After a pause, Fang Yi continued: "In addition, the defender drew the presiding judge's attention to the fact that the buyer surnamed Wu mentioned in this case is an investigator of the forest public security organ, and the true identity of this person is recorded in the trial record of the first instance, which is on the fifth line of page 93. The cross-examination is complete. ”

After hearing Fang Yi's words, the three judges of the collegial panel bowed their heads and whispered a few words, and one judge began to look through the case file.

……

"The court investigation is over, and now the court argument is open.

Before the debate, the court draws the attention of the prosecution and the defense to the fact that the debate should mainly focus on the determination of the charge, sentencing and other controversial issues. First, the appellant and defender are invited to speak.

Appellant Zhao Cuixia can defend herself. The presiding judge said.

"I don't think I have committed the crime of selling rare and endangered wild animals, I was lured by the surname Wu to buy wild animals for him, and I only played a matchmaking role in it, and it should not be recognized as a crime.

In addition, the surname Wu is a person from the forest police, and I think they deliberately lured me into committing a crime, and the court of first instance convicted me of the crime, which violated the principles of heaven. I'm done. Zhao Cuixia said

"Appellant Zhao Cuixia's defender spoke." The presiding judge said.

"Judging from the facts of this case, it has always been the buyer surnamed Wu who has been urging Zhao Cuixia to help her buy wild animals for as long as six months, which shows that Zhao Cuixia did not take the initiative to sell wild animals protected by the state.

The forest public security organs, without knowing the fact that Zhao Cuixia had sold wild animals protected by the state, sent investigators to take the initiative to lure Zhao Cuixia to sell wild animals protected by the state, and Zhao Cuixia participated in the transaction of the two whooper swans as an intermediary, and the introduction fee she received from them was only 50 yuan.

The collection of evidence by means of inducement by an investigative agency is contrary to the provisions of the Criminal Procedure Law, and the evidence collected by the investigating agency is illegal and should not be admitted. The court is requested to revoke the criminal judgment of the court of first instance in accordance with the law, and change the verdict to acquit the appellant (defendant in the original trial) Zhao Cuixia.

The defender has spoken. Fang Yi said.

"It is now up to the prosecutor to speak." The presiding judge said.

"Okay, Presiding Judge.

The appellant, Zhao Cuixia, illegally sold whooper swans, a national Class II protected wild animal, for the purpose of making a profit, and her conduct constituted the crime of illegally selling rare and endangered wild animals.

Subjectively, Zhao Cuixia had the idea of selling wild animals for profit, and objectively did carry out the act of selling rare and endangered wild animals, and we believe that the facts found in the first instance are clear and the applicable punishment is appropriate, and we request the court to reject the appellant's request in accordance with law.

The presiding judge, the prosecutor has finished speaking. Inspector Song said.

"The prosecutor may respond to the defender's arguments." The presiding judge said.

"Okay, with regard to the defender's defense opinions, we believe that even if the appellant Zhao Cuixia's illegal acts were influenced by others, if she did not have the subjective will to make illegal profits, it would be impossible for her to commit illegal and criminal acts.

Although the whooper swan is not Zhao Cuixia's, she has participated in the trade of wildlife protected by the state and played a role in it. No matter how much she profits, it should be a crime. Inspector Song said.

"The defender can respond to the prosecutor's comments." The presiding judge said.

Fang Yi looked at the record on the paper and said: "In response to the prosecutor's opinion, the defender responded as follows:

1. The appellant's criminal conduct was caused by the temptation of the investigators to investigate.

The so-called temptation investigation refers to the setting up of traps or bait by investigators to imply or induce the subject of investigation to reveal their criminal intent and commit a criminal act, and to arrest the person who is seduced when the criminal act is carried out or after the result has occurred.

In this case, the appellant, Zhao Cuixia, was originally engaged in the restaurant business, and occasionally purchased hares and other non-precious and endangered wild animals as legitimate traders, and the investigating authorities did not know that she had the criminal intention to sell wild animals protected by the state.

Under these circumstances, investigators pretending to be a buyer surnamed Wu repeatedly asked Zhao Cuixia to purchase rare and endangered wild animals, and lured Zhao Cuixia, who then contacted Liu Sanding and reported to the buyer surnamed Wu that there was a whooper swan, and asked for a deposit of 5,000 yuan.

The buyer, surnamed Wu, who was an investigator, asked Zhao Cuixia to actively facilitate the transaction and paid a deposit in advance. When Zhao Cuixia transferred the whooper swan to the buyer surnamed Wu as an intermediary and asked him for the intermediary fee, she was caught red-handed by the forest public security officers who were ambushed around.

From the above, it can be seen that Zhao Cuixia did not have the criminal intent to sell the state-protected animals before being tempted to investigate, and the criminal acts she committed were caused by the repeated temptation of the buyer surnamed Wu's active purchase behavior. The defender believes that this case should be a typical "criminal inducement" temptation investigation.

2. An appellant who commits a crime by being lured by means of an investigative act should not constitute a crime.

Temptation investigation has a certain degree of deception, contradicts the pursuit of justice value in criminal procedure, has insurmountable defects, can easily make people lose trust in the impartiality of the judiciary, leads to the abuse of investigative power, etc., and the legality and appropriateness of temptation investigation have always been controversial.

At present, there are very few legislative systems for temptation investigation in the judicial field, and there are only some scattered provisions, such as the Ministry of Public Security's "Provisions on the Work of Special Criminal Intelligence", which stipulates: "It is strictly forbidden to commit crimes by special criminal circumstances. The Supreme People's Court's "Minutes of the National Symposium on the Trial of Cases of Crimes of Category D by Some Courts" has made guiding provisions on how to sentence drug death penalty cases that have been cracked by temptation investigations.

In view of the irreplaceable special role of temptation investigation in cracking some serious crimes, it should be recognized that its use is permissible under certain conditions, and the above-mentioned relevant provisions also embody this spirit, but in order to reduce the possible negative impact of temptation, the importance of strict restrictions on temptation investigation in the judiciary is particularly important when the relevant legislative provisions are not yet complete.

According to the defender, the purpose of the inducement investigation is to discover the perpetrator, and it is by no means to "create" the perpetrator. The essence of the law is to manage citizens, maintain social order, and urge citizens to abide by the law and obey the order.

Therefore, the investigation of "inducement of intent" should not be allowed because it is essentially a crime in the name of temptation investigation.

In this case, the investigating agency used the "criminal intent inducement" temptation investigation method to cause Zhao Cuixia, who originally had no criminal intent, to have criminal intent and commit a criminal act, which is "creating a crime", and this investigation method is not legal. Evidence obtained by using this investigative method violates the provisions of the Criminal Procedure Law of the People's Republic of China on prohibiting the collection of evidence by inducement or deception, and should be regarded as illegal evidence and should be excluded. ”

(End of chapter)