People's Procuratorate of Dingyuan County, Anhui Province

Criminal protest

Ding Jian Yi Bu San Xing Kang [2019] No. 1

      The People's Court of Dingyuan County (2019) Wan 1125 Xing Chu No. 66 Book to defendant Xie Moujia, etc thirteen Person suspected Crime of organizing, leading and participating in underworld organizations, extortion and other crimes Judgment: The defendant Xie Moujia commits the crime of organizing and leading a triad organization, and is sentenced to seven years and six months of imprisonment, three years of deprivation of political rights, and confiscation of all personal property; Whoever commits the crime of extortion shall be sentenced to fixed-term imprisonment of five years and six months, and shall also be fined 150000 yuan; Whoever commits the crime of provoking trouble shall be sentenced to three years' imprisonment; Whoever commits the crime of fraud shall be sentenced to fixed-term imprisonment of two years and six months, and shall be fined 30000 yuan; Whoever commits the crime of official embezzlement shall be sentenced to fixed-term imprisonment of two years and six months; Whoever commits the crime of illegally occupying agricultural land shall be sentenced to one year's imprisonment and a fine of 100000 yuan; If he commits the crime of forced labour, he shall be sentenced to criminal detention for six months and fined 10000 yuan; It was decided to execute a fixed-term imprisonment of 18 years, deprivation of political rights for three years, and confiscation of all personal property. The defendant Ye Moujia was sentenced to three years and six months' imprisonment and a fine of 150000 yuan for the crime of joining a triad organization; Whoever commits the crime of extortion shall be sentenced to one year's imprisonment and a fine of 10000 yuan; Whoever commits the crime of provoking trouble shall be sentenced to one year's imprisonment; whoever commits the crime of illegal occupation of agricultural land shall be sentenced to eight months' imprisonment and a fine of 50000 yuan; Whoever commits the crime of shielding shall be sentenced to six months' imprisonment; It was decided to serve six years of fixed-term imprisonment and to impose a fine of 200000 yuan. The defendant Shen Moujia was sentenced to three years and three months' imprisonment and a fine of 100000 yuan for the crime of participating in underworld organizations; Whoever commits the crime of extortion shall be sentenced to fixed-term imprisonment of three years and three months, and shall also be fined 80000 yuan; It was decided to serve six years of fixed-term imprisonment and to impose a fine of 180000 yuan. The defendant Shen Mouyi was sentenced to two years' imprisonment and a fine of 80000 yuan for the crime of participating in underworld organizations; Whoever commits the crime of extortion shall be sentenced to three years' imprisonment and a fine of 70000 yuan; It was decided to execute a fixed-term imprisonment of four years and six months and to impose a fine of 150000 yuan. The defendant, Ye Mouyi, was sentenced to two years' imprisonment and a fine of 80000 yuan for the crime of participating in underworld organizations; Whoever commits the crime of extortion shall be sentenced to eight months' imprisonment and a fine of 5000 yuan; Whoever commits the crime of illegally occupying agricultural land shall be sentenced to eight months' imprisonment and a fine of 50000 yuan; It was decided to serve three years of fixed-term imprisonment and to impose a fine of 135000 yuan. The defendant Yao was sentenced to one year's imprisonment and a fine of 50000 yuan for the crime of participating in underworld organizations; Whoever commits the crime of extortion shall be sentenced to two years' imprisonment and a fine of 50000 yuan; It was decided to execute a fixed-term imprisonment of two years and six months and to impose a fine of 100000 yuan. The defendant, Xie, was sentenced to one year and six months' imprisonment for the crime of causing trouble; Whoever commits the crime of defrauding loans shall be sentenced to fixed-term imprisonment of one year and six months, and shall also be fined 200000 yuan; It was decided to execute a fixed-term imprisonment of two years and six months and to impose a fine of 200000 yuan. The defendant, Xie Mou C, was sentenced to one year and three months' imprisonment for the crime of causing trouble. The defendant, Wei, was sentenced to one year and three months' imprisonment for the crime of causing trouble. The defendant, Xie Mouding, was sentenced to one year's imprisonment for the crime of causing trouble. The defendant, Xie Mouwu, was sentenced to one year's imprisonment for the crime of causing trouble. The defendant, Yan, was sentenced to one year's imprisonment for the crime of provoking trouble. The defendant Shen Mou C, who committed the crime of extortion, was sentenced to one year's imprisonment and a fine of 30000 yuan. After reviewing in accordance with the law, the Court believed that the judgment was wrong in finding facts and applying the law, and the crime and punishment were incompatible. The reasons are as follows.

