(This article is sourced from Lawyer Tan Miao's Criminal Debate Heart Law, written by Tan Miao)

Criminal defense lawyers should attach great importance to the certainty of concepts, and only by thinking correctly can they express themselves accurately.

1、 Basic requirements of uniformity

Every concept needs to be expressed through words. The same concept can be expressed using different words, and the same word can also express different concepts. If criminal defense lawyers are not familiar with the diversity of forms of language used to express concepts, they may engage in meaningless disputes when using synonyms because they do not know that they express the same concept; When using polysemous words without distinction, mixing words that express different concepts together makes a logical mistake of confusing concepts. Only by solidly mastering uniformity can we avoid logical errors that confuse concepts and ensure the certainty of thinking. Compared to ignorance, irrationality appears even worse.

The basic content of uniformity is that any idea is equivalent to itself. The formula for uniformity is: A is A, or if A, then A. The logical requirement for uniformity is that in the same thought process, an idea must remain certain and consistent. This logical requirement includes three aspects: firstly, the same thinking process is aimed at the same object at the same time and under the same conditions; Secondly, in the same thought process, every idea must be deterministic; Thirdly, in the same thought process, each idea should be consistent before and after.

There are two main types of logical errors that violate uniformity: concept substitution and topic substitution. Swapping concepts is the process of confusing or equating two different concepts in the same thought process, thereby swapping one concept for another. Swapping topics is the process of confusing or equating two different topics (judgments or propositions) during the argumentation, in order to replace the original proposition being argued with one topic.

Mr. Wang Meng's article "Eloquence Disorder" vividly depicts an eloquent patient who likes to switch concepts.

A doctor introduced to me that they had contact with a patient with speech disorder in the outpatient department.

The doctor said, "Please sit down

The patient said, "Why should I sit? Are you trying to strip me of my right not to sit

The doctor had no choice but to pour a glass of water and said, "Please drink some water

The patient said, "Talking about the problem in this way is one-sided and therefore absurd. Not all water can be drunk. For example, if you add potassium cyanide to water, it will definitely not be drinkable

The doctor said, "I didn't put any poison here. Don't worry

The patient said, "Who said you put poison? Did I falsely accuse you of putting poison? Did the prosecutor's indictment say you put poison? I didn't say you put poison, but you said I said you put poison. You are putting poison that is even more poisonous than poison

The doctor sighed helplessly and changed the topic to say, "The weather is nice today

The patient said, "It's pure nonsense! Just because the weather is good here doesn't mean the whole world will have good weather today. For example, in the Arctic, the weather is very bad today, with strong winds, long nights, and icebergs colliding

The doctor couldn't help but retort, "Isn't this the Arctic

The patient said, "But you shouldn't deny the existence of the Arctic. To deny the existence of the Arctic is to distort the truth and have ulterior motives

The doctor said, "You can go

The patient said, "You have no right to order me to leave. This is a hospital, not a public security agency. You cannot arrest me, you cannot shoot me

After multiple investigations, it was found that the patient had participated in the writing team of "Liang Xiao" at that time, and it is estimated that it may be a sequelae.

This novel vividly depicts the process of an eloquent patient constantly switching concepts, from "sitting" to "drinking water", then to "poison", and finally to the "North Pole". By distorting every concept of the other party and switching every concept, the patient's thinking is completely unclear, which makes normal communication impossible.

2、 The criminal facts accused in the indictment should be clearly defined

Only with accusations can there be defense. If the charges are not clear, the defense will become aimless and unable to start.

The indictment should contain clear allegations of criminal facts, which is a mandatory requirement of the Criminal Procedure Law. Article 176 of the Criminal Procedure Law stipulates: "If the People's Procuratorate believes that the facts of the suspect's crime have been found out, the evidence is reliable and sufficient, and criminal responsibility should be investigated according to law, it shall make a decision to prosecute, initiate a public prosecution to the People's Court in accordance with the provisions of trial jurisdiction, and transfer the case file and evidence to the People's Court

The above two legal provisions address two interrelated issues: firstly, the prosecution standard for the prosecution of a crime by the public prosecution is that the criminal facts are clear, the evidence is reliable, and sufficient; The second is the pre-trial review standard of the judicial organs, which is whether the indictment has clear charges of criminal facts. Although this is the judgment standard of both the procuratorate and the judiciary, its essence is completely the same. If the criminal facts are clear, then the criminal facts accused in the indictment are naturally 'clear'. If the criminal facts accused in the indictment are 'unclear', it means that the criminal facts are unclear, ultimately due to insufficient or unreliable evidence.

