Seeing Meng Guangda like this, Yu Wendong knew that he was about to start "teaching" again. He was really afraid that the judge would be disturbed by listening, so he directly interrupted him and asked for a concise and concise presentation of his defense opinions.

It is said that when he first practiced, Meng Guangda committed this mistake and was reprimanded by the junior judge.

Since then, although Meng Guangda has carried out self-reflection and self-criticism, and his defense style has improved a lot and become more down-to-earth, the literati style in his bones has always been there, but he has become more restrained.

Meng Guangda paused and continued to express his defense opinions: "In this case, the defendant Zhang Khan's purchase of the stolen goods of Yang Zugang and others from Yan Yunzhe, the stolen goods seller, does not constitute an accomplice to the theft, for the following reasons:

1. Before the theft was committed, there was no conspiracy between the defendant Zhang Khan and Yang Zugang and others.

Joint crime requires that the joint offenders must have a common criminal intent, that is, the joint offenders have a certain communication of intent, recognize the social harmfulness of their acts, and agree to participate in the joint crime.

According to the defender, this communication of intent must have occurred before the commission of the criminal act (prior conspiracy).

In other words, before the criminal act is committed, the co-offenders have already communicated their intentions on the criminal content such as the decision on the criminal intent, the specific division of labor for the criminal act, and the disposal of the proceeds of the crime.

The Supreme People's Court pointed out in the "Telephone Reply on the Understanding of 'Prior Conspiracy in the Crime of Harboring or Harboring, Treating It as a Joint Crime'" (December 28, 1985): "Prior conspiracy refers to the fact that where a criminal who harbors or harbors and is harbored or abetted conspires or conspires with a criminal before committing a crime, and agrees that the criminal will be harbored or shielded after committing the crime, it shall be handled as a joint crime. Where it is only known that the perpetrator is going to commit the crime, but afterwards harbors or shields the perpetrator, or knows in advance that the perpetrator is going to commit the crime, but fails to report the crime, and then harbors and shields the criminal after the crime has occurred, it shall not be treated as a joint crime, but shall constitute the crime of harboring or abetting separately (the Amendment (VI) to the Criminal Law of the People's Republic of China, which came into effect on June 29, 2006, amends this crime to read: the crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds).

The determination of prior conspiracy in the above-mentioned reply is consistent with the provisions of the General Provisions of the Criminal Law on the subjective elements of joint crimes, so the defender believes that the spirit of the above-mentioned reply can also be used to determine the 'prior conspiracy' of the stolen goods seller and the thief.

In other words, if the perpetrator of the sale of stolen goods conspires or conspires with the perpetrator of theft before the theft, and agrees to harbor, transfer, purchase, sell the stolen goods on his behalf, or otherwise cover up or conceal the theft after the theft, it is an act of assistance in a joint crime, which belongs to a different division of labor in the joint crime, and should be punished as an accomplice to the crime of theft.

If there is evidence showing that the perpetrator of the sale of stolen goods and the perpetrator of theft have formed a long-term, stable, and tacit cooperative relationship, and after the theft of the property, in accordance with prior agreement or tacit agreement, harbors, transfers, acquires, sells stolen goods on behalf of the perpetrator of theft, or otherwise covers up or conceals it, it shall also be found that there was a prior conspiracy between the two parties, and it shall be punished as an accomplice.

In this case, Zhang Khan had never had any direct or indirect prior contact with Yang Zugang and others regarding the purchase of stolen goods before Yang Zugang and others committed the theft.

Yan Yunzhe contacted Zhang Khan to purchase the stolen cables because he did not have enough funds in his hands to purchase all the stolen goods, so he temporarily contacted the defendant Zhang Khan, and Yan Yunzhe's conduct was his personal conduct.

Before and during the theft, Yang Zugang and others did not know that Zhang Khan had purchased the stolen cable from Yan Yunzhe.

