China: 从司法鉴定入手,寻求二审案件无罪辩护切入点

Last Updated: 2 September 2019
Article by Cheng Xiaoxuan and Wang Zhaofeng
Most Read Contributor in China, September 2019

从司法鉴定入手,寻求二审案件无罪辩护切入点 ——姚某等人贪污案二审无罪辩护被发回重审办案手记

2015年8月4日,武汉市Q区法院作出一审判决,认为被告人姚某、黄某某、刘汉某事先通谋后,相互勾结,利用姚某职务上的便利,使用虚构事实、隐瞒真相的方式,帮助黄某某以超低价格骗得国有资产,非法占有公共财物数额达人民币71余万元,三被告人的行为均已构成贪污罪。其中,判决姚某有期徒刑十年。姚某不服,上诉到二审法院。家属找到我们要求代理二审,经过深入研究一审卷宗,并多次会见当事人姚某,进行调查取证,我们梳理出跟一审不同的辩护思路,提出一审认定被告人构成贪污罪的事实不清、证据不足的无罪辩护,后被二审法院发回重审。

一、案情介绍

被告人黄某某原系武汉市红十字会下属药材公司职工,其知道武汉市红十字会位于武汉市W区得胜桥290号的房屋作为上个世纪30年代的老房子,年久失修,还有多位租户长期居住,不交租金,已经成为红会的包袱,2007年5月,其欲低价购买该处房产,找该会分管后勤、房产管理的武汉市红十字会副秘书长被告人姚某(副处级)帮忙,姚某提出红会卖房要具备两个条件:一是要有向领导汇报的理由,二是必须单位购买房产,不卖给个人。于是,黄某某找来在社会上专门给别人做房子维修和拆迁的被告人刘汉某,让其以武汉市W区房地产公司粮道街房管所工作人员的名义,开正式介绍信到红会与姚某等人洽谈,并提出该处房屋是危房,急需维修。姚某以此为由,向武汉市红十字会相关领导提出出售该处房产的建议,最终促使该会作出售房决定。黄某某承诺给予姚某10%的好处费,被姚某当场拒绝。

尔后,被告人姚某按照黄某某、刘某某提出的售房价格及《武汉市城市房屋拆迁管理实施办法》的规定(拆迁自管住宅时,产权单位仅能得20%的货币补偿,承租人可得80%的货币补偿)向红十字会领导汇报,致使该会于2007年6月29日与青菱建筑公司(黄某某指定的公司)签订了武汉市存量房买卖合同,以人民币200,000元将位于得胜桥290号房屋卖给L公司。被告人黄某某先后通过L公司向武汉市红十字会实际支付购房款及补偿款共计人民币240,000元。

2007年7月31日,武汉市红十字会相关领导得知该处房产因系国有资产,出售该房产依法应当报财政部门审批,并采取拍卖、招投标等方式进行,而该会出售房产的行为已违反相关法规,即召开办公会并作出暂停房产过户的决定。黄某某通过L公司多次找红会交涉,并向红会下发最后通牒,要求红会在《具结书》(上面写明红会有有权处分其财产的权力,290号房屋无任何产权纠纷)上盖章。后姚某在请示谢某会长同意后,让办公室主任刘某在《具结书》上盖章,被告人黄某某因此得以办理了该房产的过户手续。

2007年9月25日,L公司取得武汉市W区得胜桥290号房屋第2、3、4栋共210.97平方米的房屋所有权,价值人民币717000元;第1栋房屋中的34.50平方米,价值人民币239775元,由于历史原因无法办理过户。上述4栋房产均由黄某某实际控制并享有收益。

其间,被告人黄某某根据被告人姚某的意见,将其按照事前约定准备给予被告人姚某的人民币100,000元,赞助给了武汉市华蔚文化传播有限公司。事后,被告人黄某某给予被告人刘汉某人民币220,000元。

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