"Have you seen the online reports as well?" The male lawyer asked in a low voice.

"Well, I looked. The lawyer system in China has been reformed for so many years, and I wonder when we will become state civil servants! I'll have to see how the prosecutor's office and the courts explain it. The female lawyer said with a bewildered expression.

"Who's to say it isn't! It's really messy. In order to change the lawyer's identity. What a big hatred this is, we have to be careful when we do criminal cases in the future. The male lawyer sighed in a low voice.

Some of the lawyers around him were chatting and some were smoking, and everyone had only one purpose, to observe the case of Lee Myung-bak for deliberately leaking state secrets.

At nine o'clock in the morning, the gate of the courthouse opened, and everyone outside the door walked in one after another.

In the courtroom, the judge was reading out the contents of the first-instance verdict, Fang Yi glanced at the auditorium, the good guy was sitting full, and Director Sun, Zhao Zhongzhong and Li Mingbo's daughter-in-law were sitting in the first row.

……

"Next, the appellant Lee Myung-bak will first read the appeal petition or state the reasons for the appeal." The presiding judge was a woman in her forties with short ear-length hair, and the judges on either side of her were two male judges, both with serious faces.

"In my opinion, the facts found in the first instance were erroneous and the law used was erroneous for the following reasons:

1. Although I asked Li Youpeng to see the copy materials of the case file, I did not ask him to make a copy of the case file.

2. The dossier materials copied by Li Youpeng were neither marked with the classification of secrets, nor were they marked as state secrets. After I copied the case file, no one informed me in any form that the copied case file was a state secret.

3. The conclusion of the appraisal that the criminal case file copied by our firm is a state secret has no basis in law and cannot be used as evidence.

4. I am an ordinary lawyer, not a state official, and the court of first instance was wrong in finding that I was a public servant......"

Lee Myung-bak is a lawyer, and he has communicated with Fang Yi about the defense plan before, so he wrote down the defense content he could think of before the trial, whether it was reasonable or unreasonable, and planned to punch the master to death, as long as there was a punch to the point, he would be able to get free, this is his real idea at this time.

"The appellant's defense lawyer will now present his grounds of appeal." The presiding judge said.

"The defender believes that the facts found in the original judgment are unclear, the evidence is insufficient, and the application of law is wrong, and the appellant Lee Myung-bak does not constitute a crime, and requests the court to revoke the original judgment and change the verdict to not guilty in accordance with the law. The grounds of appeal are as follows:

According to Article 398 of the Criminal Law, a functionary of a state organ who intentionally or negligently divulges state secrets in violation of the provisions of the Law on Guarding State Secrets, and the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or short-term detention; where the circumstances are especially serious, the sentence is to be between three and seven years imprisonment. Where non-state organ employees commit the crimes in the preceding paragraph, they are to be punished as appropriate in accordance with the provisions of the preceding paragraph.

1. According to the above provisions, the subject of the crime of intentionally divulging state secrets should be a state functionary, and the appellant is not a state organ functionary, but an ordinary lawyer, and is not a qualified subject of this crime at all, and the court of first instance erred in finding that the appellant was a state official.

2. The appellant's copied case file materials were not marked with any word confidential, and no court staff informed the appellant that the copied case file materials involved state secrets, let alone asked the appellant to sign any confidential documents.

When the appellant copied the case file of the corruption case, the case had already been transferred to the court for trial, and whether the case file was a state secret at that time depended on whether the contents of the case file involved a state secret.

The appellant handled an ordinary corruption case, and it was tried in public, and it did not involve state secrets at all, so the case file copied by the above-mentioned person was not a state secret.

Therefore, the defender believes that the appraisal opinion issued by the secrecy organ that the file materials are classified state secrets should not be used as the basis for conviction in this case. There is insufficient evidence in this case.

The court is requested to acquit the appellant in accordance with the law. Complete! Fang Yi said.

"Appellant Lee Myung-bak, do you have any objection to the facts and charges found in the first-instance verdict?" The presiding judge walked through the procedure step by step.

"If there is an objection, I do not recognize the charges and facts found by the court of first instance......" Lee Myung-bak said.

