China: 八天"闪电"辩护,杨大民、彭吉岳律师成功说服检察院不予批准逮捕

Last Updated: 8 August 2019
Article by King & Capital Law Firm

 

 家属真诚打动律师,决定接受委托并鼎力相助

  李某因涉嫌妨害公务罪深夜被警察带走,随即被刑事拘留,这一消息对家人来说宛如晴天霹雳!在多方咨询之后,家属最终找到京都律师事务所。家属联系到杨大民律师、彭吉岳律师后,来到律所时已经是下班时间,家属心情焦急,杨大民律师、彭吉岳律师耐心地接待了当事人一家。

  当事人的女儿是北京某著名医院的医生,工作虽然繁忙,但案发以来一直为父亲的事情奔走求助,介绍案情说到伤心处不免涕泪涟涟。家属的真诚打动了杨大民律师、彭吉岳律师,考虑到本案的情节以及这家人的困难处境,杨大民律师和彭吉岳律师决定伸出援手。

  公安机关态度坚决,拒绝取保候审

  接受委托后的第二天,彭吉岳律师便赶往看守所会见了当事人,当事人提起案发经过,后悔莫及,根据会见情况,初步判断当事人只是酒后失态,并非明确蓄意地对警察执行公务的行为加以妨害,主观恶性非常小。此外,当事人年事已高,且患有严重心脏病,在看守所羁押时间过长恐生意外。

  基于以上等种种理由,辩护人向公安机关递交了取保候审申请书,并附有当事人病历等证据材料。

  遗憾的是,第二天下午,辩护人突然接到通知,公安机关态度十分明确和坚决:拒绝取保候审,并将向检察院申请批捕!形势紧急,辩护人当即加班撰写法律意见,装订好向检察院邮寄,并准备第二天一上班便赶赴检察院进行沟通。

  

运用大数据分析总结有利结论,法、理、情结合,成功说服检察官未批准逮捕

  为了加强法律意见的说服力,辩护人对该区法院判处的妨害公务罪案例进行了细致检索和大数据分析,对法院认定犯罪的标准、量刑幅度及缓刑等执行措施的适用有了充分把握。辩护人发现,虽然《刑法》第二百七十七条没有将造成某种危害结果作为妨害公务罪成立的要件,但是司法实践中一般造成执行公务人员轻微伤以上才会认定犯罪成立。同时,本罪缓刑适用率也比较高。

  根据大数据统计得出上述相应结论

  此外,本案的关键点之一在于如何理解《刑法》第二百七十七条第五款的"暴力袭击"?围绕这一争议焦点,辩护人对相关理论观点进行了检索,搜集到"检察日报:被执行人的反抗不构成妨害公务罪"、"妨害公务罪中"暴力"认定的三个问题"等相关学术文章,为辩护意见提供了理论支撑。

  基于此并结合案情,辩护人形成了初步法律意见,同时鉴于本案当事人年事已高的特殊情形,辩护人还在法与理的基础上进一步展开"情感攻势"。儒家经典有言:国法不外乎天理人情。司法也应当有人性的温度。办案律师从本案的特点出发,以法律上罪名的构成要件为基础,结合根据刑法的谦抑性以及人文关怀,重点予以陈述,家属看完该意见后表示:"律师您好,看完您的陈述,综篇觉得饱满合理,法制到人文一脉贯通,有理有据。"

  同时,为了使审查批捕部门检察官真切了解当事人的状态及案发时的情形,辩护人还根据《刑事诉讼法》第八十八条之规定,向检察院提交了《请求检察院在决定是否批捕之前提讯XX申请书》,穷尽法律规定的一切权利为当事人争取取保候审。

  辩护人亲自将上述文件递交给检察官,并就本案中存在的各种问题进行多次沟通,确保实现当事人利益的最大化!

 

 孝顺女儿,十三天一直在伤心哭泣,终于笑了

  6月12日深夜传来好消息,当事人没有被批准逮捕,成功取保候审,重归团圆的一家人喜极而泣!此时,距当事人被拘留十三天,距辩护人接受委托仅八天。事后,当事人女儿说:"我们幸亏选择了京都,一切来得太不可思议了,太让人惊喜了!"

 左一:取保候审决定书,左二:当事人家属感谢律师

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