According to the indictment, Lawyer Lin Xiaoqing is in prison for providing legal services by Qinghai Hechuang Huizhong Automobile Service Co., Ltd. (hereinafter referred to as Qinghai Hechuang Company), which is accused of evil force criminal syndicate. The indictment accuses Qinghai Joint Venture Company of illegally granting loans between May 2017 and January 2018, and of using deception, intimidation, threats, harassment, malicious litigation and other means to carry out illegal and criminal activities such as fraud, extortion, provocation, forced transaction, and defraud the victims property. In July 2017, Mr. Lin Xiaoqing was hired as a legal adviser by Qinghai Joint Venture Company to provide legal services to the company.
Qinghai Joint Venture Company was charged with several fraudulent and extortion acts through routine loans, while Lin Xiaoqings lawyer was identified by the procuratorial organ as an assistant offender of fraud and extortion.
The indictment accuses Lawyer Lin of being an important member of a criminal group of evil forces, so he is responsible for all the fraudulent acts of the criminal group of evil forces. At the same time, Lawyer Lin acted as the legal adviser of Qinghai Co-venture Company and extorted Luole by filing a lawsuit in court.
According to the defense opinions issued by the defender in the case, the prosecutor believes that the famous brand of lawyer Lins legal adviser is placed in Qinghai Co-venture Company, which strengthens the criminal will of the members of the criminal group. The status of lawyer Lins legal adviser provides psychological support for the criminals, that is, to help the accomplices of the criminal group.
If the defense opinion accurately reproduces the public prosecutors opinions, then it is reasonable to think that the public prosecution organs lack sufficient understanding of the crime of evil forces and the particularity of the lawyer profession.
From the point of view of conviction, it is very easy to identify the objective help to the evil forces. The delivery of takeaway brothers, drivers hired to drive, jewelry stores selling big gold chains, tattoos, violent scenes in movies and TV dramas, and even photographs and ink of leaders all objectively provide physical help or psychological encouragement for the evil forces.
If this approach is adopted, the identification of helping behavior is almost equal to the arbitrary action. However, the criminal law theory generally holds that the above-mentioned acts belong to the neutral helping acts in daily life, not to the harmful acts in criminal law. In this regard, the Opinions on Several Questions Concerning the Handling of Criminal Cases of Evil Forces, published on April 9, 2019 by LiangGao and LiangGao, also pointed out that those who are only temporarily employed or employed, exploited or used, and who are deceived to participate in a small number of illegal and criminal activities of evil forces should not generally be recognized as members of evil forces.
Although lawyersprofessional behavior is different from that of neutral assistance, they also enjoy extensive criminal immunity. In the theory of criminal law, lawyers professional behavior belongs to legitimate business, which is an important cause of crime.
Doctors perform surgical operations on patients. Boxers injure others in competitions. On the surface, it fully conforms to the constituent elements of the crime of intentional injury. However, as long as the perpetrator follows the business rules, the criminality of the action can be ruled out.
Like medical and competitive acts, lawyers enjoy criminal immunity as long as they do not violate laws and business rules. At the stage of debate, the public prosecutor once believed that the Lawyer Law only stipulates that lawyers should keep confidential the relevant information and information that clients who know in practice are unwilling to disclose. Here only refers to the situation and information that the principal is unwilling to disclose, not the fact of the principals violation of the law and crime. There is no such exemption from practice for the clients criminal acts.
This understanding is obviously an overly narrow understanding of lawyerscriminal immunity. For private rights, law can be prohibited without prohibition and for public power, law can be prohibited without authorization, which is the basic spirit of the rule of law. Lawyersbusiness is not a public right. Therefore, it is a misunderstanding of the rule of law to think that lawyers can only engage in the business permitted by law. On the contrary, the correct understanding is that as long as the law is not prohibited, lawyers can engage in legitimate business, they will enjoy the natural criminal immunity.
The evil forces are the embryonic form of the underworld organizations, so it is necessary to attack them. But the black and evil forces are not 100% black, sometimes there may be a gray zone between black and white.
According to the criminal law, the establishment of underworld-like organizations must have four characteristics: organizational, economic, destructive and confrontational, which are indispensable. For the economic characteristics of underworld organizations. The law stipulates that to obtain economic benefits through illegal and criminal activities or other means, and to have certain economic strength, in order to support the activities of the organization. Mafia-type organizations can pursue economic interests not only through illegal and criminal activities such as smuggling, drug trafficking, kidnapping and robbery, but also through normal economic activities such as opening companies and enterprises.
Since mafia-like organizations are likely to engage in normal economic activities, the evil forces as their embryonic form are more likely to engage in normal economic activities.
For the normal economic activities carried out by evil forces, the industrial and commercial departments may issue legal business licenses, and the tax authorities may collect taxes normally. If lawyers provide legal services for these normal economic activities, it is not appropriate to deal with crimes.