At this time, he will definitely not be able to admit it, and if he does, he will have to go to prison, his lawyer's certificate will be revoked, and his career will be terminated.

"The prosecutor questioned the appellant about the facts ascertained in the first-instance judgment." The presiding judge said.

The two male prosecutors sitting in the prosecutor's seat opposite Fang Yi frowned, and since they took over the case, they have been greeting the ancestors of the two prosecutors in the first instance.

Play too! Can a lawyer be a public servant? You pay your salary! This logic is really unprecedented, how come there is no common sense at all! Drink too much!

Since he took over the case, the procedure should go and go down, and the male prosecutor led by him could only pick him up and say reasonably: "Appellant Lee Myung-bak, did you go to the court to read the file yourself?" ”

"Yes, I'll do it myself." Lee Myung-bak said.

"But according to the surveillance video of the court case filing division, you didn't go alone, and there were two people who entered the door of the case filing court with you." The male prosecutor said.

"Yes, Li Youpeng and Li Yong went to the case filing court with me at that time, but they were not present when they used the case file to make copies. They have been waiting in the case filing court. Lee Myung-bak said.

"After leaving the court, who else has read the file of the Li Wen corruption case, and have you allowed others to read it?" The male prosecutor asked.

"Li Youpeng borrowed it from me, but returned it to me early the next morning." Lee Myung-bak said.

"Do you know that Li Youpeng made a copy of the case file again?" The male prosecutor asked.

"I don't know." Lee Myung-bak said.

"Later, you went to investigate and collect evidence, who went with you?" The male prosecutor asked.

"One of our law firm's trainees went with me." Lee Myung-bak said.

"How did you find the witnesses in the Lee Wen embezzlement case?" The male prosecutor asked.

"It was Li Youpeng who took us there. Because we didn't know the local area, we needed someone to show us the way. Lee Myung-bak said.

"Did you go all the way to find witnesses to investigate and collect evidence?" The male prosecutor continued to ask.

"It went well. The parties were very cooperative. Lee Myung-bak said.

In fact, at that time, Li Mingbo saw that Li Youpeng was looking for witnesses, and he was familiar with the road, especially when there was a witness who lived in the village, Li Youpeng drove directly over and stopped at the door of the person's house, and he suspected in his heart that Li Youpeng had gone to find witnesses. But the witnesses were all colleagues of his father Li Wen, and Li Mingbo thought that Li Youpeng might have known them before and had visited the house, so he didn't pay much attention to it.

"The witnesses involved in the case gave different testimony and evidence than before, have you ever doubted the authenticity?" The male prosecutor asked.

"At that time, there were only three people on the scene: me, our firm's trainee lawyer and witnesses, and I asked questions, and the trainee lawyers took notes, and then asked the witnesses to give handwritten testimony, and I didn't think there was anything wrong." Lee Myung-bak said.

He really doubted the authenticity of the witness's testimony, because what the witness said was exactly the opposite of the testimony in the case file, and what he said was very slippery, as if he had memorized it, but the testimony was indeed written by the witness himself, and there were many signatures and fingerprints, so Lee Myung-bak didn't ask much.

"Did Li Youpeng talk to you about witnesses?" The male prosecutor asked.

"No, he never mentioned it to me, and I never told him." Lee Myung-bak said.

Fang Yi knew the reason why the prosecutor asked this, and Lee Myung-bak also knew that this was a pitfall, and the prosecutor actually wanted to ask if it was you Lee Myung-bak who instructed Lee Youpeng to find witnesses to tamper with the testimony, and if so, then you can rely on the crime of obstructing testimony, and even if the charges in this case cannot be confirmed, you can also prosecute separately and accuse Lee Myung-bak of obstructing witnesses to testify.

After Li Youpeng was arrested, he made private copies of the case file and asked witnesses to provide false evidence and testimony all on himself, and did not involve Li Yong and Lee Myung-bak, only mentioning that Lee Myung-bak had lent the case file to him for viewing.

Moreover, several witnesses also stated to the public security organs that Li Youpeng was the only one who asked him to tamper with his testimony at that time, and he had not seen anyone else.

