How to write a lawyer's defense and statement?

1 lawyer's defense according to the following example

Dear presiding judge and collegiate bench:

xxxxxx Law Firm Wuhan Branch accepted the special authorization of the applicant Wang in this case, and I (lawyer Li Jun) acted as its litigation agent to participate in the litigation in this court. Before attending the trial in this court, I read the case files of the first and second trials of this case in detail in a responsible manner. As well as the case files and judgments of several cases related to this case, I noticed that the participants in the proceedings, including this trial, have just finished the retrial of a related case, and the presiding judge of this case is also the presiding judge of this case. In this case, our client Wang was sentenced to bear joint liability for debt repayment. Frankly speaking, the client has reason to worry about whether there may be preconceived tendencies in this collegial panel. However, after listening to the lawyer's introduction of the relevant legal provisions on the application for the disqualification of judges, our client showed admirable rationality. He decided not to worry about these trivial matters that have no substantive connection with the case, but to objectively state to the court, so as to obtain the court's support for justice with facts and evidence.

in order to assist the court to fully perform its trial function, and at the same time, to fully perform the lawyer's principal-agent duties, this lawyer will elaborate from three aspects: facts, evidence and legal provisions to explain to the court that the applicant should not bear the debt repayment responsibility in this case.

1. About the facts of this case.

the fact of this case is that the plaintiff (borrower) borrowed money from the defendant (lender) at a high interest rate, and both parties knew that the interest rate that exceeded the bank's loan interest rate for the same period was not protected by law. In order to circumvent the law, the lender (the legal representative of Jinyu Company, Yang, was recognized as the borrower by an effective judgment) took the way of recovering the high interest first, and then asked the borrower to issue an IOU (principal) after recovering the interest. Let's not discuss the legality of the high borrowing behavior. For the borrower, there are two payable debts, namely principal and interest, but the debtor in this case tried to default on the account on the basis of knowing the rules of the game. His reason was that the principal he had paid had exceeded interest, and the borrower filed a lawsuit on the grounds that the evidence he held showed that the borrower had not received the repayment or that there was no evidence that the loan had been repaid. The Court of First Instance supported the borrower's claim. The court (Wuhan Dongxihu District People's Court) ruled that the existing payment evidence was completed by the applicant in this case, but the applicant's payment behavior was not enough to prove that the payment was made to the borrower. The Court of First Instance further explained the law and thought that the legal relationship between the payer and the payee should be dealt with separately, so the plaintiff Zhuo Wei Company asked the applicant to bear the legal responsibility of returning the unjust enrichment benefits on the grounds of unjust enrichment. So there is this case, which has gone through the first and second trials. Now we are discussing the issue of retrial, that is to say, whether there is an error in the original judgment of this case. Applicant Wang's position in this case is the introducer. One of the two parties in this transaction tried to cover up the illegal purpose (usury) in a legal form, and the other party tried to violate the promise of commercial transactions and tried to default. These two parties ignored business ethics and integrity for the benefit of money, and used the loopholes in the form of evidence to blame the legal responsibility on the introducer. This is immoral. If the court supports the plaintiff in this case, it will be tantamount to supporting the parties to cover up the illegal purpose in a legal form again.

second, the evidence about this case.

(1) The new evidence is sufficient to show that the applicant is not the debtor of unjust enrichment, because the plaintiff admitted that he did not actually receive the money from beginning to end, but only signed the financial procedures.

These three pieces of evidence are written representations of the plaintiff's agent in the related litigation. What the plaintiff did to the court in this case reflects that these materials were produced under the unknown circumstances of the applicant, and it shows beyond dispute that the plaintiff never denied that the applicant never received the disputed money. Since the plaintiff filed a lawsuit, he has kept this fact to himself, letting the court ask the applicant to carry out "who advocates who gives evidence" according to the laws of China. As a result, the unlucky applicant took pains to collect it. According to the rules of evidence, the identification of facts that are unfavorable to one party in litigation through statements of the parties and proxy words can be used as evidence. In view of this, the lawyer believes that the three pieces of evidence discovered by consulting the transcripts of related litigation files after the trial should be regarded as "new evidence", and on this basis, it should be judged that the applicant should not bear the legal responsibility for unjust enrichment in this case.

