尊敬的审判长、审判员：

浙江利群律师事务所接受钱某亲属的委托，指定本人担任钱某的辩护人，参与本案的刑事诉讼活动。接受委托以后，本辩护人会见了被告人钱某，认真研究了起诉书，查阅了相关的证据材料，刚才又参加了法庭调查，听取了公诉人发表的公诉意见。为维护被告人的合法权益，协助合议庭准确认定事实，正确适用法律，现发表如下辩护意见，希望法庭能够予以采纳。

一、关于事实方面的意见

辩护人对起诉书指控被告人钱某的行为构成掩饰隐瞒犯罪所得罪并应当承担刑事责任不持异议，但是辩护人不同意公诉人认为被告人钱某情节严重的量刑建议。辩护人认为综合本案的证据事实，没有任何充分的证据可以证明被告人钱某的违法所得已达到法定的情节严重的标准，具体理由阐述如下：

1、关于“违法所得”的定义以及认定数额的方式方法问题

辩护人认为本案中的“违法所得数额”，应指被告人掩饰隐瞒犯罪所得的获利数额。既然是获利，那么从数额上看就应该是卖给下家的收入金额与支付给上家的付出金额之差。起诉书指控被告人钱某向上家收购用去110多万，加价出售给下家130多万，获利18万元许。辩护人认为公诉人的指控，数额表达含糊，且缺乏相应的证据支持。公诉人认定获利18万，凭借的仅仅是钱某的供述，但辩护人认为钱某的供述并非客观事实的体现：一方面，钱某供述的时候，他并不清楚自己的哪些行为违反了刑法规定，他错误的将正常交易的获利与非法交易的获利额混淆在一起，作了相应的供述；另一方面，在钱某的交易活动中，他没有过任何记账的行为，那么试想一下，在案发的这段时间内发生了这么多笔交易的情况下，又有谁能在未经翻帐核对的情况下准确记忆自己的获利数额？因此辩护人认为要查清钱某的“违法所得数额”，只能基于客观证据材料，一笔笔的核对交易情况，才能得出符合实际的公平、公正的结论。

2、公诉机关指控被告人钱某出售给下家130多万元，事实不清、证据不足

（1）钱某与二十多名下家的支付宝交易记录上反映，钱某在与其中八名下家的交易中存在或多或少的支出款项，金额共计43124元。关于这些款项的性质，刚才在庭审中已经调查过，钱某交代这些属于未完成交易的退款，既然这些交易存在退款，那么辩护人认为这批款项理应从收入金额中予以抵销、扣除。

（2）公诉机关将钱某与张某的交易也算在本案的犯罪事实中，这是极其错误的！从事实层面看，钱某与张某之间的交易是属于正常的倒卖游戏账号、器具的行为。钱某原本是一个“游戏商人”，什么叫“游戏商人”？就是现在的一些游戏玩家，以游戏为平台，通过游戏倒买倒卖账号、装备等游戏资源从而获取利益的人，即便是在钱某参与了非法活动的这段时间内，他也没有抛开正当合法的倒卖业务，在平常玩游戏的过程中，当看到有人退出不玩了，出售自己的账号等物品时，他就会去收购继而转手卖给他人获利，而张某就是他正当交易的一个大客户。从证据层面看，钱某在8月16日的讯问笔录（也就是钱某的第三份笔录）中曾明确表示“张某是和我做正当生意的，是我通过正当途径低价收取游戏账号后再卖给他的”，而对于之后几次笔录中将张某也算在几个下家之中的情况，钱某已经作了辩解，这是因为在后来的笔录中涉及人员较多且办案人员急于送钱某回看守所就催促其签字画押，钱某并未仔细核对过相应的笔录。辩护人认为钱某的解释合情合理，符合实际。而且现在没有任何的证据可以证明钱某卖与张某的东西是属于非法盗取而来的游戏财产，因此其根本不具备构成“掩饰、隐瞒犯罪所得”的前提条件，即无法证明交易的这些物品是属于刑法第三百一十二条第一款所说的“犯罪所得及其产生的收益”。

