤，现有证据无法认定系徐某某将董某某推下台阶或者击打董某某导致董某某轻伤，认定徐某某故意伤害董某某的证据不足，本案不符合起诉条件，于2019年7月23日决定对徐某某不起诉。申诉人董某某不服，向江西省人民检察院南昌铁路运输分院提出申诉，要求以故意伤害罪对徐某某提起公诉，追究其刑事责任。南昌铁路运输分院经审查认为董某某的申诉理由不能成立，于2019年12月12日审查结案。申诉人董某某仍不服，于2020年4月24日向江西省人民检察院提出申诉。
【检察听证情况】
听证前准备。江西省人民检察院受理案件后，组成了以副检察长为主办检察官的办案组，调取了该案全部案卷材料，多次听取申诉人董某某及其委托代理律师的意见，详细了解申诉人诉求，对董某某伤情鉴定进行文证审查，询问被不起诉人徐某某，到案发地调查，核实相关证人证言。经调查了解，董某某申诉的主要原因是其受到伤害后没有得到徐某某的道歉和赔偿，徐某某虽然表示愿意赔偿，但由于双方对赔偿金额分歧过大，无法达成一致，导致双方的矛盾一直没有化解。
公开听证。申诉人董某某和被不起诉人徐某某均向江西省人民检察院提出书面调解申请，并同意检察机关组织公开听证。2020年6月12日，办案组就该案举行公开听证，由主办检察官主持听证会。
听证会邀请了人大代表、政协委员、人民监督员、专家咨询委员、律师共五名听证员参加。听证会上，在主持人的引导下，申诉人董某某及其代理律师充分表达了申诉请求和理由，被不起诉人徐某某也表达了意见。三级检察机关承办检察官分别就案件办理经过、事实认定和证据情况以及作不起诉决定的理由向申诉人及其委托代理人进行了阐述和说明：一是认定徐某某实施伤害行为的证据存在疑问。董某某对于伤害过程的陈述前后不一致，在案多个证人证言内容相互矛盾，客观证据无法调取，徐某某是否实施了伤害行为存有疑问。二是认定徐某某主观上具有伤害故意存在疑问。现有证据仅能证实双方互有拉扯，徐某某未使用工具，没有确凿的证据显示徐某某有踢、打、推等伤害行为，证实徐某某主观上具有伤害董某某故意的证据不足。三是认定徐某某与他人共同犯罪的证据存在疑问。本案系突发性事件，没有证据显示徐某某与他人存在事先预谋、意思联络及共同行为。南昌铁路运输检察院经审查并两次退回补充侦查，仍然认为徐某某故意伤害董某某的证据不足，依法作出不起诉决定，并无不当。
五名听证员分别就有关问题向承办检察官、申诉人、被不起诉人进行了提问。经评议，听证员一致认为该案事发突然，徐某某是否殴打董某某，证人证言与董某某的陈述并不一致，徐某某坚决否认殴打董某某，侦查机关未提取到监控视频，依现有证据，难以认定徐某某具有伤害董某某的主观故意和行为，检察机关对徐某某作出不起诉决定正确，希望双方当事人推己及人、互让互敬，共同维护和谐稳定的社会秩序。申诉人董某某和被不起诉人徐某某均表示接受听证员意见。
本案办理过程中，办案组调查了解到，本案的起因系广场舞队活动场地纠纷引发。同时在该广场活动的广场舞队有铁路队、社区队。因场地、音乐声量等问题，两队纠纷不断，多次发生争斗事件，严重影响当地治安。为此，南昌铁路运输检察院曾向南站街道办制发检察建议书，针对其在规范管理、宣传引导和调解疏导等方面存在的问题，提出了改进工作、完善治理的检察建议。后又积极协助南站街道办落实检察建议，指派检察官支持配合南站街道办的调解工作。本着贯彻新时代“枫桥经验”，能动办案，诉源治理，举行听证会时，办案组还邀请了南站街道办、南昌铁路公安局南昌公安处治安支队、中国铁路南昌局集团有限公司政法办公室及退休管理科等部门的负责人，一并参加听证。听证会上，南昌铁路运输检察院检察长介绍了检察建议的制发和督促落实情况，南站街道办、南昌铁路公安局南昌公安处治安支队、中国铁路南昌局集团有限公司政法办公室及退休管理科等部门的负责人就检察建议落实情况、矛盾纠纷化解工作说明了情况。
后续工作。听证会后，江西省人民检察院继续做双方当事人和广场舞队场地纠纷调解工作，跟进落实检察建议。2020年6月28日，承办检察官向申诉人董某某送达了刑事申诉审查结果通知书，认为南昌铁路运输检察院对徐某某作不起诉处理符合法律规定，申诉人董某某的申诉理由不能成立，不予支持。在检察机关的见证下，董某某和徐某某签署《和解协议》，徐某某向董某某支付15000元补偿款，董某某不再就其人身损害问题申请追究徐某某的刑事责任，息诉罢访。2020年8月4日，两支广场舞队决定自主划分活动场地，邀请检察机关、南站街道办、南昌铁路文化宫等负责同志到场见证。检察机关办案人员再次对两支广场舞队代表进行法制教育，劝说她们和气共处、互谅互让、互相尊重，做好自我管理，自觉接受南昌铁路文化宫、社区、街道办等单位的管理。目前，两支广场舞队均在各自的场地划分区域开展活动，广场呈现安定平和景象。
【指导意义】
