张庆方律师：Discussing the Proper Way to Voice Support for Fellow Lawyers Through the Case of Tai'an's Gao Bingfang
近期被律师界高度关注的泰安高丙芳律师虚假诉讼案，我最早注意到，是2024年4月9日，我的朋友张新年律师在一个律师群里贴出《为农民工维权女律师被指控虚假诉讼罪，张新年律师为她作无罪辩护》的辩护词。其后，我又陆续看到另一位辩护人刘录律师题为《请善待为农民工维权的女律师》的辩护词，以及张新年围绕本案众多极其情绪化的发言。4月10号00:34,张新年律师在律师群里激动地说：高律师太冤了！气得我无心睡眠，晚上喝了八两酒，也不困了。当天上午，他又愤怒地指控泰安市岱岳区法院疑似施以诈术，违规变更强制措施，借以阻止当事人继续依法向最高人民法院反映冤情。
The recent case of lawyer Gao Bingfang accused of initiating a false lawsuit has attracted significant attention in the legal community. I first noticed it on April 9, 2024, when my friend, lawyer Zhang Xinnian, posted a defense statement titled "Defending a Female Lawyer Advocating for Migrant Workers' Rights Accused of False Litigation Crime, Lawyer Zhang Xinnian's Innocent Defense" in a lawyers' wechat group. Subsequently, I saw another defense statement by lawyer Liu Lu titled "Please Treat Female Lawyers Defending Migrant Workers' Rights Kindly", as well as many highly emotional comments made by Zhang Xinnian regarding this case. At 00:34 on April 10, Zhang Xinnian passionately stated in a lawyers' wechat group: "Lawyer Gao is too wronged! I am so upset that I couldn't sleep, and after drinking 400ml of alcohol, I wasn't sleepy anymore." That morning, he also angrily accused the Daiyue District Court of Tai'an City of possibly using deceit and improperly changing enforcement measures to prevent the client from legally reporting the injustice to the Supreme People's Court.
在张新年笔下，高丙芳是为农民工讨薪的正义律师，她代理74名农民工向总包商和包工头讨薪的案件，已经过泰安市、区两级法院审结，农民工完胜，这个结果，不是能更改的。否则，“如果高丙芳律师有罪，那审理农民工讨薪案的法官又该如何处理？”可能是考虑到通过正常的辩护获得无罪结果太难，4月13日上午，张新年在律师群里发言：“目前，受岱岳区个别掌权者的操纵，拜不法分子之所赐，泰山脚下，法律似乎失灵了!请泰山神、泰山奶奶显显灵吧，让滥权者颤抖，还高丙芳清白!泰山石敢当，风正且气清，信仰泰山。”
In Zhang Xinnian's writings, Gao Bingfang is portrayed as a righteous lawyer fighting for migrant workers' rights to unpaid wages. She represented 74 migrant workers in their claims against the main contractor and subcontractor, and the case was concluded by both the municipal and district courts of Tai'an, with a complete victory for the migrant workers—a result that cannot be changed. Otherwise, "if Lawyer Gao Bingfang is guilty, then what should be done with the judges who handled the migrant workers' wage dispute cases?" Perhaps considering that obtaining an acquittal through normal defense would be too difficult, on the morning of April 13, Zhang Xinnian stated in the lawyers' group: "Currently, due to the manipulation by some in power in Daiyue District and thanks to lawbreakers, it seems the law has failed at the foot of Mount Tai! I call upon the deity of Mount Tai and the Granny of Mount Tai to show their power, let those who abuse their power tremble, and restore Gao Bingfang's innocence! Mount Tai's Stone Dare-to-Act, where the wind is fair and the spirit clear, I believe in Mount Tai."