When interpreting the indictment, criminal defense lawyers should first focus on whether the alleged criminal facts are clear. Clear criminal facts are not only a clear requirement of the Criminal Procedure Law, but also a clear requirement of the uniformity of formal logic, because clear accusations of criminal facts correspond to the clarity and certainty of concepts.

I remember a discussion many years ago [1], the question was whether the word "etc." could be used in the indictment. One viewpoint holds that the word 'etc.' can be used conditionally; Another viewpoint suggests that the word "etc." should be used with caution or even not. In my opinion, these two viewpoints do not conflict, as they respectively address the two different uses of the word 'etc.'. According to the interpretation of the Xinhua Dictionary, the word "etc." as an auxiliary word represents a class or group, and has two different meanings: "ending with a bad ending after listing" and "incomplete listing".

If it is "listed with a final ending", the use of the word "etc." will not affect the defense's right to defense. For example, the indictment uses the phrase 'the defendant Zhang committed three charges of theft, robbery, rape, etc.'. According to the interpretation of the text, the only conclusion can be drawn that the defendant is guilty of theft, robbery, and rape, and there cannot be a fourth charge.

If it is' not listed enough ', it is another matter. If there is no complaint, there must be a complaint. One of the functions of an indictment is to delineate the scope of the trial. If the scope of prosecution is not clear, it will lead to an unclear scope of trial. Even if the criminal act is committed by the defendant, as long as the indictment does not clearly state the charges, the court should not include it in the scope of the trial, otherwise it is an illegal trial.

Based on this, in the factual description section of the indictment, words with clear connotations and extensions should be used. Even if the word "etc." is used, its second meaning should not be used, that is, it should not indicate "incomplete enumeration", otherwise it will make the mistake of unclear charges. For example, in the indictment of the crime of bribery, there is a statement that "the defendant took advantage of positions such as A, B, and C." Based on their understanding of the case materials, the prosecution, defense, and trial parties cannot reach a consensus on whether the defendant's position should be limited to these three positions or include other positions. For example, taking the indictment of bribery as an example, when describing the defendant's behavior, it is stated as "taking advantage of their position to seek benefits for the briber in D-class business". However, in the case file materials, there are also E-class business related to the briber. So, is the "etc." here "not listed enough" or "ending after listing"?

At the legislative level, in order to adapt to the ever-changing social life, it is understandable for legislators to use "etc." to determine their behavior, but this approach does not necessarily violate the "clarity" requirement of the principle of legality. At the judicial level, the vague word "wait" should not be used in the indictment. Because the use of "etc." is not simply a matter of language, it also involves an understanding of the function of the indictment and a correct understanding of the principles of criminal trial, and should be treated with caution.

3、 Public prosecution cases that violate the same principle

In the summer of 2022, while handling a case of job-related crimes, the author encountered a controversial issue related to the character "etc.

The indictment alleges that between 2014 and 2021, the defendant Du took advantage of his position as the Chief Financial Officer, Deputy General Manager, Deputy Secretary of the Party Committee, Vice Chairman, General Manager, Secretary of the Party Committee, and Chairman of a state-owned holding limited company (hereinafter referred to as Company A) to seek benefits for others, and received a total of 3.77 million yuan in gifts from others in the form of loan interest, real estate transactions, mahjong gambling, etc. ”

In the indictment, Company A has a clear meaning because it is explicitly referred to as the abbreviation of a state-owned holding limited company. The indictment accuses the defendant Du of taking advantage of his position to seek benefits for others. The specific positions involved in the case refer to his convenience in serving as the Chief Financial Officer, Deputy General Manager, Deputy Secretary of the Party Committee, Vice Chairman, General Manager, Secretary of the Party Committee, Chairman, etc. of Company A. It is worth noting that the indictment added the word "etc." after detailing the defendant's position. Since this "etc." followed closely after the defendant's position, rather than immediately after Company A, the word "etc." is only related to Company A and has nothing to do with other companies, whether it is an incomplete listing of their position or a final listing of their position.

In the trial of this case, the author requested the prosecutor to explain the meaning of the word "etc.", and the prosecutor replied that it referred to another state-owned enterprise, Company B. This explanation surprised me greatly. I never expected that the prosecutor's understanding would be that there were other companies besides Company A, which was an "incomplete list" of the companies where the defendant worked.

In the indictment, can the word "etc." refer to companies other than Company A? If so, does this accusation meet the requirement of "clear accusation of criminal facts" under the Criminal Procedure Law?