Therefore, Zhang Khan and Yan Yunzhe's prior agreement to purchase the stolen cables should not be found to be a prior conspiracy between Zhang Khan and Yang Zugang and other thieves.

In addition, the evidence on record in this case cannot prove that the defendant Zhang Khan formed a long-term, stable, and tacit cooperative relationship with Yang Zugang and others regarding the purchase of stolen goods.

It can be seen from this that the defendant Zhang Khan did not have any intention to commit the theft with Yang Zugang and others before and during the theft, so Zhang Khan did not have the subjective elements to establish an aider in the joint theft.

2. Defendant Zhang Khan's conduct did not encourage or support Yang Zugang and others in committing theft.

In the case of a joint crime, the aider must have provided assistance before or at the time of the commission of the crime, which is the time limit for the establishment of an aider. Generally speaking, there are two types of helpers:

The first type is psychological assistance, which mainly refers to providing incentives and advice to the perpetrator's behavior, and agreeing to help escape after the fact, so that the defendant's determination to commit the crime is strengthened or the perpetrator's sense of psychological security is enhanced in the course of committing the crime.

The second type is physical assistance, which mainly refers to providing the defendant with tools to commit crimes, creating conditions for committing crimes, and so on.

In this case, the defendants Yang Zugang and others were the perpetrators of the theft at the scene, and the defendants Yan Yunzhe and Zhang Han did not go to the scene of the theft to carry out the theft, so Yan Yunzhe and Zhang Han were not the perpetrators of this case.

When the defendant Yan Yunzhe contacted Zhang Khan, Zhang Khan had clearly learned that the stolen goods he was about to acquire were cables. Therefore, Zhang Khan had already recognized that someone was about to commit the theft before he bought the stolen goods.

It can be seen from this that before Zhang Khan purchased the stolen goods, the criminal determination of Yang Zugang and others to steal had already been formed before that, and Zhang Khan's behavior did not have any psychological help effect on this determination.

Before and during the theft, Yang Zugang and others did not know that Zhang Khan was going to buy stolen goods, and Zhang Khan's behavior did not cause Yang Zugang and others to have a certain psychological encouragement in the process of committing the theft.

From the above, it can be seen that Zhang Khan did not carry out psychological assistance to Yang Zugang and others in this case.

In the process of Yang Zugang and others committing the theft, Zhang Khan did not go to the scene of the theft, nor did he provide them with tools to commit crimes or create conditions for committing crimes.

When Zhang Khan brought cash to the transaction site to purchase stolen goods from Yan Yunzhe, the theft crime of Yang Zugang and others had already been carried out (completed). Zhang Khan's act of carrying cash to Yan Yunzhe to purchase stolen goods occurred after Yang Zugang and others succeeded in stealing and transferring the stolen goods, so this act is not an act of aiding Yang Zugang and others' theft.

In view of this, Zhang Khan also did not provide physical assistance to Yang Zugang and others in this case.

To sum up, the defendant Zhang Khan did not conspire with Yang Zugang and others in advance, and in the process of Yang Zugang and others' theft, Zhang Khan subjectively did not have the criminal intent to help Yang Zugang and others commit the theft; Objectively, the theft of Yang Zugang and others was carried out without psychological or physical assistance. Zhang Khan's act of acquiring stolen goods was not an act of helping Yang Zugang and others to commit theft, but a simple act of selling stolen goods after the fact, so his act was not an act of helping to commit joint theft and did not constitute an accomplice to theft.

Although defendant Zhang Khan's conduct did not constitute the crime of theft, he clearly knew that it was the stolen goods stolen by Yang Zugang and others, and his conduct violated the provisions of Article 312 of the Criminal Law, and it should be found that Zhang Khan's conduct constituted the crime of concealing criminal proceeds.

In view of the fact that the defendant Zhang Khan truthfully confessed after being brought into the case and did show remorse, the defender recommended that the defendant Zhang Khan be sentenced to a suspended sentence. Complete. Meng Guangda's mouth is dry, and I don't know if the judge can accept it.

……

(End of chapter)