总而言之，辩护人认为公诉机关将钱某销售期间发生的4万多元退款金额及与张某交易的销售额都计算在130多万内，缺乏确凿的证据，且无法形成完整的证据链条，根据“疑点利益归于被告”的原则，对于这些事实辩护人请求法庭不予认定，剔除相关金额，维护被告人的合法权益。

二、关于量刑情节的一些建议

首先，本案被告人钱某一贯表现良好，没有违法犯罪记录，系初犯、偶犯，可以酌情对其从轻处罚；其次，钱某归案后自愿认罪，对于自己行为的违法犯罪性质有了明确深刻的理解和认识，对行为的社会危害性也有了全面的反思和检讨，积极退赃，属于较易改造的对象；再次钱某并未直接参与到破坏计算机信息系统的具体行为中去，其造成的危害后果相对较小；最后，被告人钱某刚刚二十出头，正处在人生成长的关键时期，他原本有自己正当的经济活动，但却因为法律知识和法制意识淡薄，只看到眼前的短期利益，而忽视了利益表象下的犯罪陷阱，失足陷入了犯罪的泥潭，教训深刻。

综上所述，被告人钱某的行为虽然构成了犯罪，但其主观犯罪恶性较小、社会危害性较低；又属初犯、偶犯；且认罪态度好，积极退赃，悔罪真诚，辩护人恳请合议庭慎重核对相关数额、综合考量上述辩护意见，依照我国宽严相济的基本刑事政策，惩罚与教育相结合的原则，对被告人钱某从轻处罚。

以上意见，供合议庭评议时参考采纳。

浙江利群律师事务所

冯  懿  律师

Dear Chief Justice and Judge

Zhejiang Liqun Law Firm has accepted the commission of a relative of Qian and designated myself as Qian's defense representative to participate in the criminal litigation activities of this case. After accepting the commission, this defender met with the defendant Qian, carefully studied the indictment, consulted relevant evidence materials, and just now participated in the court investigation and listened to the prosecution opinions expressed by the prosecutor. In order to safeguard the legitimate rights and interests of the defendant, assist the Judicial panel to accurately determine the facts and correctly apply the law, we hereby issue the following defense opinions, hoping that the court can adopt them.

1. Opinions on facts

The defender has no objection to the accusation in the indictment that the defendant Qian's behavior constitutes concealment of the crime and should bear criminal responsibility. However, the defender does not agree with the prosecutor's sentencing suggestion that the defendant Qian's circumstances are serious. The defense believes that based on the evidence facts of this case, there is no sufficient evidence to prove that the defendant Qian's illegal gains have reached the legal standard of serious circumstances. The specific reasons are as follows:

(1) On the Definition of "Illegal Income" and the Methods of Determining the Amount

The defense believes that the "amount of illegal gains" in this case should refer to the amount of profits that the defendant conceals and conceals from the criminal gains. Since it is a profit, in terms of amount, it should be the difference between the amount of income sold to the next owner and the amount paid to the previous owner. The indictment accuses the defendant Qian of using over 1.1 million yuan to acquire from the previous company and selling it to the next company at an additional price of over 1.3 million yuan, resulting in a profit of around 180000 yuan. The defense believes that the prosecutor's allegations are vague in terms of amount and lack corresponding evidence to support them. The prosecutor found that the profit of 180000 yuan was only based on Qian's confession, but the defense believes that Qian's confession is not a reflection of objective facts. On the one hand, when Qian made his confession, he was not clear which of his actions violated the criminal law. He mistakenly confused the profit from normal transactions with the profit from illegal transactions and made corresponding statements; On the other hand, in Qian's trading activities, he did not engage in any bookkeeping behavior. Imagine, in the event of so many transactions occurring during the time of the crime, who could accurately remember his profit amount without checking the accounts? Therefore, the defender believes that in order to investigate Qian's "illegal income amount", it is necessary to verify the transaction situation based on objective evidence materials and make a fair and just conclusion that is in line with reality.