但是，4月23日中午，张新年又通过其微博乐观地发布：“经最高院责成，前天山东省高级人民法院的同志们牺牲周末休息时间，由院长霍敏带队，多名高院工作人员一大早亲赴岱岳区法院，就高丙芳律师案件存在的问题予以研究。岱岳区法院宋斌院长等班子成员、刑庭工作人员，加班陪同，共同梳理本案！鉴于本案背后牵扯到了岱岳法院、泰安中院和山东高院原一、二审及再审改判的法官，地方司法系统会不会为了自保，让高丙芳律师成为牺牲品，最终酿成冤案，还是能有泰山石敢当一样的法治敢当精神，还高律师以清白？法之尊严，在于法之必行！高丙芳律师涉嫌虚假诉讼罪一案将何去何从，我们拭目以待！“
However, on the afternoon of April 23, Zhang Xinnian optimistically posted on his Weibo: "At the behest of the Supreme Court, comrades from the Shandong Provincial High People's Court sacrificed their weekend rest. Led by President Huo Min, several senior court staff members went to Daiyue District Court early in the morning to investigate the issues in Lawyer Gao Bingfang's case. President Song Bin and other members of the Daiyue District Court, along with the criminal tribunal staff, worked overtime to jointly review the case! Given that this case involves judges from the Daiyue Court, Tai'an Intermediate Court, and the Shandong High Court who were responsible for the first trial, second trial, and retrial decisions, whether the local judicial system, in an attempt to protect itself, will make Lawyer Gao Bingfang a scapegoat, leading to a wrongful case, or if it will display a legal spirit as resolute as Mount Tai's Stone Dare-to-Act, and restore the lawyer's innocence. The dignity of the law lies in its absolute necessity! The direction of Lawyer Gao Bingfang's case, suspected of false litigation, remains to be seen. We are watching closely!"
真不知道他这些消息是从哪里来的！但是，他为高丙芳律师的大声疾呼，确实在律师圈引起了广泛的关注并收获了众多的支持。
I really don't know where he gets his information! However, his vocal advocacy for Lawyer Gao Bingfang has indeed garnered widespread attention and significant support within the legal community.
绝大部分同行相信本案就个彻头彻尾的冤案，很多人写文章支持，《山东岱岳区法院应当立即撤销对高丙芳律师作出的逮捕决定》、《依法律关系就应该断定无罪的高丙芳律师涉嫌虚假诉讼案》、《欠薪者逍遥法外，讨薪者锒铛入狱，这符合天理国法人情吗？符合司法为民的原则吗？》，仅看题目，就不难看出法律圈对本案一边倒的态度。
The vast majority of lawyers believe this case is a complete miscarriage of justice, and many have written articles in support, such as "The Daiyue District Court of Shandong Should Immediately Withdraw the Arrest Decision Against Lawyer Gao Bingfang," "Lawyer Gao Bingfang Accused of False Litigation Should Be Acquitted According to Legal Relationships," and "The Debtors Roam Free, While the Debt Collectors Are Jailed—Does This Conform to Natural Justice, State Law, and Human Sentiments? Does It Align with the Principle of Justice for the People?" Just from these titles, it is easy to see the legal community's overwhelming stance on this case.
但是，本人看了张新年的全部文章，以及刘录律师两万多字的辩护词，虽然非常同意刘律师“不知者不为罪，无行为无犯罪”，从高丙芳对包工头隐瞒已经被拉来作原告的农民工全部薪水的事实不知情的角度为其辩护的基调，但是，看了刘录辩护词中对控辩双方证据的分析，我并不能得出高丙芳是受到分包商米某和包工头陈某的刻意隐瞒欺骗的结论。
However, having read all of Zhang Xinnian's articles and Liu Lu's 20,000-word defense statement, although I strongly agree with Lawyer Liu's assertion that "ignorance does not constitute a crime, and without action, there is no crime," and appreciate the defense tone advocating for Gao Bingfang, who was unaware of the subcontractor's and foreman's deception regarding the wages of migrant workers brought in as plaintiffs, I cannot conclude from Liu Lu's analysis of the evidence from both sides that Gao Bingfang was deliberately deceived by subcontractor Mi and foreman Chen.
辩方举出2021年7月11日晚上20:06高丙芳通过微信向米某发了一段话，内容概要为：“我担心您们提供虚假的证据材料，再三告知您们虚假诉讼的法律后果。我将相关案例发给您们，您们再三保证说的都是真的。后来我要求您们组织农民工在申请执行过程中签字委托，但你们遮遮掩掩，说出不该农民工的工资，不好组织。”对此，米某没有任何回应，采取了回避态度。
The defense cited a message sent by Gao Bingfang to Mr. Mi on July 11, 2021, at 20:06 via WeChat, which roughly said: “I am concerned that you might provide false evidence, and I have repeatedly informed you of the legal consequences of false litigation. I sent you relevant cases, and you repeatedly assured me that everything you said was true. Later, I asked you to organize the migrant workers to sign a power of attorney during the enforcement process, but you were evasive and said it was difficult to organize and did not disclose the wages of some of the migrant workers.” Mr. Mi did not respond to this and took an evasive attitude.