According to the defense opinion, the logic of the prosecutor is that since Lawyer Lin is a perennial legal adviser, then the legitimacy of the companys business should be examined and the criminal facts of the company should be discovered. In this regard, the public prosecutor first confused the boundaries between intent and negligence, believing that lawyers are obliged to discover the facts of the companys crime, but because of negligence, it can only be said that lawyer Lin has negligence, but in any case can not deduce intent. Moreover, even according to the logic of the public prosecutor, it is difficult to realize that advisory units have black and malignant qualities if they only provide legal advisory services to the legal economic business of evil forces, whether from the standpoint of the general public, the standpoint of the general lawyer or even the standpoint of the criminal law expert, unless they open the vision of God.
Requiring lawyers to provide legal services for every enterprise while exploring whether the enterprise is involved in criminal activities is obviously too demanding for the lawyer profession. Imagine that even state organs cant judge the nature of evil from the economic behavior of organizations. How can lawyers be expected to make such a judgment? Therefore, lawyers should only be responsible for the legal business they serve, and there is no need to assume undue responsibility for acts other than business. As long as lawyers do not violate the law in their business, they should not be held accountable. Imagine that when a doctor treats a tattoo patient with a golden chain, even if the doctor knows that the patient is a member of the black and evil forces, something will happen after the treatment. Even if the patient commits serious criminal acts afterwards, does the doctor constitute help? Or, have the courts ever made judgments on apparently legitimate routine loans, and should they also retract their responsibilities and regard them as helpers of evil and black forces? If so, the stability of any profession will be shaken.
Therefore, lawyers should not assume that they understand the law and have a clear understanding of whether the institutions they serve belong to the black and evil forces. If so, the lawyers business consultancy service will almost stagnate. How can lawyers know the real intention and development direction of the enterprise only by limited participation in the organization? Even the judgment of the judicial organs on the evil forces still needs time to identify and judge. Lawyers who are not deeply involved in the case can not easily know. There is no need to equate lawyers with ex post facto Zhuge Liang. As long as there is insufficient evidence to prove that lawyers have participated too much in the work of the evil forces, it is impossible to presume that lawyers can recognize that the enterprises they serve belong to the evil forces.
There has always been a misunderstanding that lawyers take money and help the bad, while the judiciary is dedicated to the public and fight against the bad; the two are opposed, the former for private, and the latter for public - even if the fight against the bad is excessive, it can always find a defense in the word for the public. But what is bad man? People who hold this view tend to draw their own conclusions rather than go into them.
People like to explore other peoples inner motivation, but people are not God, can not read the heart. In Macbeth, Shakespeare warns us that so far, people have not been able to read peoples hearts from other peoples faces. Therefore, we do not have the ability and need to judge the hearts of others.
The presumption of innocence is the basic principle of a country ruled by law. No one can be convicted without being judged by the peoples court according to law. Therefore, it is not easy to label people as bad people, If you want to add to the crime, you cant help it, which is the historical experience of human beings formed in grievances and blood tears.
After World War II, Xiao Qian, a well-known writer, interviewed the Far East International Court of Justice. He did not understand why the court allowed lawyers to defend the wicked war criminals until he was beaten to the right. In the trial of the Far East International Court of Justice, every war criminal had a lawyer to defend him. Few war criminals objected to the courts judgment, but in the Anti-Rightist period, no rightist could ask a lawyer to defend him. The rectification of chaos after the Cultural Revolution proved that almost all right-wing judgments were wrong.
I have told Xiao Qians story many times in the column. Truth has no original meaning, so this is why it is often called cliche.
Any legal person should clearly realize that judicial organs and lawyers belong to the same legal profession. Their goals are the same, and they are all for the sake of safeguarding the dignity of the law. Defense is not only to protect innocent citizens, but also to ensure the justice of the judiciary. It is precisely because lawyers constantly make mistakes to the judicial organs that the justice of judicial judgment can be guaranteed. Without defense, it will be very difficult for us to escape the whirlpool of sports law enforcement, Nie Shubin case, Huge Jile pattern, She Xianglin case and Zhao Zuohai case will continue to emerge. When law enforcement officers are accustomed to the simplicity and rudeness of sports law enforcement, it is difficult to cultivate respect and awe for the rules.
Of course, it is necessary to eradicate the evil, but it must be carried out under the track of the rule of law. Only the rule of law can prevent the anti-black and anti-evil degeneration into a new campaign law enforcement. This is why on April 9, 2019, the two ministries of senior high schools and senior high schools issued four normative documents, to provide a more solid legal guarantee for punishing the illegal and criminal activities of the black and evil forces according to law, and to ensure that the special struggle against black and anti-evil always develops healthily on the track of the rule of law.
Lawyer system is an important part of the construction of the rule of law, and it is also an important guarantee to ensure that the elimination of evil will not deviate from the track of the rule of law. The vibration of butterfly wings can affect the climate of the whole world, and each cases adherence to justice can also be combined into a grand narrative of China ruled by law. Therefore, I hope that the case of lawyer Lin Xiaoqing can be dealt with fairly, and do not split the common belief of the legal profession community in the rule of law.
Source: Peng Mei News Author: Luo Xiangs Responsible Editor: Li Wan_B11284