(一)人民检察院办理群众之间积怨较深、难解的“小案”，应当通过检察听证消除误会积怨，引导双方和解。因民间矛盾、邻里纠纷等引发的轻伤害案件常见多发，许多是典型的“小案”，但当事人申诉比例很高。究其原因，主要在于一些案件简单“依法”办理，走完诉讼程序，刑事和解、多元化解、释法说理等工作没有做到位，致矛盾激化，甚至存在诱发严重刑事案件的可能。对于此类案件，人民检察院拟作出不起诉决定时，应当举行检察听证，向当事人充分释法说理，将双方当事人的责任，犯罪嫌疑人是否构成犯罪的证据和法律依据、应当承担的损害赔偿等处理意见阐述清楚，引导双方当事人就民事赔偿达成和解，为当事人接受不起诉决定奠定基础。对于因释法说理和矛盾化解不到位导致反复申诉的“小案”，人民检察院也应当通过检察听证搭建沟通化解的平台，让申诉人有理能讲、有怨能诉、有惑得释，在摆事实、讲证据、释法理的基础上积极引导双方达成谅解，从而化解矛盾纠纷。
(二)人民检察院应当结合办案依法能动履职，积极促进社会治理。不少久诉不息的刑事申诉案件背后，都存在社会治理薄弱环节和突出问题。人民检察院在办理刑事申诉案件过程中，要自觉践行新时代“枫桥经验”，立足于法律监督定位，依法能动履职，对申诉案件反映出的社会治理不完善问题，通过制发检察建议推动解决。对于与案件处理有重要关系的问题，可以邀请相关主管部门负责人参加听证会，就案件处理和完善治理，就地化解矛盾、防范同类案事件发生等发表意见建议，协助案件的妥善处理。听证会后，要督促落实检察建议，积极促进综合治理，实现社会和谐稳定。
【相关规定】
《中华人民共和国刑事诉讼法》(2018年10月26日修正)第一百七十五条第四款、第一百八十条
《人民检察院刑事诉讼规则》(2019年12月30日施行)第三百六十七条、第三百六十八条、第三百七十七条、第三百八十二条
《人民检察院办理刑事申诉案件规定》(2020年9月22日施行)第三十八条、第四十二条、第四十三条
《人民检察院审查案件听证工作规定》(2020年9月14日施行)第四条、第十三条、第十七条
董某娟刑事申诉简易公开听证案
(检例第161号)
【关键词】
刑事申诉 自诉案件 简易公开听证 现场释惑 心理疏导
【要旨】
检察机关办理申诉人走访申诉的案件，可以在12309检察服务中心等申诉案件办理场所举行简易公开听证，由检察官和听证员现场解答申诉人关于案件事实认定、证据采信和法律适用等方面的疑问。心理咨询师可以作为听证员或者辅助人员，参与检察听证，有针对性地给予申诉人专业化的心理疏导，纾解其心结，增强释法说理效果，促进矛盾化解、案结事了。
【基本案情】
申诉人董某娟，系王某某故意伤害案的自诉人。
2014年9月16日，董某娟因家庭矛盾与刘某甲(董某娟之嫂)、刘某乙(刘某甲之妹)发生口角和推搡。途经案发地并与刘某甲相熟的王某某见状，用拳数次击打董某娟鼻部，导致董某娟先后住院治疗21天，医疗费等各项经济损失共计15841.08元。经鉴定，董某娟的损伤程度为轻伤二级，十级伤残。董某娟以刘某甲、刘某乙、王某某犯故意伤害罪为由，向吉林省四平市铁西区人民法院提起自诉。2015年12月31日，四平市铁西区人民法院判决被告人刘某甲、刘某乙无罪；被告人王某某犯故意伤害罪，判处有期徒刑六个月，赔偿董某娟15841.08元。董某娟不服，认为刘某甲、刘某乙、王某某系共同犯罪，不应当只追究王某某的刑事责任，也应当追究刘某甲、刘某乙的刑事责任，提出上诉。2016年4月28日，四平市中级人民法院裁定驳回上诉，维持原判。董某娟仍不服，先后向四平市人民检察院和吉林省人民检察院申诉。两级检察院经审查，均认为原审裁判认定事实清楚，证据确实充分，适用法律正确，申诉人申诉理由不成立，予以结案。申诉人仍不服，到最高人民检察院12309检察服务中心走访申诉。
【检察听证过程】
听证前准备。最高人民检察院12309检察服务中心信访接待检察官受理案件后，初步审查并与申诉人沟通交流后认为，原审裁判认定事实清楚，证据确实、充分，定性准确，处理适当。两级检察机关的处理决定正确。本案系发生在亲属之间的矛盾纠纷案件，案情简单，申诉人之所以不服原审裁判及检察机关处理结论持续申诉的原因是，原案办理时未充分和清晰播放现场监控录像，没有就关键视频影像逐一进行说明质证，也未对申诉人进行充分的释法说理。两级检察机关在审查本案时，亦未对申诉人充分释法说理。因此，申诉人不信任司法机关的处理结论，不断信访申诉。
为回应申诉人的疑问，解开其“心结”，检察官在征得董某娟本人同意后，决定在12309检察服务中心举行简易公开听证。为依法有据向申诉人释法说理，检察官委托四平市铁西区人民检察院到四平市铁西区人民法院调取案发现场监控录像，查阅相关案例，为公开听证做好准备。由于调取案发现场监控录像需要时间，检察官与申诉人约定了简易公开听证的时间。