还有当天晚上21:03高丙芳律师又向米某发了一段话，内容为：“米经理好!我想弄明白一个事，是不是所有农民工的工资都是您垫付的?如果是，我从法律层面做法律论证，向检察院说明事实，维护您的合法权益!收到上述信息后，米某当天没有回答，而是在2021年7月12日上午11:46分（实为9：28分），回复说：是，他们说不好弄。
Additionally, at 21:03 that same night, Lawyer Gao Bingfang sent another message to Mr. Mi, which read: “Hello Manager Mi! I want to understand something: did you advance the wages for all the migrant workers? If so, I will prepare a legal argument from a legal standpoint, explain the facts to the prosecutor's office, and protect your legal rights!” Mr. Mi did not respond to this message on the day it was sent, but replied on July 12, 2021, at 11:46 AM (actually 9:28 AM) saying: “Yes, they said it was difficult to arrange.”
辩方认为：上述微信内容证明：高丙芳在二审结束之前对于农民工工资已被垫付偿清不知情，否则，不敢这样质问。就此，办案人员问同案米某：从高丙芳律师发给你的这两段话看，字面意思显示高丙芳律师在这之前是不清楚你已经付清工人工资，是这样吧？米回答：“事实不是这样的，在我和陈某第一次去找高丙芳律师咨询关于我向泰安市某店建筑安装工程有限公司索要工程款一事时，我当时就明确告知了高丙芳律师我自己将工人工资都垫付付清了，高丙芳律师跟我们说的是既然是要用工人的名义来索要工资的方式起诉，就不能说是工人工资都付清了，并且跟我和陈某说既然这个方案定了，以后让我和陈某不管和谁、不管是当面还是电话中都得说是还欠工人工资，我和陈某基本上也是这么做的。”
The defense argues that the above WeChat content demonstrates that Gao Bingfang was unaware that the wages of the migrant workers had been fully advanced and settled before the second trial; otherwise, she would not have dared to question in such a manner. Upon this, investigators asked Mr. Mi, involved in the same case: From these two messages that Lawyer Gao Bingfang sent you, it appears that she did not know that you had already paid the workers' wages before this, is that right? Mr. Mi answered, “That's not the case. The first time I went to consult Lawyer Gao Bingfang about claiming construction fees from a certain Tai'an City construction installation company, I explicitly told her that I had already advanced and settled all the workers' wages. Lawyer Gao told us that since we were suing in the name of the workers for their wages, we couldn't say that their wages had been fully paid, and she told me and Mr. Chen that since this plan was set, from then on, no matter with whom or whether in person or over the phone, we had to say that the workers' wages were still owed, and Mr. Chen and I largely did just that.”
办案人员又进一步质疑性追问：你收到上述信息后，当天没有回答，而是在2021年7月12日上午11:46分（实为9：28分），你回复说。是，他们说不好弄。你为什么这么回答? 米某答：我当时没有多想，也不清楚高丙芳律师给我发这两段话的真实意思，并且在这之前，岱岳区人民检察院的工作人员已经介入调查了，我也知道是违法的了，我回答是，只是随口回答，我说的他们说不好弄，就是说我们这个事情涉嫌违法了不好弄了。
Investigators further questioned with suspicion: After receiving the above messages, you did not respond on the day, but at 11:46 AM on July 12, 2021 (actually 9:28 AM), you replied, saying, “Yes, they said it was difficult to arrange.” Why did you answer like that? Mr. Mi responded: At the time, I didn’t think much about it, nor was I clear about the real meaning of the two messages Lawyer Gao Bingfang sent me. Also, by that time, personnel from the People's Procuratorate of Daiyue District had already intervened in the investigation, and I was aware that it was illegal. My response was just casual, and when I said “they said it was difficult to arrange,” I meant that it was becoming difficult to handle because our actions were suspected of being illegal.
