Dear Chief Justice and Judge

Zhejiang Liqun Law Firm has accepted the commission of a relative of Qian and designated myself as Qian's defense representative to participate in the criminal litigation activities of this case. After accepting the commission, this defender met with the defendant Qian, carefully studied the indictment, consulted relevant evidence materials, and just now participated in the court investigation and listened to the prosecution opinions expressed by the prosecutor. In order to safeguard the legitimate rights and interests of the defendant, assist the Judicial panel to accurately determine the facts and correctly apply the law, we hereby issue the following defense opinions, hoping that the court can adopt them.

1. Opinions on facts

The defender has no objection to the accusation in the indictment that the defendant Qian's behavior constitutes concealment of the crime and should bear criminal responsibility. However, the defender does not agree with the prosecutor's sentencing suggestion that the defendant Qian's circumstances are serious. The defense believes that based on the evidence facts of this case, there is no sufficient evidence to prove that the defendant Qian's illegal gains have reached the legal standard of serious circumstances. The specific reasons are as follows:

(1) On the Definition of "Illegal Income" and the Methods of Determining the Amount

The defense believes that the "amount of illegal gains" in this case should refer to the amount of profits that the defendant conceals and conceals from the criminal gains. Since it is a profit, in terms of amount, it should be the difference between the amount of income sold to the next owner and the amount paid to the previous owner. The indictment accuses the defendant Qian of using over 1.1 million yuan to acquire from the previous company and selling it to the next company at an additional price of over 1.3 million yuan, resulting in a profit of around 180000 yuan. The defense believes that the prosecutor's allegations are vague in terms of amount and lack corresponding evidence to support them. The prosecutor found that the profit of 180000 yuan was only based on Qian's confession, but the defense believes that Qian's confession is not a reflection of objective facts. On the one hand, when Qian made his confession, he was not clear which of his actions violated the criminal law. He mistakenly confused the profit from normal transactions with the profit from illegal transactions and made corresponding statements; On the other hand, in Qian's trading activities, he did not engage in any bookkeeping behavior. Imagine, in the event of so many transactions occurring during the time of the crime, who could accurately remember his profit amount without checking the accounts? Therefore, the defender believes that in order to investigate Qian's "illegal income amount", it is necessary to verify the transaction situation based on objective evidence materials and make a fair and just conclusion that is in line with reality.

(2)The prosecution accuses the defendant Qian of selling more than 1.3 million yuan to the next family, but the facts are unclear and the evidence is insufficient

①According to the Alipay transaction records between Qian and more than 20 of his subordinates, Qian had more or less expenses in his transactions with eight of them, totaling 43124 yuan. Regarding the nature of these payments, it has just been investigated during the trial. Qian explained that these are refunds for unfinished transactions. Since there are refunds for these transactions, the defense believes that these payments should be offset and deducted from the income amount.

②The public prosecution organ counted the transaction between Qian and Zhang in the Corpus delicti of this case, which is extremely wrong! From a factual perspective, the transaction between Qian and Zhang is a normal act of reselling game accounts and equipment. Qian was originally a "game merchant", what is "game merchant"? Some game players nowadays use the game as a platform to obtain profits by buying and selling game resources such as accounts and equipment through the game. Even during the period when Qian participated in illegal activities, he did not abandon legitimate and legitimate reselling business. In the ordinary process of playing the game, when he saw someone quit and sold their own account and other items, he would buy and then resell them to others for profit, And Zhang is one of his legitimate trading clients. From an evidential perspective, Qian explicitly stated in his interrogation transcript on August 16th (also known as Qian's third transcript) that "Zhang was doing legitimate business with me, and I collected a game account through legitimate channels at a low price before selling it to him." Qian has already defended the situation where Zhang was included in several subsequent transcripts, This is because there were many people involved in the later transcripts and the case handlers were eager to send money back to the Detention center and urged him to sign and make a pledge. Qian did not carefully check the corresponding transcripts. The defender believes that Qian's explanation is reasonable and in line with reality. Moreover, there is currently no evidence to prove that the items sold by Qian and Zhang belong to illegally stolen game property, so they do not have the prerequisite to constitute "concealing or concealing criminal gains", that is, they cannot prove that the traded items belong to the "criminal gains and their generated profits" mentioned in Article 312 (1) of the Criminal Law.

In summary, the defense believes that the public prosecution calculated the refund amount of over 40000 yuan and the sales amount of the transaction with Zhang during the sales period of Qian within 1.3 million yuan, lacking conclusive evidence and unable to form a complete chain of evidence. Based on the principle of "the interests of the suspect belong to the defendant", the defense requests the court not to recognize these facts, exclude the relevant amount, and protect the legitimate rights and interests of the defendant.

2. Some suggestions on sentencing circumstances

Firstly, the defendant in this case, Qian, has consistently performed well and has no criminal record. He is a first-time or occasional offender, and may be given a lighter punishment as appropriate; Secondly, after being brought to justice, Qian voluntarily confessed and gained a clear and profound understanding of the illegal and criminal nature of his behavior. He also comprehensively reflected and reviewed the social harm of his behavior and actively returned the stolen goods, making him a relatively easy target for reform; Once again, Qian did not directly participate in the specific behavior of damaging the computer information system, and the harmful consequences caused by it were relatively small; Finally, the defendant Qian was just in his early twenties and was in a critical period of life growth. He had his own legitimate economic activities, but due to his weak legal knowledge and legal awareness, he only saw short-term benefits and ignored the criminal traps under the guise of interests. He fell into the quagmire of crime due to his mistakes, and his lessons were profound.

In summary, although the defendant Qian's behavior constitutes a crime, his subjective crime is less malignant and has lower social harm; Also classified as a first or occasional offender; Moreover, the defender has a good attitude of pleading guilty, actively returning stolen goods, and sincerely repenting. The defender requests the Judicial panel to carefully check the relevant amount, comprehensively consider the above defense opinions, and in accordance with the basic criminal policy of tempering justice with mercy, and the principle of combining punishment with education, give the defendant Qian a lighter punishment.

The above opinions are for reference and adoption by the Judicial panel.

Zhejiang Liqun Law Firm

Lawyer Feng Yi