Basic case

The defendant Yang used to be the driver of the victim Zhang. From July 2019 to March 2020, Yang went to Zhang's office in a certain district of Beijing many times and stole more than 30 cases of Moutai and 2 Patek Philippe watches stored here. Pieces (appraisal value 540000 yuan).

handling process

In the process of handling this case, in view of the value of Maotai liquor, the defender proposed that Maotai liquor had not been identified for authenticity and value, and could not be determined as the amount of crime at the purchase price. In response to the problem of Patek Philippe watches, the defender found that the actual transaction price of the watches involved was far from the appraisal value by inquiring about the transaction records of Chinese and foreign auction websites and second-hand famous watch trading websites and consulting Patek Philippe specialty stores. Therefore, the defender consulted the experts of the National Jewelry and Watch Appraisal Center for argumentation, collected evidence from the experts by means of investigation records, and submitted it to the procuratorial organ in combination with the defense opinions. After careful consideration, the public prosecutor did not take the first appraisal opinion as the basis for the final case.

During the trial, the court decided to initiate a re-appraisal. After re-appraisal, the two Patek Philippe watches involved were worth 247000 yuan. During the trial, the defender clarified the defense views and basis in detail, and fully cross-examined and debated with the prosecutor, the victim and the agent ad litem. After that, the defendant Yang's sentence was reduced from more than ten years in prison to eight years in prison.

legal analysis

The appraisal opinion is the key to the conviction and sentencing of the case. It is the product of a high degree of combination of law and other professional knowledge. It has strong evidence effect due to the professionalism of problem solving and the relative independence of organization and implementation, and plays a pivotal role in the case. Compared with other forms of evidence, the appraisal opinion aims to solve the problem that requires the use of specialized knowledge and experience to make judgments. Therefore, the content of the proof is both professional and limited, and it needs to rely on the confirmation of other evidence to play a role. In this case, the Patek Philippe watch involved in the investigation stage of the identification of the existence of the identification value is too high, the identification method is wrong, the application of the law is wrong and other defects.

1. appraisal opinion does not determine the physical status of the base date.

According to the provisions of Article 5 of the "Clock Price Certification Rules", the price determination personnel shall conduct physical inspections in conjunction with the price determination assistance letter and related materials, and may invite relevant experts to participate when necessary. The difference between the physical condition of the timepiece in question on the date of physical inspection and the date of price determination. If it is impossible to determine the physical status of the reference date of the clock involved, the case-handling organ shall be required to make it clear in writing. Photographs should be taken of the front, back, sides, brand identification, all visible numbers and markings, worn parts, and accompanying materials of the clock involved.

In this case, the two clocks involved in the case have been purchased for a long time, no valid purchase certificates such as invoices have been provided, and the physical objects are in a worn state. Witness Liang Moumou mentioned that "the 3940 model Patek Philippe watch has some water, and there is no package or invoice". Witness Zhang Moumou also proposed that "the watch has been repaired, replaced with belts, and mailed to Shanghai for cleaning and maintenance", however, the two appraisal opinions did not explain the old and new degree, wear degree and defect state of the watch. For watches that have been used for more than 20 years, no photos of worn parts were taken.

Incorrect method of 2. identification, expert consultation method instead of market method

The common methods of price determination of stolen property are market law, cost method, expert consultation method and so on. In judicial practice, the most commonly used is the market law, the market price to determine the price of the appraisal property. Only the price determination target has special attributes and strong professionalism, such as calligraphy and painting, jewelry, jade, wild animals, etc., these properties have no or few transactions in the market, and do not have independent and continuous profitability, and their value It does not mainly depend on cost, and its artistic value, scientific value, historical value and other aspects are very different, and in many cases they are not comparable, this makes it difficult to determine the price of such property using the cost method, the income method or the market law that meets the requirements of the norm, in which case the expert consultation method is used. The Patek Philippe watches involved in this case belong to the market circulation, different from calligraphy and painting, jewelry, jade, wild animals and other items, the watches involved in the case in Jingdong, idle fish, pawn shops, watch shops and other second-hand markets are sold, so the identification method of this case should adopt the market method rather than the expert consultation method.

3. appraisal opinion does not provide expert qualification

The expert consultation method is greatly influenced by subjective factors, such as the professional level and authority of experts, the psychological state of experts, the understanding and interest of experts in price determination, the guidance of price determination personnel to experts, etc., which may affect the accuracy of price determination conclusions. It is not clear who the experts consulted in this case are, how many experts have been consulted, and whether the experts are qualified. In the absence of the above materials, it is difficult to recognize the authenticity of the appraisal opinion.