公开听证。2021年6月9日，董某娟刑事申诉案简易公开听证会在最高人民检察院12309检察服务中心召开，由当天在12309检察服务中心值班的律师、心理咨询师和从最高人民检察院控告申诉检察专家咨询库中邀请的一名刑事律师，共三人担任听证员。为纾解申诉人的对立情绪和消极心态，听证会前，在检察官的主持下，心理咨询师与申诉人进行了沟通交流，给予心理疏导。
听证会上，检察官播放了案发现场监控录像，就申诉人申诉的关键环节逐帧播放，向申诉人详细分析讲解案发时的情况。监控录像证实，董某娟与刘某甲、刘某乙发生口角，进而相互撕扯、踢踹，但并未伤及董某娟鼻子部位；随后，王某某来到案发现场，用拳击打董某娟，致董某娟鼻子受伤。检察官指出，刘某甲、刘某乙与董某娟之间因家庭矛盾引发争执，进而发生撕扯、踢踹等行为，双方在冲突过程中没有使用凶器，能够保持一定的克制，均不具备伤害对方的主观故意，不属于刑法意义上的故意伤害行为。王某某路过案发现场后，用拳击打董某娟头面部，其击打力度、击打部位和损害后果已经达到了严重损害人体健康的程度，属于刑法意义上的故意伤害行为。没有证据证实王某某与刘某甲、刘某乙事先、事中有通谋。检察官还结合原审裁判文书中被告人王某某供述、申诉人董某娟的陈述以及现场目击证人证言等证据，从证据采信、事实认定、法律适用等方面逐一回应申诉人的疑问。
听证员围绕案发起因、共同犯罪认定、诉讼程序适用等焦点问题发表了专业、客观的意见，一致认为，原审裁判并无不当，申诉人的申诉理由不能成立，并对申诉人进行了劝慰。
The hearing made the complainant's doubts clear for many years, opened his heart, and took the initiative to express his belief in the fairness and impartiality of the law, accept the decision of the judicial organ, and dismiss the complaint.
Follow-up.
The Supreme People's Procuratorate made a decision in accordance with the law, and entrusted the procuratorate where the complainant was located to deliver the notice of the result of the criminal complaint to Dong Moujuan, and explained the law to her again.
At the same time, in light of his family difficulties and other factors, the complainant's local prosecutor's office will provide him with appropriate judicial assistance.
Dong Moujuan took the initiative to sign an agreement on interest and appeal, and a case that had been appealed for 6 years was successfully resolved.
【Guiding significance】
(1) The people's procuratorate may hold a brief public hearing according to the circumstances of the case in which the complainant visits and appeals.
Simple public hearing is an innovative way for procuratorial organs to handle criminal complaint cases and resolve conflicts and disputes.
