At this moment, the waiter began to serve the food one after another, and the three of them chatted while eating.

"Mr. Yuan, did you bring the first-instance verdict and relevant case materials?" Fang Yi asked.

He pondered: Since Lawyer Zhao and the partner have already entered, and Yuan Changzheng has come all the way over, this case may really follow.

"I brought it, but I only have the first-instance verdict, I don't have a protest, and I heard what lawyer Zhao said about the protest, and after the procuratorate protested, I entrusted him to go to the detention center to meet my son.

I would like to hear your opinion and see if the verdict will be changed in the second instance. Yuan Changzheng said and took out a document bag, which was thick, and it should contain a lot of documents.

After Fang Yi took the document bag, he pulled out the case materials inside: "The county court believes that Yuan Wei has a good attitude in admitting guilt, actively compensating, and obtaining the victim's forgiveness, and can reduce the punishment."

However, according to what you said just now, the procuratorate did not agree with the court's judgment and raised two protests:

Article 1: The procuratorate finds that the first-instance judgment and sentencing are improper.

The procuratorate believes that Yuan Wei has committed a huge amount of fraud, and that after the trial, he partially compensated the victim and obtained forgiveness, which is a discretionary 'lighter punishment' and should not be 'mitigated'. In the absence of statutory mitigating circumstances, the court of first instance was obviously inappropriate to reduce Yuan Wei's punishment, and the procuratorate held that Yuan Wei should be sentenced to more than three years in prison. ”

After speaking, Fang Yi picked up a settlement agreement and asked, "Mr. Yuan, the settlement agreement says that the compensation will be paid in installments, 50% will be paid first, and the final payment will be paid after the court judgment takes effect." Did the first compensation give? ”

"Yes, after signing the settlement agreement, it will be given." Yuan Changzheng said.

"Why didn't you pay it all at once and pay it in installments?" Fang Yi asked.

"The main reason is that the other party will regret it after getting the money, which can restrain the other party. At that time, I consulted lawyer Zhao's opinion, and he said that I could sign it. Any questions? Yuan Changzheng said.

"Well, it's a bit of a problem.

Article 502 of 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 defendant shall immediately perform the content of compensation for losses stipulated in the settlement agreement after the agreement is signed. The so-called immediate performance means that the agreement must be fulfilled in one lump sum after the agreement is signed, and the payment cannot be made in installments.

Article 505 of the Interpretation stipulates that in cases where a settlement agreement is reached, the people's court shall give the defendant a lighter punishment; Where the requirements for applying a non-custodial sentence are met, a non-custodial sentence shall be applied; Where the legally-prescribed minimum sentence is still excessive, the punishment may be commuted; Where it is found that the circumstances of the crime are minor and do not require a criminal punishment, criminal punishment may be waived.

In other words, if the settlement agreement stipulates that the compensation is paid in installments, and only part of the compensation is paid at the time of the trial, the court should not apply Article 505 of the Interpretation to reduce the punishment of the defendant. From this point of view, there is nothing wrong with the procuratorate's protest. Fang Yi explained.

Although Yuan Changzheng did not understand the legal provisions of the words, he understood that he should not pay the compensation in installments, because in this case, the court would not be able to apply Article 505 of the above interpretation to reduce the criminal punishment against Yuan Wei. This means that the sentence of the second instance may be changed and Yuan Wei's sentence may be extended.

Listening to Fang Yi's words just now, Yuan Changzheng regretted it in his heart, in addition to hating himself, he was even more ruthless to Lawyer Zhao, because all the documents were drafted by Lawyer Zhao at that time.

"Lawyer Fang, is there a big difference between the lenient punishment and the mitigated punishment you just mentioned? Could it be that the court's decision was wrong? Yuan Changzheng wanted to find loopholes in the law, but he didn't know much about the law, so he could only ask Fang Yi for advice.

"Well, the difference is quite big. Leniency refers to the application of a lighter type or a smaller range of punishment to the defendant within the legally-prescribed type and range of punishments. Mitigating punishment refers to the punishment given below the statutory minimum type of punishment and the minimum punishment range.

Let me give you an analogy, for example, according to the provisions of the Criminal Law, the defendant should be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and if there are circumstances for a lighter punishment, the court will consider the facts of the case and the defendant's admission of guilt and sentence the defendant to three or four years in prison, which is a lighter punishment.

If the defendant has mitigating circumstances, the court may sentence the defendant to up to three years in prison, such as one and a half years or two years.

That's the difference. Fang Yi explained.

"Is the settlement agreement subject to immediate payment in order for the mitigating provisions to apply? Are there any other workarounds? Yuan Changzheng's business mind started quickly, for businessmen, nothing is inflexible, even if there is only a slight possibility, he will try.

"According to the guiding spirit of the Supreme People's Court, there are three principles in the conciliation system: first, the principle of voluntariness; second, the principle of immediate and full implementation; Third, the principle of estoppel.

In fact, from the date of the effective date of the settlement agreement signed between you and the other party, the other party can no longer renege, and even if the other party does renege, the court will not support it. So your initial worries are unnecessary.

Your question relates to the second principle, the principle of immediate full fulfillment.

To be honest, in judicial practice, there are differences among courts on issues such as whether the performance of the compensation agreed in the criminal settlement agreement can be deferred or performed in installments. This may also be the reason why the county court applied a mitigating sentence to one year and six months in prison for your son. Fang Yi explained.

"According to you, the judgment of the court of first instance may not be reversed by the court of second instance, and it is still possible for the court of second instance to uphold the original judgment, right?" After listening to Fang Yi's words, Yuan Changzheng's heart was a little more steady.

"It's a possibility, and of course there's a lot of luck involved.

However, according to the Supreme People's Court's guiding opinions, if the postponement of performance and the performance of the compensation agreed in the settlement agreement are allowed to be performed in installments, the court's lenient punishment of the defendant will be based on uncertain facts, and once the defendant refuses to perform or does not fully perform the compensation obligation after receiving the lenient punishment, the court of second instance cannot increase his punishment due to the principle of non-increase in punishment on appeal.

In addition, since it is a settlement agreement reached between the parties, it does not have the effect of applying for compulsory enforcement, which will undoubtedly undermine the authority of the adjudication and make it difficult for the legitimate rights and interests of the injured party to be effectively protected.

So I can't say whether the court of second instance will change the verdict, but I suggest that you prepare for the worst and not be too optimistic. Fang Yi said.

"Well, I understand what you mean, we were too optimistic at the first trial, and as a result, my wife still can't accept the fact that my son was sentenced." Yuan Changzheng understood that Fang Yi's words were right, and there were all possible exceptions, so he had to be fully prepared.

(End of chapter)