(2)The prosecution accuses the defendant Qian of selling more than 1.3 million yuan to the next family, but the facts are unclear and the evidence is insufficient

①According to the Alipay transaction records between Qian and more than 20 of his subordinates, Qian had more or less expenses in his transactions with eight of them, totaling 43124 yuan. Regarding the nature of these payments, it has just been investigated during the trial. Qian explained that these are refunds for unfinished transactions. Since there are refunds for these transactions, the defense believes that these payments should be offset and deducted from the income amount.

②The public prosecution organ counted the transaction between Qian and Zhang in the Corpus delicti of this case, which is extremely wrong! From a factual perspective, the transaction between Qian and Zhang is a normal act of reselling game accounts and equipment. Qian was originally a "game merchant", what is "game merchant"? Some game players nowadays use the game as a platform to obtain profits by buying and selling game resources such as accounts and equipment through the game. Even during the period when Qian participated in illegal activities, he did not abandon legitimate and legitimate reselling business. In the ordinary process of playing the game, when he saw someone quit and sold their own account and other items, he would buy and then resell them to others for profit, And Zhang is one of his legitimate trading clients. From an evidential perspective, Qian explicitly stated in his interrogation transcript on August 16th (also known as Qian's third transcript) that "Zhang was doing legitimate business with me, and I collected a game account through legitimate channels at a low price before selling it to him." Qian has already defended the situation where Zhang was included in several subsequent transcripts, This is because there were many people involved in the later transcripts and the case handlers were eager to send money back to the Detention center and urged him to sign and make a pledge. Qian did not carefully check the corresponding transcripts. The defender believes that Qian's explanation is reasonable and in line with reality. Moreover, there is currently no evidence to prove that the items sold by Qian and Zhang belong to illegally stolen game property, so they do not have the prerequisite to constitute "concealing or concealing criminal gains", that is, they cannot prove that the traded items belong to the "criminal gains and their generated profits" mentioned in Article 312 (1) of the Criminal Law.

In summary, the defense believes that the public prosecution calculated the refund amount of over 40000 yuan and the sales amount of the transaction with Zhang during the sales period of Qian within 1.3 million yuan, lacking conclusive evidence and unable to form a complete chain of evidence. Based on the principle of "the interests of the suspect belong to the defendant", the defense requests the court not to recognize these facts, exclude the relevant amount, and protect the legitimate rights and interests of the defendant.

2. Some suggestions on sentencing circumstances

Firstly, the defendant in this case, Qian, has consistently performed well and has no criminal record. He is a first-time or occasional offender, and may be given a lighter punishment as appropriate; Secondly, after being brought to justice, Qian voluntarily confessed and gained a clear and profound understanding of the illegal and criminal nature of his behavior. He also comprehensively reflected and reviewed the social harm of his behavior and actively returned the stolen goods, making him a relatively easy target for reform; Once again, Qian did not directly participate in the specific behavior of damaging the computer information system, and the harmful consequences caused by it were relatively small; Finally, the defendant Qian was just in his early twenties and was in a critical period of life growth. He had his own legitimate economic activities, but due to his weak legal knowledge and legal awareness, he only saw short-term benefits and ignored the criminal traps under the guise of interests. He fell into the quagmire of crime due to his mistakes, and his lessons were profound.

In summary, although the defendant Qian's behavior constitutes a crime, his subjective crime is less malignant and has lower social harm; Also classified as a first or occasional offender; Moreover, the defender has a good attitude of pleading guilty, actively returning stolen goods, and sincerely repenting. The defender requests the Judicial panel to carefully check the relevant amount, comprehensively consider the above defense opinions, and in accordance with the basic criminal policy of tempering justice with mercy, and the principle of combining punishment with education, give the defendant Qian a lighter punishment.

The above opinions are for reference and adoption by the Judicial panel.

Zhejiang Liqun Law Firm

Lawyer Feng Yi