Expert opinion is a common type of evidence in criminal judicial practice. In property crime cases, the price appraisal opinion is often the key factor to determine the crime and non-crime, and the severity of sentencing. However, there are some problems in some price appraisal work, such as inconsistent appraisal standards, unscientific appraisal system and nonstandard appraisal opinions, which have brought many troubles in practice. In view of this, People’s Procuratorate magazine and Beijing Dongcheng District Procuratorate selected typical cases, invited experts together, and discussed the difficult problems of case-handling personnel in accepting price appraisal opinions.
Determination of price appraisal benchmark
The price appraisal of goods involved in criminal proceedings involves basic issues such as conviction and sentencing. Fan Chongyi, honorary president and professor of the Institute of Litigation Law of China University of Political Science and Law, believes that the procuratorial organ should examine five specific objective standards when examining and prosecuting: First, consider the pricing base standards, including market mediation price, government guidance price and merchant pricing. Second, about the source basis of price appraisal materials. If it is genuine goods, it is mainly identified according to the victim’s statement, the description of the case handler and the price tag. If it is a fake and shoddy product, we should consider the price standard of the same brand and the same commodity in the market. Third, the basis of special commodity appraisal, such as foreign currency, is calculated according to the exchange rate on the benchmark date of price appraisal, precious metals are calculated according to the retail price of state-owned stores or large and medium-sized stores, and valuables (such as manuscripts, special materials, representative cultural relics, etc.) are calculated according to the medium retail price or auction price of cultural relics. Fourth, the rules and documents of price appraisal industry. Such as the standards published by the General Administration of Quality Supervision and Inspection. Fifth, according to the old and new degree of property involved. A reasonable appraisal should be made according to the depreciation of the property involved. At the same time, the price appraisal should adhere to three principles: first, adhere to the principle of neutrality; Second, adhere to the principle of procedural justice; Third, adhere to the principle of low is not high, that is, the principle of benefiting the defendant.
Combining the above criteria and principles, Tian Hongjie, a professor at Renmin University of China Law School, added that property crimes lead to the direct property loss of the obligee, which is the basis for the price appraisal of the items involved in property crimes. First, the value of the items involved in property crimes is dynamic, and the standards on which the price appraisal is based are also different from case to case and from thing to thing. Second, because the essence of property crimes lies in the infringement of property ownership established by civil and commercial laws rather than the market economic order, determining the price appraisal benchmark of the items involved in property crimes should be based on the infringement losses recognized by civil and commercial laws, especially tort law, but it cannot be simply equated.
Wen Changjun, deputy procurator-general of Dongcheng District Procuratorate in Beijing, believes that although there are differences in the types of appraisal items, the price appraisal should first be unified: the scope of appraisal should be unified, including only those whose value is difficult to determine or controversial. The price appraisal basis of similar goods is unified to avoid the result of different penalties for the same crime. Secondly, according to different situations, the evidence should be collected comprehensively around the price appraisal. When handling the case, we should consider distinguishing the following situations: whether the goods enter the sales link, if not, the amount should be determined by the purchase price; If you enter the sales link, you should use the price tag as the benchmark for identification; If there is a discount, the amount of crime should be calculated at the discounted price; If there is an actual transaction price, the actual transaction price shall prevail.
Acceptance of price appraisal opinions
The determination of the qualification of price appraisal institutions involves four issues: first, whether the appraisal opinions issued by non-statutory appraisal institutions and appraisers are admissible. Second, how to issue professional expert opinions in areas not covered by judicial expertise. Third, how to define administrative decisions and professional opinions issued by other administrative organs or departments. Fourth, whether the unexamined expert opinions can be directly accepted.