(2) The original evidence was wrongly identified by the court of first instance, and the "fact finding" based on it was naturally wrong.

1. The court of first instance held that the recorded evidence could not be identified and the parties refused to accept it, so this conclusion was wrong. First of all, the party who should identify the recorded evidence at the trial in the original trial did not appear in court, but the agent responded. Even if the agent has special authorization, there is a certain difference between the judgment of his client's voice and the recognition of the facts. Only the party can clearly identify his voice. At the same time, in addition to the above, the facts that need further confirmation in this case, What's more important is whether the recorded content itself is complete and can reflect the facts. However, the court of first instance made a conclusion that such an important fact was not accepted by the agent's uncertainty, which is against the law. For the facts that the parties failed to find out in court, the court can subpoena them after two legal summonses, which is clearly stipulated in the Civil Procedure Law. We believe that it is the right and obligation of the court to correctly apply judicial procedures to find out the facts and make a fair judgment according to the law. On the other hand, the court of first instance held that it was a misunderstanding of the law that the recorded evidence could not be accepted as a single evidence without the recognition of the parties, and only "audio-visual materials with doubts" could not be used as evidence for ascertaining facts alone.

At the same time, we want to draw the court's attention to the fact that this recorded evidence clearly proves that all the disputed money was collected by Wu Mou, the defendant in the original trial. As for the argument that "if Wu Mou collected 6, yuan, Yang Youwei collected more than 17, yuan, wouldn't it be more than 7, yuan", if we notice that they are in a mother-child relationship and the plaintiff even gave up the claim against Yang, it is enough to show that they themselves know that this view is just a logical debate.

2. At the same time, our new bank deposit slip provided to the court shows that the total cash directly deposited into Yang's account is at least 27, yuan, not 178, yuan, which is enough to show that the judgment of the court of first instance should be revised.

third, the application of the law in this case.

(1) The wrong understanding of the law by the court of first instance led to a wrong judgment.

The cause of this case is a dispute over unjust enrichment. According to the law, unjust enrichment refers to "those who obtain improper benefits without legal basis and cause losses to others, should return the obtained improper benefits to the person who has suffered losses." That is, there are only two subjects in the legal relationship of unjust enrichment, one is the injured creditor, and the other is the debtor who caused the damage. Please note that the damage mentioned here refers to "obtaining improper benefits and causing damage to others", but does not include "causing others to obtain improper benefits and causing damage to others". If it is to be included, then the cause of action of this case should be an infringement dispute (infringement of property rights), and the agent wants to draw the court's attention at the same time. In the case of debt of unjust enrichment, there is no legal provision requiring the third party to bear joint and several liability in our country's law, and joint and several liability is only in the tort debt. The "special law" of debt of unjust enrichment as a tort debt does not have this provision, and the court should not go beyond the legal obligation to create.

Among the debts of unjust enrichment in this case, the creditor is relatively easy to define, and how to define the debtor is the core of the trial. According to the law, the debtor can only be correctly determined if the person who "obtained improper benefits and caused damage to others" is identified. On the one hand, the plaintiff admits that the applicant (obtained) the amount of 6, yuan without hands, on the other hand, the recorded evidence shows that Wu Mou admitted to receiving the payment. So, in any case, the debtor in this case.

the plaintiff has a very simple logic: the court ruled that the money was not returned to the person who wanted it. Now there is evidence that you (the applicant) received the money, and the court found that you can't prove that you gave it to the right person, so you constituted unjust enrichment. This logic sounds very reasonable, but for unjust enrichment, the person who doesn't deserve this money is the defendant of unjust enrichment and the real debtor. The agent has reason to believe that the court of first instance confused the concepts of unjust enrichment and tort liability.

(2) The applicant should not bear the legal responsibility for unjust enrichment in this case, and the plaintiff's claim should be rejected in this case.

In this case, the plaintiff did take the law as the criterion, but he didn't take the facts as the basis. He knew very well that the applicant didn't actually handle the money, but he allowed the court to solemnly ask the defendant to give evidence. At the same time, he kept saying in this court that there was no mistake in the court's judgment. On behalf of the client, this lawyer strongly condemned this behavior without business ethics and human character. A company and its leaders have fallen here, knowing the facts but letting it go.

