As long as I decide to take this case, there is only one agenda in front of me-winning this lawsuit. Regardless of the consequences, I will use all reasonable and legal means to go all out to rescue the parties. ? Allen dershowitz

Second, the background of the case

At the beginning of 20 19, the party Li bought a small tanker, anchored in a hazardous chemicals transportation company, started a refined oil transportation business and lived a leisurely life. Unexpectedly, in April 2020, Li was seized on the spot by the public security police when transporting diesel at a construction site, and was immediately summoned to the case. On the same day, Li Yin was put on file for investigation on suspicion of illegal business operation. The next day, the case-handling unit handled a bail pending trial for Li and was not detained in criminal detention, which means that Li did not have to go to the detention center to "report" for the time being. In May, 2020, Li added my WeChat and talked about his case, saying that he was convicted of illegal business operation for buying and selling diesel oil, wondering whether it would constitute illegal business operation, and also mentioned the flash point of diesel oil. It seems that Li is still a professional, at least he knows a little. At that time, I simply analyzed the case to Li on WeChat, and I still wanted to invite Li to come over. After coming here, some things can be made clear and easier to talk about. But unfortunately, I have no appointment. Since then, there has been no contact, and I thought this case was ruined.

202 1 1 Li suddenly contacted me on wechat, saying that his case had been pronounced, and he was sentenced to one year and two months in prison, suspended for two years, and fined, asking me if I had any hope of appealing. I was given a suspended sentence. Do you want to fight for innocence or what? This is a question in my heart. After meeting Li, Li said that he had two friends, and the situation was similar. He was not investigated for criminal responsibility but was fined. Can he fight for innocence or reduce his sentence? To tell you the truth, I think it's really difficult.

Third, accept the entrustment.

"Li, you have pleaded guilty. The procuratorate suggested that you can suspend your sentence, and the court also sentenced you to probation? The appeal of innocence is risky, and maybe the procuratorate will protest, "I said.

"Lawyer, you do something, I just want to appeal and see if I can change it, even if the sentence is less. When I signed the confession, the sentencing recommendation was only six months. Later, the court may feel lighter and the procuratorate adjusted it. Didn't tell me how much it was. I think a two-month probation for one year is also very heavy. " Li said.

"What? Did you sign for six months? " My head is also thinking quickly. I have an answer and can appeal. "You mean it's better to fight for a lighter appeal than to fight for innocence, right?" I asked again.

"Yes," said Li.

"Well, in this case, we also inquired about big data retrieval. The illegal operation of diesel oil mainly involves two aspects, one is the Regulations on the Safety Management of Hazardous Chemicals, and the other is the Measures for the Administration of Refined Oil Market. Your diesel is purchased from a regular CNPC gas station, so there should be no danger. Of course, it also depends on whether there is identification in the case file. In addition, the Measures for the Administration of Refined Oil Market was abolished on July 1 2020, and it may become legal to sell diesel without a license. This is our possible innocent defense idea and strategy in the future. " I paused, and then said, "What about the appeal? We may not be able to mention the reasons for the appeal of innocence. Let's mention for the time being that the confession and repentance signed at the beginning was six months, and now the sentence of two months a year is too heavy. In this case, we did not violate the provisions of confession and punishment, and the procuratorate should not protest. "

"Well, it's up to you."

In this way, Li also accepted our defense opinions, and after discussing the agency fee with us, he signed the agency contract and power of attorney.

Fourth, the second-instance defense

After determining the basic defense ideas and writing the appeal, we went through the entrustment procedure, signed the appeal, went to the court of first instance and met the clerk who handled the case in the first instance.

"What? Lee wants to appeal? The case that can be appealed has been suspended. " The clerk said.

"We also respect the meaning of the parties. He wants to appeal, and we have no reason to stop him, "I said. "In addition, in addition to submitting an appeal, we also want to take a look at the file of the first instance. Do you think so? "

"Yes, you can shoot." The clerk readily agreed.

After the appeal was filed, the appeal period also expired on the third day. I remember it was a Monday. That Friday afternoon, I was on a business trip. Li called and said that the court of second instance called him and asked him to go to the court at 9: 00 next Monday morning. Coming to the Intermediate People's Court so soon, I thought. I told Li on the phone that the court of second instance informed you that it wanted you to make an interrogation record, because the law stipulated that the court should interrogate the parties during the second instance. May I ask you, don't you have anything to add except the factual reasons for the appeal? You can say: is it possible that this case will be innocent, because the Measures for the Administration of Refined Oil Market have been abolished, so there is not much left.