In fact, the defendant only works in Company A and not in Company B. And it is Company B, not Company A, that has economic dealings with the briber. Company B is a joint venture between Company A and Company C, but Company A is not the major shareholder of Company B, while Company C is its major shareholder. According to the relevant provisions of the "Minutes of the National Symposium on the Trial of Economic Crime Cases by Courts" (Fa Fa [2003] No. 167) and the "Provisions of the Supreme People's Procuratorate on the Standards for Directly Accepting and Investigating Cases by People's Procuratorates (Trial)" (Gao Jian Fa Shi Zi [1999] No. 2), the so-called "taking advantage of the convenience of one's position" includes not only the power to supervise, be responsible for, and undertake a certain public affairs in one's own position, but also the power of other state personnel who have subordinate or restrictive relationships in their position. Therefore, the so-called use of job convenience includes not only the use of one's own job convenience, but also the use of job convenience of other national staff members who have hierarchical or restrictive relationships. However, the indictment in this case only accuses the defendant Du of taking advantage of the position of "myself", and does not explicitly accuse him of taking advantage of the position of other state personnel with subordinate or restrictive relationships. Perhaps this is the mystery behind the use of the word "etc." in the indictment.

In this case, there is also a formal logic issue related to identity. As mentioned earlier, the expression of concepts cannot be separated from words. The same concept can be expressed using different words, and the same word can also express different concepts. The investigating authority in this case used the term 'management service object', and the prosecutor also used this term in court. However, this term is not a legal concept, and its similar legal concept is "administrative management object". What we need to examine is whether the terms "administrative management object" and "management service object" express the same concept? The administrative management object is a legal concept with clear connotations and extensions, while the "management service object" has never been a legal concept and does not have clear connotations and extensions. Therefore, the author believes that if these two words express the same concept, then since there is already a legal concept of "administrative management object", there is no need to duplicate it and use the term "management service object". Only when these two terms are not the same concept, does the term 'management service object' have the necessary independent existence.

Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Corruption and Bribery (Interpretation [2016] No. 9, hereinafter referred to as the "2016 Corruption and Bribery Interpretation")

Article 13: If any of the following circumstances occur, it shall be deemed as "seeking benefits for others", and if it constitutes a crime, it shall be convicted and punished in accordance with the provisions of the Criminal Law on bribery crimes:

（1） Actual or promised to seek benefits for others;

（2） Knowing that others have specific requests;

（3） Not being entrusted during the performance of duties, but later accepting property from others based on the reason for the performance.

If state officials solicit or accept property worth more than 30000 yuan from subordinates with superior subordinate relationships or managed personnel with administrative management relationships, which may affect the exercise of their powers, it shall be deemed as a promise to seek benefits for others.

According to Article 13, Paragraph 3 of the 2016 Interpretation on Corruption and Bribery, power money transactions are recognized based on emotional investment. In other words, the transaction object of power money transactions is changed from "specific entrusted matters" to "grateful investment". However, this accusation only applies to government officials and not to them, as the term 'administrative management object' is explicitly used in this provision. Since the briber is a subject of administrative management, the bribe taker can only be a staff member of an administrative agency, and administrative agency staff members are state agency staff members, not broad state staff members. In fact, the identity of the defendant in this case is a leading cadre of a state-owned enterprise. Although his rank is at the level of a department head of the enterprise, he should not belong to an administrative staff member, let alone a state staff member. The bribers are all businessmen, and their business dealings with B Company's subsidiary enterprises are a commercial contract relationship between two equal civil subjects. There is no administrative relationship between equal business entities. Therefore, in this specific context of the case, the briber should not be recognized as an "administrative management object", and the provisions of Article 13 (3) of the 2016 Interpretation on Corruption and Bribery should not apply to this case.

4、 Conclusion

The legal duty of the criminal defense lawyer is to put forward the materials and opinions that the suspect or defendant is innocent, the crime is minor, or their criminal responsibility is mitigated or exempted. There is an implicit premise here that the prosecution may make mistakes, mistaking innocence for guilt and mistaking a minor offense for a serious one.

In a sense, criminal defense work is about correcting mistakes. Therefore, the core competitiveness of criminal defense lawyers lies in their ability to correct errors, and the level of error correction ability depends on the method of error correction. Things must have laws, and then they can be accomplished; To observe water, one must observe its waves. So how should criminal defense lawyers effectively improve their ability to correct errors? What are the "techniques" and "ways" of error correction?

People generally value details, even devil like details. Details determine fate, but not every detail can determine fate. Why can this detail determine fate, while that detail cannot determine fate. What is the power behind the details that can determine fate? In my opinion, the devil hidden behind the details is the opponent's logical error. Criminal defense lawyers can only win in court by deeply understanding the logical loopholes of the prosecution and firmly grasping the key details that can determine their fate.

references

[1] Su Qingtao and Wang Enhai: "Can the criminal facts accused in the indictment be written as' etc. '", published in the Procuratorate Daily on February 2, 2015.