After reviewing the complaint materials, relevant legal documents, etc., the undertaking prosecutor believes that the judicial organ's decision to handle the original case is not inappropriate, but if the complainant has not fully explained the law and reasoned, he can make a complaint at the 12309 Procuratorial Service Center, etc. immediately or by appointment. A brief public hearing was held at the case handling site, and the hearing officer and the prosecutor fully explained the law and reasoned to the complainant, so as to eliminate the complainant's doubts about the judicial organ's handling decision.
A simplified public hearing is a simplification of ordinary hearing procedures. Generally, there is no need to formulate a hearing plan, issue a hearing announcement, etc., and usually there is no need to invite the respondent, the original case handler, etc. to participate in the hearing.
The public prosecutors, complainants and hearing officers who deal with criminal complaints are mainly present at the summary public hearings.
Hearing officers can be composed of lawyers and psychological consultants who are on duty at the 12309 Procuratorial Service Center on that day, usually 3 people.
During the hearing process, the hearing officer may adjourn the meeting for deliberation, or may directly express opinions.
(2) For petitioners who have long-term complaints, strong opposition and negative mentality due to insufficient interpretation of the law and the lack of effective resolution of contradictions during the handling of the original case, a psychological counselor may be invited to intervene and provide psychological counseling for the petitioner. Work.
Psychological consultants participate in the procuratorial hearing as a hearing officer, or participate in the hearing process as an auxiliary person, and conduct professional psychological counseling in a targeted manner, which can effectively calm the complainant's mentality, enhance the effect of interpretation and reasoning, and promote conflict resolution.
【Regulations】
Article 234 of the Criminal Law of the People's Republic of China
Articles 2 and 4 of the Provisions on the Hearing of Cases Reviewed by the People's Procuratorate (effective on September 14, 2020)