1、 The court decided that it was wrong to identify the defendant Shen Mouyi as an ordinary participant in a criminal organization of underworld nature.  

（1） Shen Mouyi participated in deliberately destroying property, extorting and stealing cattle man Wang Mouyi in the underworld organization headed by Xie Moujia, and showed outstanding performance in the crime;

（2） Shen has a close relationship with Xie at ordinary times;

（3） Shen Mouyi, Xie Mouyi, Xie Moujia's younger brother, Xie Mouyi, and his sons Xie Mouding and Xie Mouwu jointly monopolize the village project, and gain economic benefits by virtue of Xie Moujia's village secretary's power and his underworld organization force;

（4） Shen Mouyi helped the tyrant and forced the villager Shen Mouding who reported Xie Moujia to kneel down to Xie Moujia at Xie Moujia's house;

（5） In order to build a house smoothly, Liu, a villager, knew that Shen and Xie had a close relationship and bribed Xie through Shen six thousand Yuan;

（6） Shen Mouyi, under the command of Xie Moujia, participated in extorting villagers' burial fines.

The above illegal and criminal facts prove that the defendant Shen Mouyi has participated in many illegal and criminal activities in the underworld organization led by Xie Moujia, which is outstanding. According to the judicial interpretation, in the underworld organization crime, the illegal and criminal facts are the basis for conviction and sentencing of the underworld organization crime. From the comprehensive evidence of the whole case, the defendant Shen Mouyi has participated in the number of illegal crimes and played a more important role in the illegal crimes than the defendant Shen Moujia. However, the judicial organ identified the defendant Shen Moujia as an active participant in the criminal syndicate, and identified the defendant Shen Mouyi as an ordinary participant, which is inconsistent with the factual evidence, The defendant Shen Mouyi should be identified as an active participant of a triad organization.

2、 The court ruled that Xie XX B, Xie XX C, Xie XX Ding and Xie XX Wu did not constitute the crime of participating in underworld organizations.

（1） The testimony of the existing witness confirmed that Xie Mouyi cheered Xie Moujia in the 2014 general election of Binhu Village and played a role in Xie Moujia's smooth and continuous tenure as village secretary;

（2） Documentary evidence, witness witness, confession of Xie Moujia, confession of several other accomplices Xie Mouyi, Xie Mouding, Xie Mouwu monopolized the digging machine project in Binhu Village, received subsidies from village accounts in the name of straw burning ban watchman, and illegally obtained economic benefits;

（3） Xie Moubing illegally used the funds from the superior of Binhu Village to strengthen the collective economy for poverty alleviation;

（4） When four people beat the victim Xu under the command of Xie, Xie played an important role in the crime; Xie Mou C rallied social workers Wei Mou and Yan Mou to participate in beating Xu Mou. Among them, Wei Mou, the person who was rallied, played an important role in the crime. In the crime of beating Xu to provoke trouble, the defendants Xie Mou B, Xie Mou C, Xie Mou Ding and Xie Mou Wu gathered at the scene of the crime in a short time. Under the command of Xie Mou A, they all held unified wooden sticks to chase, abuse and intimidate the father and son of the victims, proving that the defendants Xie Mou B, Xie Mou C, Xie Mou Ding Xie Mouwu and Xie Moujia criminal organizations are closely linked.

（5） The testimony of many witnesses, the statement of the victim, and the statement of the defendant can all prove that Xie's underworld criminal organization has three forces and is divided into three levels: Xie is arbitrary, overbearing, and has served as the village secretary for nearly 20 years. He has made no difference in the village committee of * * Village and in his criminal organization, and is recognized as the leader in the eyes of village cadres and members of criminal organizations, Xie Moujia organized, led and participated in all illegal and criminal activities in this case; Xie Moujia excluded dissidents from the village committee of * * Village, and placed and enlisted members of his criminal organization into the village committee to control the grass-roots political power of the village. The cadres of the two committees of * * Village are all those who listen to Xie Moujia's words. These people, in order to seek illegal interests, organized many violent and threatening crimes under the command of Xie Moujia; Xie's brother, son and others participated in some illegal and criminal activities of Xie's criminal organization, becoming an important force for villagers to fear Xie's underworld criminal organization. Xie used his underworld organization force and family force to organize underworld illegal and criminal activities for many times, seriously infringing the interests of villagers in * * Village.