The prosecutor wanted to find a breakthrough in Lee Myung-bak, so he asked this question, but now it seems that Lee Myung-bak really did not know what hindered his testimony.

……

"Do the prosecutors, defenders, and appellants have any new evidence to submit?" The presiding judge asked.

"There is no new evidence." Tripartite equalization.

"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.

The appellant is invited to take the floor. The presiding judge said.

Lee Myung-bak is still the same set of words, but it is more detailed and broader. As a lawyer, Lee Myung-bak must be able to speak better than the average defendant, which is also normal.

"Appellant Lee Myung-bak's defender speaks." The presiding judge said.

"Presiding Judge and Judge: The defender believes that the appellant Lee Myung-bak, as the defense lawyer in the Lee Wen corruption case, allowed the defendant's relatives to inspect the evidence materials of the case that he copied in the court, which does not constitute the crime of intentionally leaking state secrets. Here's why:

1. The target of the crime of intentionally divulging state secrets

The first paragraph of Article 398 of the Criminal Law stipulates: 'A functionary of a state organ who intentionally or negligently divulges state secrets in violation of the provisions of the Law on Guarding State Secrets, and the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or short-term detention; where the circumstances are especially serious, the sentence is to be between three and seven years imprisonment. ’

It can be seen from this that the object of the crime of intentionally divulging state secrets is state secrets, and the evidence materials of the case reproduced in the court by the appellant Lee Myung-bak and let Li Wen's relatives consult in this case are not state secrets.

II. The subject of the crime of intentionally leaking state secrets

According to Article 398 of the Criminal Law, the subject of the crime of intentionally divulging state secrets is the functionaries of state organs and non-state functionaries who are aware of state secrets.

According to the Lawyers Law of the People's Republic of China, a lawyer is a 'practitioner who provides legal services to the public', not a staff member of a state organ, nor a person who knows the state secrets of the system as restricted by the procuratorial department's secrecy regulations.

Moreover, the confidentiality provisions of the court system did not identify the case evidence as a state secret, so the appellant in this case naturally had no obligation to keep the case evidence as a state secret.

It can be seen from this that the court of first instance erred in identifying the appellant Lee Myung-bak as a state organ functionary with specific obligations.

III. The Subjective Elements of the Crime of Intentionally Divulging State Secrets

The subjective element of the crime of intentionally divulging state secrets is that they are knowingly leaked for the sake of state secrets. Since the confidentiality provisions of the procuratorate and the court system are themselves secret documents, it is impossible for the appellant, Lee Myung-bak, to know about these documents and their contents.

In accordance with the State Secrets Law and the relevant confidentiality provisions of procuratorial organs, procuratorial organs at all levels shall indicate the level of secrecy and the period of secrecy for litigation documents formed in litigation activities, and shall inform relevant personnel of litigation documents that are not suitable for direct labeling, and make a registration record.

However, the case file materials of the Lee Wen corruption case copied by the appellant Lee Myung-bak in the court did not indicate the classification level and confidentiality period, nor did the court and the procuratorate inform Lee Myung-bak that he should fulfill the confidentiality obligation and make relevant registrations.

Therefore, it was impossible for the appellant in this case, Lee Myung-bak, to know that the case file materials copied by the court were state secrets, and Lee Myung-bak did not have the intent to commit a crime.

To sum up, the appellant in this case, Lee Myung-bak, did not constitute the crime of intentionally divulging state secrets by allowing the relatives of Lee Win (the defendant in the embezzlement case) to inspect the case file materials copied by him in the court.

The court was requested to change the verdict of appellant Lee Myung-bak not guilty in accordance with the law. Complete! Fang Yi said.

"It is now up to the Prosecutor to speak." The presiding judge stopped the pen in his hand and looked up at the prosecutor.

"Presiding Judge and Judge: We believe that the appellant Lee Myung-bak privately showed the criminal case file materials he copied from the court to the defendant Li Wen's son, Li Youpeng, causing Li Youpeng to find the witnesses involved in the case and persuade him to tamper with the evidence, causing obstacles to the trial of the case and causing serious consequences.