Sun Tiecheng, procurator of the Public Prosecution Office of the Supreme People’s Procuratorate, believes that, firstly, expert opinions are opinion evidence, and the essence of opinion evidence is to state the professional problems in the physical evidence and documentary evidence on file by people with special knowledge and experience through conclusive language, and the determination of legal facts has to be judged by judicial personnel, which is the major premise. Second, the opinion evidence must be examined, and cross-examination is an effective process to help the examination, so the system of expert appearance in court should be further strengthened. Third, under the existing system, expert opinions cannot meet all the needs, but there must be relief procedures and review in criminal proceedings, and administrative opinions cannot replace judgments. For example, there are provisions on the use of customs tax verification instructions in criminal proceedings, which should be reviewed by investigation organs and procuratorial organs as the basis for conviction and sentencing, and there are also relief procedures. Fourth, quantification is very objective, while qualitative judgment is subjective on the basis of quantification, but it should also have strict logic and argumentation, so it is subjective but by no means arbitrary. Fifth, the provisions of expert opinions are closed. Judging from the existing regulations, in criminal proceedings, the opinions issued by qualified appraisers in appraisal institutions entrusted by judicial organs can only be adopted, but in cases, there are often appraisers entrusted by defendants themselves or opinions issued by personnel of non-appraisal institutions, which conflict with the opinions issued by institutions entrusted by judicial organs. Although these opinions do not conform to the regulations and cannot be directly used as evidence, they are just as reference opinions as "legal" appraisal opinions, and we cannot simply ignore them.Instead, we should listen carefully, or at least regard it as a cross-examination opinion on "legitimate" expert opinions.
Under the existing institutional framework, the qualification of price appraisal institutions should be based on the existing effective laws. Tian Hongjie explained that in 1997, the State Planning Commission, the Supreme People’s Court, the Supreme People’s Procuratorate and the Ministry of Public Security issued the Administrative Measures for the Appraisal of Seizure, Recovery and Confiscation of Goods, and in 2008, the National Development and Reform Commission, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security and the Ministry of Finance issued the Supplementary Notice on the Management of Price Appraisal of Seizure, Recovery, Confiscation and Confiscation of Property. The price departments of the State Council and local people’s governments are the competent departments in charge of the appraisal of seized, recovered and confiscated goods, and the price certification centers set up by them are the appraisal institutions for seized, recovered and confiscated goods designated by courts, procuratorates and public security organs at all levels. No other institution or individual may appraise the seized, recovered and confiscated goods.
Specification for price appraisal procedures
In practice, due to the imperfect legal norms, there are some problems in the price appraisal of criminal proceedings, such as the imperfect procedures for the source of goods, the lax storage process, and the fact that the investigation organ does not inform the suspects and victims of the appraisal opinions in advance, which leads to the loss of their due relief rights. It is necessary to further improve the legal norms system of price appraisal of criminal proceedings in China and standardize the price appraisal procedures.
Fan Chongyi pointed out that there are five main problems in China’s current price appraisal procedures: First, a national unified professional price appraisal institution has not yet been established. In this case, the use of expert opinions should be more cautious; Second, the price appraisal procedure is not standardized. Including the scope of business acceptance, appraisal principles, appraisal standards, procedures for case-handling organs to submit inspection materials to price appraisal institutions, etc., all lack unified and effective norms; Third, the standards of property appraisal involved in criminal cases are not uniform; The fourth is to identify the irregularities in the custody, preservation, return and transfer of the property involved; Fifth, in some places, there are still phenomena of withholding, intercepting, misappropriating and selling the property involved, which seriously violates the rights of the parties concerned. In standardizing and perfecting the price appraisal procedure, we should adhere to five procedural standards: first, litigation; The second is openness and transparency; The third is timely; The fourth is participation; The fifth is relief.
In the face of numerous legal norms of price appraisal, there are still contradictions and conflicts among them. It is urgent to clean up the laws and regulations and revise them. Tian Hongjie believes that under the condition of market economy, the following issues should be clarified in the price appraisal standard: First, the appraisal organization should be clarified according to the industry; The second is to clarify the principle of price appraisal; The third is to clarify the basis of price appraisal; Fourth, improve the operation mechanism of price appraisal, including appraisal operation procedures, supervision procedures and relief ways; The fifth is to establish an accountability mechanism for false identification of appraisers. Of course, the key to the establishment of a scientific and reasonable price appraisal mechanism lies in the guarantee of the neutrality of appraisal institutions, and price appraisal must be non-profit. Therefore, it is very important to ensure the source of operating funds for price appraisal institutions. On this basis, two lines of revenue and expenditure must be implemented for appraisal fees to ensure the objectivity and fairness of appraisal conclusions. Wen Changjun added that improving the price appraisal procedure should adhere to the principles of science, standardization, fairness and operability. In addition, procuratorial organs should also attach great importance to the review of price appraisal opinions, not only to review the conclusions of appraisal opinions, but also to review materials. Practical departments should constantly explore how to improve the ability of evidence review.
(For details of this seminar, please refer to People’s Procuratorate, No.16, 2014)
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