We have noticed that the plaintiff finally determined his claim as requiring the applicant to bear the liability for compensation, and others to bear joint and several liabilities. Our agent believes that the original evidence and new evidence have shown that the applicant did not "obtain improper benefits", and Zhuoda Hotel has admitted that the applicant Wang did not collect the money for the lawsuit. In view of this, Wang should not bear the obligation of returning unjust enrichment, and Wu Mou should bear the responsibility of returning 6, yuan in this case. As further evidence shows, If Jinyu Company actually obtains this payment, Jinyu Company shall bear the responsibility of returning it, and Wu Mou shall bear joint and several liability. At the same time, Yang Moumou and Yang Mou shall bear joint and several liability within the scope of actually receiving money by using bank cards, but the burden of proof shall not be borne by Wang, but by Zhuoda Hotel. In view of the fact that the cause of this case is an unjust enrichment dispute, there is no legal basis for asking Wang to bear joint and several liability, and he should not bear any legal responsibility for unjust enrichment in this case.

at the same time, according to the principle of "not suing and ignoring", since the plaintiff only requires others to bear joint and several liability instead of returning, there is no legal basis for the claim of "asking the person who should bear the responsibility of returning to bear the joint and several liability of a person who should not bear the legal responsibility", and a judgment should be made to reject all the claims of the plaintiff in this case. This result sounds unreasonable, but "the train can only reach the end safely on the track", and the consequences of this lawsuit should be tasted by the plaintiff himself. We regret this, and the plaintiff may also have to reflect on his attitude of not abiding by business integrity.

this statement is presented to the people's court of p>xxxxxxx

2. How to write the statement

Presiding Judge:

I accept the entrustment of Xu Xxx, a close relative of the victim Zhao Xxx in this case, and act as the litigation agent of the first instance in the case of the victim Zhao Xxx v. Liu Xxx for abuse. After accepting the entrustment, I conducted extensive and necessary investigation and evidence collection activities, carefully read the case file, and made sufficient pre-trial preparations. According to the court investigation just conducted, the case of Zhao Xx v. Liu Xx's abuse is clear, the evidence is sufficient and true. In order to further support the prosecution and safeguard the legitimate rights and interests of Zhao Xx, the private prosecutor in this case, I hereby express the following opinions on behalf of the court:

1. The facts of the crime alleged in this case are clear and the evidence is indeed sufficient

(The facts should be described in detail, which is omitted. )

All the above facts are supported by evidence. The evidence has just been submitted to the court.

2. Liu Xx's behavior constitutes the crime of maltreatment stipulated in the Criminal Law of the People's Republic of China (hereinafter referred to as the Criminal Law), and criminal responsibility should be investigated.

the crime of maltreatment refers to the vicious acts of physically and mentally destroying and persecuting family members who live with * * *, often by beating and cursing, starving, restricting personal freedom and humiliating personality. Article 26 of China's Criminal Law stipulates: "Whoever maltreats a family member, if the circumstances are bad, shall be sentenced to fixed-term imprisonment of not more than two years, criminal detention or public surveillance."

In this case, Liu××× abused Zhao××× for a long time (as long as ×× years), which caused serious consequences-caused great damage to Zhao×××' s physical and mental health, which was a bad plot and should be investigated for criminal responsibility. Moreover, it is unreasonable for Liu Xx to openly despise the country's family planning policy, so he prefers sons to daughters and tortures his wife who does not want to succumb to his wrong will.

To sum up, the defendant Liu Xx's behavior has constituted the crime of maltreatment, so please ask the people's court to punish him according to law.

p>×× lawyer

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2. the text. First, describe the facts of the defendant's crime and use sufficient and reliable evidence to prove it; Secondly, citing the relevant legal provisions and using the theory of crime constitution and relevant knowledge to demonstrate the legitimacy and necessity of the defendant's criminal responsibility; Thirdly, analyze the motives and reasons of the defendant's crime from the aspects of behavioral knowledge background and psychology, and explain to the judges and jurors the serious consequences and social harm caused by the defendant's criminal behavior to the victims and society.

3. Conclusions and claims.