The court of first instance found that the facts were clear and the law was correctly applied, and requested the court to reject the appellant's claim in accordance with the law. Complete. The male prosecutor said.

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

"In response to the defender's arguments, our views are as follows:

According to the "Provisions on the Specific Scope of State Secrets and Their Classification in Procuratorial Work" and its annex "Provisions on Determining the Classification and Confidentiality Period of Procuratorial Litigation Documents", 'Records of interrogation of defendants' and 'testimony of questioning witnesses' are classified state secrets, and the period of secrecy is 'before trial'.

Article 22 of the "Provisions on the Specific Scope of State Secrets and Their Classification in Procuratorial Work" stipulates that case file materials transferred for examination and approval of arrest, prosecution, and prosecutorial counter-appeals must be strictly registered and handed over to them. Records of reading the case file, supplemental investigation materials, defense outlines, procuratorial committee and collective discussion records, and so forth shall be kept strictly confidential. It must not be provided to unrelated persons without approval.

According to the above provisions, when the appellant Lee Myung-bak copied the case file materials, the Lee Wen corruption case had not yet been tried and was before the trial, and the case file materials copied by Lee Myung-bak included supplementary investigation materials, so the case file materials were classified as classified state secrets.

Although the appellant Lee Myung-bak was not a state official, he knew and divulged state secrets, which still constituted the crime of intentionally leaking state secrets. Complete! The male prosecutor said.

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

"Presiding judge and adjudicator: Based on the procurator's defense opinions and responses, the defender is to issue the following defense opinions:

First, the confidentiality provisions of the procuratorate do not apply to lawyers.

The "Provisions on the Specific Scope of State Secrets and Their Classification in Procuratorial Work" and its annex, the "Provisions on Determining the Classification and Confidentiality Period of Procuratorial Litigation Documents," and other confidentiality regulations of procuratorial organs, are aimed at enabling people's procuratorates at all levels to strictly abide by the relevant laws and regulations on secrecy in handling cases, safeguard the security of state secrets, and ensure the smooth progress of all procuratorial activities. This provision applies to case-handling personnel of procuratorial organs and personnel within procuratorial organs who need to come into contact with cases for their work.

The designation of "interrogation records of defendants" and "testimony of interrogating witnesses" as classified state secrets is mainly to ensure the smooth progress of the investigation of cases accepted by the procuratorial organs, and the main body of restraint is the case-handling personnel of the procuratorial organs and the personnel within the procuratorial organs who need to come into contact with the case due to their work, and the purpose is to prohibit relevant personnel from leaking case file materials and bending the law for personal gain.

According to Article 38 of the Criminal Procedure Law (amended in 2012), defense lawyers may consult, copy, and reproduce the case file materials from the date on which the People's Procuratorate reviews the case for prosecution. (After the 2018 amendment to the Criminal Procedure Law, the above article was changed from Article 38 to Article 40)

Therefore, at the stage of review for prosecution, the confidentiality provisions of the procuratorate do not apply to defense lawyers.

Second, after the case file is transferred to the court, where the defense lawyer reads, excerpts, or reproduces the facts of the crime in accordance with the law, and leaks them, it does not constitute the crime of leaking state secrets.

When a procuratorate initiates a public prosecution and the case file of a criminal case is transferred to the court, whether the facts of the crime in the case file are state secrets depends on whether the criminal case involves state secrets and whether it is a case involving secrets. If the case involves secrets or there are confidential documents in the case, the classified materials involved should be marked with the classification level and confidentiality period, and the personnel involved in the secrets shall abide by the current and effective confidentiality provisions of the court system.

The appellant Lee Myung-bak's embezzlement case was just an ordinary corruption case and did not involve state secrets, and the court did not inform the appellant that there were confidential documents in the embezzlement case involving Lee Myung-bak, and the case file materials copied by the appellant Lee Myung-bak were not marked with the word "confidential" and the classification level.

In addition, according to the relevant legal provisions of the defender's search, the current secrecy regulations of the court system do not stipulate that the materials involved in the alleged criminal facts in cases other than cases involving state secrets, including "records of interrogation of defendants" and "testimony of witnesses", are state secrets.

