Brief description of the case:

Qi Moumou is a collector of handicrafts,including many precious and endangered wildlife products protected by the state,such as ivory products and rhinoceros horn products.After a long time,someone asked him to buy these handicrafts.Without considering too much,Qi Moumou contacted the source of goods to sell them to collectors who were looking for him.In September 2018,when he contacted the buyer,he was seized by the public security organ,and 8.5 kilograms of ivory products(valued at over 350000 yuan)were found on the spot.Qi was arrested after being detained for allegedly illegally selling and transporting precious and endangered wildlife products.

Case History:

1.First instance

In December 2018,the Procuratorate first filed a public prosecution accusing Qi of"attempting to illegally sell and transport 8.5 kilograms of precious and endangered wildlife products,with no attempt.".One trial with three postponements and five postponements.

2.Second instance

Due to appeals from other accomplices,the Intermediate Court ruled that the case should be remanded for retrial in August 2019.

3.First instance remanded for retrial

The procuratorate added a lawsuit,marking the value of 8.5 kilograms of ivory products at 350000 yuan.According to the"Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases Involving the Destruction of Wildlife Resources"issued in 2000,the public prosecution organ determined that the circumstances exceeding 200000 yuan were particularly serious,and the sentence was fixed-term imprisonment of more than 10 years.Considering the circumstances of the attempted crime,it was recommended that the sentence should be more than 5 years.

On December 15,2020,the court of first instance adopted the public prosecution opinion and sentenced the defendant Qi Moumou to a term of imprisonment of 6 years.

4.Additional entrustment

During the process of handling the case,the family of the first defendant in the case,Wang Moumou,also came to entrust the case.The law firm assigned two other lawyers from the criminal defense team to participate in the defense.Wang Moumou was also trapped by the sentencing rules more than 20 years ago,resulting in a case involving more than 300000 yuan being sentenced to 10 years and 6 months of heavy punishment.

5.Second instance and final instance

Immediately,Qi and Wang appealed.In May 2021,the Intermediate People's Court adopted the defense point of view to change the sentence.Qi Moumou's sentence was changed from 6 years'imprisonment to 2 years,and Wang Moumou's sentence was changed from 10 years'6 months'imprisonment to 5 years.

Defense strategy:

On the one hand,Lawyer Liu pointed out that"the court of first instance applied the sentencing standards 20 years ago without thinking,and should have applied but not applied the relevant sentencing standards of the latest relevant judicial interpretation(Fa Shi[2014]No.10),resulting in a serious imbalance in sentencing and violating the principle of compatibility between crime,responsibility and punishment.".Adhering to the important defense point raised in the first instance of this case,that is,in 2014,the sentencing standards for the crime of smuggling precious animal products have been significantly increased,while the sentencing standards for the crime of"illegally purchasing,selling,transporting precious,endangered wild animal products",which is a less invasive crime against legal interests,are still applicable to the judicial interpretation of 2000,resulting in a serious imbalance in sentencing,clearly violating the principle of compatibility between crime and punishment;The Jiangsu Provincial High Court has explicitly stipulated that"the parties to the case,their defenders,litigation agents,or public prosecution organs should conduct a case search and use the case as a reference for adjudication in order to support their claims."It is hoped that the second instance will pay attention to the"Criminal Trial Reference Case"No.1178 case submitted by the defender at the first instance and provide reference.

On the other hand,Lawyer Liu actively promotes the reform of the rule of law based on individual cases.During the trial of the first instance,he drafted the"Suggestions on the Issuance of the Judicial Interpretation for the Adjustment of the Sentencing Standards for the Crime of Illegal Acquisition,Transportation,and Sale of Rare and Endangered Wild Animal Products in the Criminal Law",which was reported by the members of the National Committee of the Chinese People's Political Consultative Conference(CPPCC)and deputies to the National People's Congress(NPC)in Nanjing,and actively appealed by professors and experts in the theoretical field.To the excitement of Lawyer Liu,at the end of December 2020,the"Guiding Opinions on Punishing the Crime of Illegal Wildlife Trading in accordance with the Law"issued by the two senior high schools and the third department was implemented,and Article 9 of the"Guiding Opinions on Punishing the Crime of Illegal Wildlife Trading in accordance with the Law"responded to the concerns of Lawyer Liu."If the relevant sentencing standards for such cases are obviously inappropriate,appropriate treatment can be made according to the facts,circumstances,and degree of social harm of the case."

Referee's keynote:

The court of second instance held that,"Regarding the issue of whether the original judgment imposed excessive penalties on the appellants Wang and Qi.Upon investigation,the specific sentencing standards for the crime of illegally purchasing,transporting,and selling precious and endangered wildlife products are still being applied to the Supreme People's Court's Interpretation on Certain Issues Concerning the Specific Application of Law in Criminal Cases of Destroying Wildlife Resources,which was implemented in 2000."The provisions of Article 5,that is,illegally purchasing,transporting,or selling precious or endangered wildlife products with a value of more than 200000 yuan,are especially serious and shall be sentenced to fixed-term imprisonment of not less than 10 years and shall also be fined or sentenced to confiscation of property.According to Article 9 of the"Guiding Opinions of the Supreme People's Court,the Supreme People's Procuratorate,the Ministry of Public Security,and the Ministry of Justice on Punishing the Crimes of Illegal Wildlife Trading in accordance with the Law",which came into effect in 2020,if the relevant conviction and sentencing standards for such cases are obviously inappropriate,appropriate treatment can be made according to the facts,circumstances,and degree of social harm of the case.Although the value of the wildlife products involved by the appellants Wang and Qi in this case is above 200000 yuan,taking into account the specific circumstances of the case,the degree of damage to wildlife resources,the appraisal price,and other factors,it is determined that the criminal circumstances of the appellants Wang and Qi are particularly serious and obviously inappropriate,which does not comply with the principle of compatibility of criminal responsibility and punishment in the criminal law."Therefore,the appeal grounds and defense opinions proposed by the appellant Wang and his defenders,and the appellant Qi and his defenders that the original judgment violates the principle of compatibility of crime,responsibility,and punishment are established,and this Court adopts them."

Conclusion:

Adapting punishment to crime is not a simple slogan.This case requires not only the professional quality and professionalism of defense lawyers,but also the legal thinking of judicial personnel that"integrates legal principles and emotions"and the professional quality of accurately grasping the"principle of adapting crime,responsibility,and punishment".

After three years and four trials,all the efforts behind winning 1460 days of freedom for the parties were worth it.What won was not only the appellant's freedom day and night,but also the trust and respect of countless relatives and individuals in the judiciary and the current rule of law in China.

(This article is translated by software translator for reference only.)