如果高丙方的微信确实是在检察院已经就可能存在的虚假诉讼开展调查之后，辩护上述证据的证明力，在此，我就啥也不想说了。因此，虽然张新年是我的朋友，虽然我和其他同行一样，对高丙芳律师的遭遇，同样有物伤其类之悲，但是，面对新年在律师群里声调极高的喊冤，我还是建议他：这个案子都公开开庭了，真冤，为什么不公布证据？高律师本人在被法院批捕前，也一直喊冤，她有足够的反应时间，为什么不公布证据？
If Lawyer Gao’s WeChat messages were indeed sent after the Procuratorate had already begun investigating potential false litigation, then I don’t want to say much about the evidential strength of the aforementioned defense. Therefore, even though Zhang Xinnian is my friend and I, like my other colleagues, feel a profound sense of empathy for Lawyer Gao Bingfang's plight, facing Zhang's vociferous cries of injustice in the lawyers’ wechat group, I still advised him: The case has already been opened to public hearing. If it truly is a miscarriage of justice, why not disclose the evidence? Lawyer Gao herself continuously proclaimed her innocence before her arrest; she had ample time to respond, so why didn’t she disclose the evidence?
我之所以催着张新年要证据，因为：刑事案件中的证明，要坚持整体判断，实质判断。不对控辩双方的全部证据做综合分析，只是听信任何一方一面之词，冤案就是这么产生的，错案就是这么产生的。比如，一个官员在法庭上喊冤：房产证上明明是他儿子（行贿人）的名字，怎么能说我收受一套价值三千万的别墅？按张新年的逻辑，这辩护理由，杠杠的，肯定是无罪啊。但是，控方当庭举证：你说这房子你没收，但是，这十几年，房租是不是打到了你老婆卡上？这个案子，受贿能否成立？
The reason I pressed Zhang Xinnian for evidence is that, in criminal cases, one must adhere to holistic and substantive judgments. Simply taking one side's word without a comprehensive analysis of all evidence from both sides is how wrongful convictions are born. For instance, an official claims in court that a property deed is in his son’s (the briber's) name—how could he be accused of accepting a villa worth thirty million? According to Zhang Xinnian’s logic, this defense would absolutely exonerate him. However, the prosecution could demonstrate in court that while he claims not to own the house, the rent for these many years has been deposited into his wife's bank account. Can the charge of bribery be established in this case?
对控辩双方的证据，该如何判断，得出什么结论？我相信，任何脑子没进水的人，都自有正确判断。所以，刑事案件，看不到全部案卷就跟着一边倒的，或者有超人的判断力，或者是一犬吠形，百犬吠声，如此而已。面对我“公布证据“的建议，新年兄很不高兴，他又倒打一耙，说我代理我同学王林清案，同样也指责另一名辩护人老魏不公布证据。
How should one judge the evidence from both the prosecution and the defense, and what conclusions should be reached? I believe any sensible person can make the right judgment. Therefore, in criminal cases, without seeing the entire case file, one should not one-sidedly follow along or be swayed by the crowd without extraordinary discernment. Faced with my suggestion to "disclose the evidence," Brother Xinnian was quite displeased. He turned the tables, pointing out that when I represented my classmate Wang Linqing, I also criticized another defense attorney, Old Wei, for not disclosing evidence.
从高丙芳长期喊冤不公布完整证据，到张新年帮高丙芳高调喊冤拒绝公布完整证据，让我对他们的喊冤姿式产生了严重的怀疑。
From Gao Bingfang's long-term cries of injustice without revealing full evidence, to Zhang Xinnian's high-profile echoing of these cries while also refusing to disclose complete evidence, I have developed serious doubts about their method of protesting.
首先，你以为你不公布控方证据，就能取得一边倒的效果，就能借着被鼓动起的吃瓜群众的喝彩声，让有司收手？恰恰相反，这只能让他们内部更污名化刑辩群体，在有决定权的人心中强化了律师都是为了胜诉不择手段不讲事实的讼棍的印象，从而反而可能加重处罚。
Firstly, do you think by not disclosing the prosecution's evidence, you can achieve a one-sided effect, fueled by the cheers of the stirred-up crowd, and thus cause the authorities to back down? On the contrary, this only further stigmatizes the criminal defense community, reinforcing the impression among decision-makers that lawyers are litigators who will do anything to win without regard to facts, which could actually result in harsher penalties.