In view of this, after the procuratorate indicted the case and before the court opened, the appellant Lee Myung-bak, as the defense lawyer in the Li Wen corruption case, showed the "interrogation of the defendant's transcript" and "examination of witness testimony" in the case file that he had consulted, copied, and copied in accordance with the law to the defendant Li Wen's relatives, which did not constitute the crime of leaking state secrets.

If the appellant, Lee Myung-bak, uses the information in the case file to induce the relevant witness to change his testimony contrary to the facts or give false testimony, he will be suspected of the crime of obstructing testimony. However, the appellant did not commit such acts and therefore did not constitute the offence of obstruction of testimony. After Fang Yi finished speaking, he felt his throat a little dry, and swallowed after stopping.

The reason why the crime of obstructing testimony was mentioned was mainly because the procurator had the intention of directing it to this side before, and Fang Yi was afraid that the other party would hold on to it, so he simply said it in this case to dispel the idea of the procurator to prosecute separately.

"Third, the facts of the crime are no longer state secrets after they are transferred to the court.

As mentioned above, although the confidentiality provisions of the procuratorate set the confidentiality period of criminal facts (such as 'interrogation of the defendant' and 'examination of witness testimony') to 'before trial', this provision is inconsistent with the provisions of the Criminal Procedure Law.

Article 36 of the Criminal Procedure Law (1996 revision) stipulates that a defense lawyer may consult, excerpt, and reproduce the procedural documents, technical appraisal materials, and ...... of the case from the date on which the people's procuratorate examines the case for prosecution. From the date on which the people's court accepts the case, the defense lawyer may consult, copy, and reproduce materials on the facts of the crime charged in the case......

The so-called 'materials of criminal facts' mainly refer to all kinds of evidentiary materials, including the defendant's confession and the testimony of witnesses.

According to the above-mentioned provisions, once a criminal case is transferred to the court for prosecution, all evidentiary materials, including the defendant's confession and witness testimony, must be publicly presented, read out and cross-examined in court, and there is no longer any secret to speak of, and it is no longer a state secret, so the law does not prohibit lawyers from giving it to others to see.

In 2012, the amended Criminal Procedure Law changed the above article to Article 38, which specifically provides that defense lawyers may consult, excerpt and reproduce the case file materials from the date on which the people's procuratorate reviews the case for prosecution.

At the same time, paragraph 4 of article 37 stipulates that from the date on which the case is transferred for review for prosecution, the relevant evidence may be verified with the criminal suspect or defendant.

In other words, after the 2012 amendment to the Criminal Procedure Law, defense lawyers can consult and copy case file materials, whether it is at the stage of review for prosecution by the procuratorate or after the court accepts the case, and no longer distinguishes whether it is criminal factual material or not.

It can be seen from this that setting the confidentiality period of criminal facts as 'before trial' is incorrect and conflicted with the Criminal Procedure Law, and the Criminal Procedure Law should prevail.

The defender argued that after the court accepted the case, the defendant's confession, witness testimony, and other criminal facts in the case file materials copied by the appellant Lee Myung-bak should not be state secrets.

To sum up, the appellant in this case, Lee Myung-bak, in the course of undertaking the Li Wen corruption case, allowed Li Wen's relatives to inspect the evidence materials of the case, which did not constitute the crime of leaking state secrets and did not constitute the crime of intentionally leaking state secrets. Complete. Fang Yi said.

……

After the gavel sounded, the presiding judge announced a 10-minute adjournment before announcing the verdict in court.

Fang Yi sat on the defense bench and drank mineral water in a big gulp, he looked at the table below, it was already eleven forty o'clock, at this time his stomach was gurgling, and he had been fighting all morning unconsciously.

Fang Yi didn't dare to look at the crowd in the auditorium, he was afraid to see the hopeful eyes of Lee Myung-bak's daughter-in-law, her eyes put more pressure on him than Mount Tai, and he was afraid that the court would reject the appeal and uphold the original verdict.

Ten minutes later, the collegial panel walked into the courtroom.

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(End of chapter)