People's Procuratorate of Shucheng County, Anhui Province

Criminal protest

Comfortable examination Litigation XK [2019] No. 3

On June 28, 2019, the People's Court of Shucheng County, Anhui Province issued a first instance judgment on the case of five defendants, namely, Li, Qin, Wei, Wei and Lu, who were suspected of extortion, with a criminal judgment of (2019) Wan 1523 Chu No. 109, and sentenced Li to 10 months' imprisonment and a fine of 3000 yuan for the crime of extortion; The suspended sentence of six months' imprisonment and one year's probation for Li Moumou's intentional injury crime was rescinded, and the punishment was combined for several crimes. It was decided to execute a one-year fixed-term imprisonment and a fine of 3000 yuan was imposed; Qin was sentenced to nine months' imprisonment and a fine of 3000 yuan; Wei was sentenced to eight months' imprisonment, suspended for one year and fined 2000 yuan; Wei was sentenced to eight months' imprisonment, suspended for one year and fined 2000 yuan; Lu was sentenced to seven months' imprisonment, suspended for one year and fined 1000 yuan. After legal review, the Court believes that the sentencing of Mr. Li in this judgment is obviously improper and the application of law is indeed wrong, so it should lodge a protest. The reasons are as follows:

1、 In the first instance, Li was sentenced to 10 months' imprisonment and a fine of 3000 yuan for extortion, which was obviously improper.

On March 30, 2018, the defendant, Mr. Li, was sentenced by the People's Court of Feixi County to six months' imprisonment and one year's probation for intentional injury. In June 2018, Li planned to extort the victim Chang who sold fake wine, and bought security style clothes online on June 4. In October of the same year, he contacted Chang via QQ software to buy fake wine. On October 25, Mr. Li cheated Mr. Chang and others from Hefei to Shucheng on the ground of safe delivery, and gathered the defendants, Mr. Qin, Mr. Wei A, Mr. Wei B, and Mr. Lu, to drive to Shucheng and divide the work among them. At about 21:00 on the same day, Mr. Chang and three friends drove in a remote area of * * District, Shucheng County, waiting for delivery. Mr. Li arranged Mr. Qin and Mr. Wei to meet Mr. Chang. Mr. Li, together with Mr. Wei and Mr. Lu, pretended to be Hefei police in security uniforms and "captured" Mr. Chang at the scene. Three friends of Mr. Chang drove away from the scene. Then Mr. Chang was taken to the second scene. Mr. Li and others, acting as police, demanded RMB 5000 from Mr. Chang on the spot for selling fake liquor, and "detained" more than 80 cases of Mr. Chang's mobile phone, a van, and liquor (Gujing Year Original Pulp Gift Edition), with a criminal amount of 22336 yuan. 2018 On November 17, Li was captured by the police of Feixi County Public Security Bureau at his residence.

The Court believes that the defendant, Li Moumou, mustered many people during the probation period for probation, prepared uniforms in advance, pretended to be a policeman to control the personal freedom of others, and claimed other people's property on the ground of selling fake alcohol. The amount is large and the circumstances are serious. Based on the facts, nature, circumstances and social harmfulness of Li's crime, When sentencing, consider that the range of lenient punishment such as Li's confession of guilt and punishment should be limited. It should be determined that the sentence of extortion is more appropriate to be announced at a fixed term of imprisonment of more than one year and six months. The first trial decided that Li was sentenced to 10 months of fixed-term imprisonment for extortion, with a fine of 3000 yuan. The sentencing was obviously improper.

2、 There was a definite error in the application of the law to the judgment of first instance.

On May 14, 2019, in accordance with the provisions of Article 174 of the Criminal Procedure Law of the People's Republic of China, the defendant, Mr. Li, voluntarily pleaded guilty during the stage of examination and prosecution in our court, agreed to the sentencing proposal, and signed a written statement of guilty plea and punishment in the presence of the defender. In view of the fact that the defendant Li Moumou voluntarily and truthfully confessed his crime and pleaded guilty to punishment, the Court, in accordance with the provisions of Article 15 and the second paragraph of Article 176 of the Criminal Procedure Law of the People's Republic of China, proposed according to law that the defendant Li Moumou be sentenced to fixed-term imprisonment of one to two years and a fine for the crime of extortion.

Article 201 of the Criminal Procedure Law of the People's Republic of China stipulates that when a people's court makes a judgment according to law on a case of confession of guilt and punishment, it shall generally adopt the charges and sentencing suggestions charged by the people's procuratorate. If the people's court considers that the sentencing proposal is obviously inappropriate after trial, or the defendant or defender raises an objection to the sentencing proposal, the people's procuratorate may adjust the sentencing proposal. If the People's Procuratorate does not adjust the sentencing recommendation or it is still obviously inappropriate after adjusting the sentencing recommendation, the People's Court shall make a judgment according to law.

In the court trial stage of this case, the defendant Li Moumou and his defender confirmed the authenticity and legality of the content of the written statement of confession and punishment, and had no objection to the sentencing proposal. In the first instance, Li was sentenced to 10 months' imprisonment and a fine of 3000 yuan for extortion. The court of first instance did not adopt the sentencing proposal of the court in accordance with the provisions of Article 201 of the Criminal Procedure Law of the People's Republic of China, nor did it suggest that the court adjust the sentencing proposal before making a judgment. It was wrong to apply the law.

To sum up, the People's Court of Shucheng County, in accordance with the provisions of Article 228 of the Criminal Procedure Law of the People's Republic of China, has protested against the criminal judgment of first instance made by the defendant Li Moumou in order to maintain judicial fairness and accurately punish crimes, because the sentencing was obviously improper and the application of law was indeed wrong.

Sincerely

Intermediate People's Court of Lu'an City, Anhui Province

July 5, 2019

Attachment: 1. Defendant Li is currently in custody in Shucheng County Detention Center;

2. Two volumes of the file have been transferred to the People's Court of Shucheng County, Anhui Province.