4. clock involved in the case was not identified according to the state of loss of the stolen goods.

According to the provisions of Article 5 of the Notice of the Price Certification Center of the National Development and Reform Commission on Printing and Distributing the Rules for the Determination of the Price of Stolen Property (for Trial Implementation) issued by the Price Certification Office [2014], if there has been a significant change in the physical condition compared with the reference date, and other circumstances in which the condition on the reference date cannot be determined, the price can be determined according to the loss condition. In this case, 3940 type of watch was flooded. After the 3842 type of watch was purchased by a second-hand luxury store, it was repaired, replaced with a belt, and mailed to Shanghai for cleaning and maintenance. It is not the original state of the appraisal object, but belongs to the situation that the state of the reference date cannot be determined. The public security organ should provide the state of the reference date, the old and new degree and the use situation, but there is no corresponding content in the appraisal conclusion, in other cases where the status of the reference date cannot be determined, the identification shall be based on the state of loss of the stolen item.

The appraisal value of the 5. is too high and does not match the market value.

Jingdong, Taobao and Xianyu app all show that 3940 Patek Philippe watches are on sale in several second-hand luxury stores. 95% of the new watches are sold at prices ranging from 165000 to 223000. The purchase date of the watches involved in this case is long, and the price should be far lower than the sales prices of Jingdong, Taobao and salted fish. Witness Zhang Moumou is the appraiser of the luxury second-hand store, and witness Liang Moumou is a pawnshop staff. The two have a certain understanding of the luxury watch market, but the two have an estimate of only more than 100,000 yuan for the watch involved. The value determined by the opinion is much higher than the valuation of the watch involved by the second witness. Therefore, in this case, the appraisal opinion of the watch involved in the appraisal value is too high, ranging from the market value, but also inconsistent with the professional assessment value.

Introduction to the Author

Lawyer Wang Yawei

Wang Yawei, Deputy Director of the Board of Supervisors of Beijing Huixiang Law Firm, Director of the Criminal Law Professional Committee.

Business areas
Criminal Defense, Criminal Prosecution, Criminal Compliance

educational background
Northwest University of Political Science and Law Postgraduate

Typical case
1. Ai Moumou participated in underworld organizations, provoked troubles, forced transactions, extortion, illegal detention, and gambling cases, and reduced four criminal facts during the review and prosecution stage; 2. The deputy director of the executive board of a provincial high court and a member of the trial committee were suspected of taking bribes, The source of a huge amount of property is unknown, and the execution of the judgment ruled abuse of power, reduce the amount of the crime of a huge amount of property with unknown sources; 3. Li, the deputy general manager of a virtual currency trading place, was suspected of the crime of opening a casino, and was released on bail pending trial during the review and arrest stage;
4. An intermediary incited the parents of the school district to cause trouble, suspected of provoking trouble, filed a defense of innocence, and the party was released on bail pending trial during the review and arrest stage;
5. In the case of corruption and bribery by the director of urban construction of a city in Shandong Province, he pleaded not guilty to the crime of corruption, but the court did not determine the name of the crime of corruption;
6. In the case of Yang's infringement of citizens' personal information, he filed a plea of innocence during the review and arrest stage. The party was released on bail pending trial, and the case was later revoked by the public security organ;
7. In Wang's fraud case, he filed a defense of innocence. During the review and approval of arrest, the party was released on bail pending trial. After the release of the bail pending trial expired, he was not transferred for review and prosecution;
8. In the case of Pang Moumou's fraud, he filed a defense of innocence. During the review and approval of arrest, the party was released on bail pending trial. After the release of the bail pending trial expired, he was not transferred for review and prosecution;
9. In the case of Yang's theft, the original appraisal opinion was overturned through investigation and evidence collection. After the public security organ re-identified, the sentencing file was reduced from more than ten years to less than ten years in prison;

Professional writings
1. Participated in the compilation of "Exploration and Research on Chinese Legal Theory and Practice in the 21st Century", collected by the Supreme People's Court, and issued the "Supreme People's Court Collection Certificate";
2. Introduction to Criminology, China University of Political Science and Law Press.

Professional Articles
1. "Analysis of Litigation Fraud" won the third prize of the court's essay;
2. "On the Elimination System of Young Criminal Records" won the first prize of the Juvenile Delinquency Research Association.