After I got off the phone with Li Tong, I immediately contacted the judge in charge of the second instance and told the court of second instance that I was Li's defense lawyer for the second instance. The entrustment procedure of the second trial was submitted at the appeal of the first trial. Let's see if there are any procedures in the file of the second trial. Besides, we are prepared to defend ourselves in the second trial. The judge of second instance replied to me: I read your procedure. You can plead not guilty at the second trial and submit a written defense opinion as soon as possible.

After returning from a business trip, we worked overtime to complete the work of filing a case, searching big data, hearing applications, writing a defense of the second instance, and communicated with the judge of the second instance in time. The court of second instance listened to our opinions in detail and said that it would study it again to see if it was necessary to hold a court session.

In a few days, we contacted the court of second instance again to inquire about the progress of the case. The court of second instance said that the case had been concluded, and the collegial panel considered that some facts of the case were unclear, and the application of law was wrong, and the original judgment was revoked and sent back for retrial. Hearing this, I think it is hopeful to send it back for retrial and change the sentence.

Verb (abbreviation of verb) is sent back to the first instance for retrial.

After the case was sent back for retrial, we quickly contacted the judge in charge of the first instance and submitted our entrustment procedures. Now everything is ready, just waiting for the trial.

In March, 20021year, the case was opened as scheduled, and we also had detailed pre-trial counseling with Li Jin before the trial. Li still insists on pleading guilty and admitting punishment in principle and cannot be changed. Our lawyer insisted on a plea of not guilty.

Our defense view is that the Measures for the Administration of the Refined Oil Market stipulates the licensing conditions for the wholesale, storage and retail of refined oil, and the operation of diesel oil requires a license according to law, but this provision was abolished on July 1 2020. At this point, there are no clear and detailed licensing conditions and procedures for retail diesel, and it should not be convicted and punished for the crime of illegal business operation.

Although some people think that even though the Measures for the Administration of the Refined Oil Market have been abolished, the Catalogue of the State Council's Decision to Set Administrative Permissions for the Administrative Approval Items Needed to Be Preserved is attached to the Decision of the State Council Municipality on Setting Administrative Permissions for the Administrative Approval Items Needed to Be Preserved, and the superior law takes precedence? 183? The project of "Qualification Examination and Approval for Wholesale, Storage and Retail of Petroleum Refined Oil" still exists, and diesel oil as refined oil still needs examination and approval and permission. Article 18 of the Administrative Licensing Law stipulates that "when establishing an administrative license, the implementing organ, conditions, procedures and time limit of the administrative license shall be specified". With the abolition of the Measures for the Administration of Refined Oil Market, the State Council has not formulated or authorized other departments to formulate administrative regulations or departmental rules to clearly define the conditions, procedures and duration of diesel oil administrative licensing. Therefore, even if there is a superior law, there are no specific implementation rules for administrative licensing, and there are still laws to follow.

Therefore, due to the change of the law, Li needs an administrative license to operate diesel, so Li's behavior does not violate the state regulations and does not constitute the crime of illegal business according to law.

During the trial, in fact, the prosecutor did not respond to this, but insisted that he was guilty enough and did not talk about the reasons.

After the trial, the judge of first instance was also embarrassed. When we submitted the defense and some innocent cases, the judge of first instance also asked us to help find out whether there were any convicted cases. To tell the truth, there are quite a few, but we can only say with a wry smile that we didn't find them, and what we found was innocent.

Later, we communicated with the court, and our opinion was whether criminal punishment could be exempted if not acquitted. "The fine has been paid in the original trial and cannot be refunded. You will be suspended from fixed-term imprisonment and fined. "

This result, to be honest, has exceeded Li's expectation. Li Xinran accepted, but we were still a little helpless, although we had tried our best.

After the verdict, Li also asked us whether we should appeal again. In fact, we know that he has accepted the result of this case in his heart, and we follow Li's sincerity.

Conclusion of intransitive verbs

Is it a pity that the case didn't end in innocence? Regret. But to be honest, this is the best ending without uncertainty and complete innocence. The pursuit of customers is our unremitting motivation!