Two days later, Fang Yi called the prosecutor who was in charge of Zou Guang's case to inquire about the protest, because the communication between the two parties had been smooth before, and the other party did not hide it, telling him that the city procuratorate also felt that the verdict in this case was problematic, not only was the crime wrong, but the sentence was also light, and it was possible that the city procuratorate would change the protest opinion.

Fang Yi's heart sank after hearing this, it seems that the second trial should be well prepared.

Because the facts of the case were relatively simple, the procuratorate's protest and the defendant's appeal focused on the charges and sentencing, and there was no dispute between the two parties on the facts of the case.

On the day of the trial, Zou Daliang also came, and he sat in the auditorium, waiting for the final verdict like grass growing in his heart.

……

"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 Prosecutor will be given the floor first. The presiding judge said.

In cases where there is both a prosecutorial counter-appeal and an appeal, the procurator shall speak first, followed by the appellant and defender.

"Presiding Judge and Judge: We believe that the original judgment was erroneous and the sentencing was improper. Here's why:

In this case, the defendant Zou Guang gained the victim's trust by fabricating facts, the victim voluntarily handed over the mobile phone and waited in place, the defendant openly left the scene with the consent of the victim, the victim had already delivered the mobile phone, and the mobile phone was out of his control, and the victim had already carried out the disposition.

The defendant did not commit the theft of taking advantage of the unpreparedness and secretly fleeing, so the crime of fraud should be found in this case, and in addition, the defendant Zou Guang constituted a recidivist and should be punished heavily, and the original judgment and sentence were improper. It is recommended that the court change the charges and sentence the defendant to two years imprisonment. Complete. The inspector said.

After listening to the opinions expressed by the procurator, Zou Daliang in the auditorium immediately became nervous, what? One and a half years is not enough, the sentence will be increased to two years!

Appellant Zou Guang brought over the same rhetoric from the first trial, pleaded guilty and accepted punishment, and affirmed that the court would reduce his punishment.

"Appellant Zou Guang's defender expressed his defense opinions." The presiding judge said.

"Presiding Judge and Judge: We believe that the court of first instance erred in characterizing the case and sentenced it unusually harshly. This case is a loss of property caused by the victim's misunderstanding, which meets the essential characteristics of the crime of fraud and should be characterized as a crime of fraud. Here's why:

1. The court of first instance held that 'the victim only disposed of the "possession" of the mobile phone and other property based on the deception, but not its ownership, so it should not be found to be a crime of fraud', which is wrong.

The defender believes that in the case of the crime of fraud, as long as the victim transfers the property or property interests to the perpetrator or a third party for possession, it can be found that the victim has a disposition. Therefore, the object of disposition can be either ownership or possession. The analysis is as follows:

First, the object of the disposition in the crime of fraud may be possession, not necessarily ownership.

Under normal circumstances, there is no doubt that the owner has the right to dispose of the property, but in exceptional circumstances, the possessor also has the right to dispose of the property.

For example, in the case where the perpetrator pretends to be the owner and fraudulently receives the lost property, the person who finds the lost property is only temporarily in possession of the lost property and does not enjoy ownership, and the object of his punishment can only be the right of possession, but this does not affect the establishment of the perpetrator's crime of fraud.

Second, if the owner falls into a misunderstanding and carries out the transfer of possession, it can also establish the punishment of the crime of fraud.

In general, the owner of a misunderstanding will voluntarily dispose of the ownership of the property he holds. However, under special circumstances, the owner can also establish a disposition in the crime of fraud if he only disposes of the right of possession.

For example, if A tells B that he wants to hold an exhibition and wants to borrow one of B's paintings for exhibition, but A sells the painting behind B's back and then flees with the money, the owner B lends the painting only to the possession of the painting, not ownership. But A is still guilty of fraud.

Third, the perpetrator can completely infringe on the ownership of the property through the victim's disposition of the right of possession.

In this case, the object of the victim's disposition was only the possession of the mobile phone, not the ownership. Each victim has ownership of the mobile phone, and he may transfer ownership of the property to the appellant, and may also transfer possession of the property to the appellant.

At the time of the incident, the victims had only transferred possession of the mobile phone to the appellant, but the appellant Zou Guang's actions had violated the integrity of the victim's property ownership. Therefore, although the victim only transferred the possession of the mobile phone, it does not affect the establishment of the crime of fraud.

2. The court of first instance held that 'possession refers to de facto domination, including only domination within the scope of physical domination', and the defender argued that this judgment was erroneous.

We believe that domination includes not only physical domination, but also social conceptual dominance.

In this case, when the victim and the appellant were at the scene of the crime together, even if the appellant was directly in possession of the victim's mobile phone, from the perspective of the public, it can still be considered that the victim was in possession of the property, but it was a situation of lax possession. At this time, the relationship of possession and domination of the mobile phone was not legally transferred, and the victim did not dispose of the mobile phone.

(Possession relaxation: The theory is too abstract, for example, if you eat in a restaurant, the waiter serves a plate of dishes to the table, although the customer physically directly controls the plates and chopsticks, but from the perspective of the public, when the customer uses the plates and chopsticks in the restaurant, the restaurant still owns the plates and chopsticks, which is the possession relaxation.) ）

However, if the perpetrator takes the property away from the scene and the victim does not stop it, it should be considered that the relationship between possession and domination of the property has changed.

In this case, after the victim handed over the mobile phone to the appellant Zou Guang, the victim was still present in possession of the property, and the victim could request the appellant to return the property at any time, which was only a situation of lax possession.

When the appellant Zou Guang left the scene with the victim's mobile phone on the pretext of driving a police car, the victim did not ask for the mobile phone to be returned, but tacitly agreed to the appellant's departure from the scene, so that the appellant could achieve complete control over the property, and the appellant should be deemed to have obtained legal possession.

If the appellant secretly escaped after obtaining the victim's mobile phone, it constituted the crime of theft; If the appellant openly escaped with a mobile phone, it can be found to be a crime of robbery; If the appellant uses violent means to make the victim dare not or cannot resist and then leaves, it may be found to be a crime of robbery.

However, the appellant in this case did not do so. After the victim knew that the appellant was going to leave the scene with his mobile phone, the victim did not object, and some of the victims even explicitly agreed.

When the appellant took the mobile phone away from the scene, the reason why the victim did not object, but acquiesced and agreed to the appellant's removal of the mobile phone, was entirely based on the appellant's deception, which met the essential characteristics of the crime of fraud, so this case should be characterized as the crime of fraud.

In addition, according to the case file materials provided by the public prosecutor, the appellant truthfully confessed his crime after arriving at the case, and voluntarily confessed to the same crime that the public security organs had not yet grasped, and voluntarily pleaded guilty at trial, and may be given a lighter punishment. In view of this, the court was requested to impose a lenient punishment on the appellant in accordance with the law and to commute the appellant's sentence to one year's imprisonment. Complete. Fang Yi said.

The one-year fixed-term imprisonment was discussed with Zou Daliang, and Zou Guang also agreed to this sentence, although he did not want to go to prison, but the mistake had already been committed, and he would always have to bear the corresponding consequences.

……

(End of chapter)