The above factual evidence proves that the defendants Xie XX B, Xie XX C, Xie XX D, Xie XX Wu are closely connected with Xie XX A's underworld criminal organization, and four people should be investigated for criminal responsibility for the crime of participating in underworld organizations.

3、 The court ruled that Xie, Shen, and Shen did not constitute an error in intentionally destroying property, for the following reasons:

（1） The documentary evidence confirms that in 1995, the National Family Planning Commission (Guo Ji Sheng Zheng Zi [1995] No. 138) stipulated that it is not allowed to destroy the family property, crops and houses of those who violate the family planning regulations.

（2） The testimony of many witnesses, the confession of Shen Mouyi and the confession of Xie Moujia all confirmed that Xie Moujia, in the name of family planning, commanded Shen Mouyi, Shen Moujia and others to demolish three houses of the villager Gao Mouyi's family, and then pulled the demolished stones to the road privately contracted by Xie Moujia for use as building materials.

（3） The price appraisal in this case has the force of evidence and has the force of proof.

1. In this fact, the subject of price appraisal is legal, the appraisal procedure is legal, and has evidential effect.

2. For the property involved in the case that has been lost, the appraisal institution shall appraise it according to the similar physical form materials, which conforms to the rules of evidence.

3. Article 19 of the Regulations of Anhui Province on Price Appraisal of Property Involved in Cases (implemented on December 1, 2008) issued by the Standing Committee of the People's Congress of Anhui Province stipulates that for property involved in cases that have been lost or changed in form, price appraisal institutions can conduct price appraisal according to the evidence materials recognized by the case handling authority and the price level of similar physical forms on the benchmark date of price appraisal.

4. Defendants Xie Moujia, Shen Mouyi and Shen Moujia constitute the crime of intentional destruction of property

(1) Xie Moujia, the defendant of this crime, is the organizer and leader, and later organized and directed many other illegal and criminal activities. Xie Moujia certainly constitutes the crime of intentional destruction of property.

(2) Shen Mouyi, under the command of Xie Moujia, participated in the intentional destruction of Gao's house, which constituted the crime of intentional destruction of property.

(3) Shen Moujia argued that he was no longer in the village and did not participate in the crime, but several witnesses testified that he participated in the crime at the scene of the crime. If he does not work in the village, it cannot be proved that he was not at home at that time; The evidence proves that Xie got a number of villagers, including Shen and B, into the village committee for their use. None of them had any post in the village, and they participated in many illegal and criminal activities under Xie's command.

4、 Some of the principal and subordinate committed identification errors and improper sentencing.

（1） The court ruled that Xie Moujia was the principal offender, Yao Moumou, Shen Mouyi and Shen Moujia were accomplices in the crime of extorting Wang Moumou. The evidence proves that the defendants Yao Moumou, Shen Mouyi and Shen Moujia worked together with Xie Moujia in the crime of extortion. They cooperated with each other and played the same role. The principal and accessory offenders should not be distinguished. In particular, the defendant Shen Mouyi played a prominent role in the crime of extortion, and the court made a mistake in finding the facts and applying the law.

（2） The court ruled that the defendants Xie Mouyi, Xie Moubing and Wei Moumou committed accessory mistakes in the provocation. The evidence proves that the defendants Xie XX B and Wei XX played an important role in the crime, which should belong to the principal criminals. The defendants Xie XX C mustered Wei XX and Yan XX to chase the victim with a stick, which played an important role in the crime. Xie XX B, Xie XX C and Wei XX should not be identified as accomplices. The court found the facts, applied the law wrongly, and sentenced improperly.

To sum up, the judgment of the People's Court of Dingyuan County was wrong in determining the facts and applying the law, and the crime and punishment were not suitable. The judgment did not reflect the strict control of the underworld organization crime in the judicial interpretation, which was inconsistent with the current situation of the ongoing fight against underworld and evil. In order to maintain judicial fairness and accurately punish crimes, we hereby lodge a protest in accordance with the provisions of Article 228 of the Criminal Procedure Law of the People's Republic of China and apply for a sentence according to law.

Sincerely

Chuzhou City, Anhui Province Intermediate People's Court

May 6, 2019

Attachment: The defendants Xie XX A and Yao XX are now in custody in Chuzhou Detention Center; the defendants Ye XX A, Shen XX A, Shen XX B, Ye XX B, Xie XX B, Xie XX Ding, Xie XX Wu, Wei XX, Yan XX, Shen XX C are now in custody in the Detention Center of Dingyuan County; the defendants Xie XX C are now living under surveillance at No. * * Group * * Village * * Town, Dingyuan County.