其次，从对律师的执业要求看，片面地强调指控律师虚假诉讼，应该由检察院举证，事实上也是在矮化律师的地位，弱化律师的执业约束。律师不是普通公民，而是法律执业者，是法律执业者，就必须有基本的职业操守。
Secondly, from the standpoint of legal practice requirements, the one-sided emphasis on accusing lawyers of false litigation should be substantiated by the prosecutor's office. This, in fact, diminishes the status of lawyers and weakens the constraints on their practice. Lawyers are not ordinary citizens; they are legal practitioners and must adhere to basic professional ethics.
作为一个诉讼律师，代理74名农民工以诉讼方式讨薪，对于是否真实欠薪，作为律师不应该认真审查吗？也许，高丙芳起诉前确实被米某和陈某蒙蔽，但是，本案中，有几人的对话录音证实，她处理这起民事案件过程中，很多方面是明显违规的，明知有的农民工身份都不适格，她当着米某的面说这不要紧。
As a litigation lawyer representing 74 migrant workers in a wage claim, shouldn't a lawyer diligently verify whether the wages were truly owed? Perhaps Gao Bingfang was indeed misled by Mi and Chen before filing the suit, but recordings of conversations in this case confirm that her handling of this civil case was clearly inappropriate in many respects, knowingly involving ineligible migrant workers, and dismissing this concern in front of Mi.
还有录音可以证实，民事案件二审开庭后，她就已经知道米某已经支付薪水的事实，但是，并未见她以积极的措施弥补之前错误起诉的后果。对于高律师目前遭遇的刑事诉讼，我本人也不主张对她要定罪。毕竟，执业违规，不等于犯罪，要说违规，本案中，总包商没有严格按相关规定监督农民工工资的发放，是违规，本案控方的检察院对总包商的违规视而不见，对辩方合理的取证申请置之不理，也是违规的。
Recordings also confirm that after the second hearing of the civil case, she knew that Mi had already paid the wages, yet she took no active measures to rectify the consequences of the erroneous lawsuit. Regarding the current criminal prosecution against Lawyer Gao, I do not advocate for her conviction. After all, professional misconduct does not equate to a crime. In terms of misconduct, the main contractor in this case failed to strictly supervise the payment of wages to migrant workers, which is a violation, and the prosecutor's office overseeing this case ignored these violations and disregarded the defense's legitimate requests for evidence collection, which is also inappropriate.
但是，不能因为小的违反规则，就影响整个案件罪与非罪的判断。我还是倾向于：本案中，虽然有分包商米某和包工头陈某一口咬定都是高律师的主意，但是，两人都是利害关系人，一看风险来了往律师身上推，这太正常不过了。检方以缓刑换取他们指控高丙芳，如此得来的证据，其证明力不强。综合目前能看到的全部证据，我认为，对高律师以虚假诉讼罪定罪，尚不能排除合理怀疑，我本人反对本案中对律师定罪。
However, minor violations should not influence the overall judgment of guilt or innocence in the case. I tend to believe that although subcontractor Mi and foreman Chen consistently claim that everything was Lawyer Gao's idea, both are stakeholders and it is quite normal for them to shift blame to the lawyer when risks emerge. The evidence obtained by the prosecution in exchange for a plea deal with them is not strong. Considering all the evidence currently available, I believe that convicting Lawyer Gao of false litigation cannot yet eliminate reasonable doubt, and I personally oppose convicting the lawyer in this case.
但是，如果律师界因此就自我降低执业要求，把明显违规执业的高律师塑造成被权力迫害的英雄，为农民工代言的良心律师，这不是律师界之福，也不会因此提升律师行业的公信力和执业水平。总之，张新年式喊冤，可以休矣！
However, if the legal community lowers its practice standards as a result and portrays Lawyer Gao, who clearly violated professional rules, as a hero persecuted by power and a conscientious lawyer speaking for migrant workers, this is not a blessing for the legal profession nor will it enhance the credibility and professional standards of the industry. In summary, the kind of protestations made by Zhang Xinnian should now cease!