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Xiangxiang Municipal People's Court of Hunan Province
Criminal judgment
(2021) Xiang 0381 Xingchu No. 343
The people's procuratorate of Xiangxiang City, Hunan Province, the public prosecution organ.
Defendant Fu X, male, born on November 26, 1954, hezhe ethnicity, from Fuyuan City, Heilongjiang Province, college culture, unemployed, household registration in Fuyuan City, Heilongjiang Province. He was criminally detained on May 22, 2021 on suspicion of fraud, and arrested in accordance with the law on June 28, 2021. He is currently detained at the Xiangxiang City Detention Center.
On October 9, 2021, the Xiangxiang Municipal People's Procuratorate of Hunan Province filed a public indictment with the Xiangxiang Procuratorate Criminal Complaint [2021] No. 93 accusing defendant Fu X of committing contract fraud and fraud, and on November 5, 2021, supplemented the indictment with the Xiangxiang Procuratorate Criminal Complaint [2021] No. 2 Supplementary Indictment Decision. After accepting the case, this court formed a collegial panel in accordance with law and heard the case in public on November 30, 2021. The Xiangxiang Municipal People's Procuratorate appointed procurator Liu Xiaoxi to appear in court to support the prosecution. Defendant Fu X and defender Ding Yuxi both attended the court to participate in the proceedings. The case is now closed.
The Xiangxiang Municipal People's Procuratorate of Hunan Province alleged:
1. Contract fraud
1. On October 12, 2016, Huang X, Dong X 1 and others jointly established a certain limited company (hereinafter referred to as "so-and-so company"), and a certain land bureau in Anhui Province, a certain investment promotion agreement, and a certain power generation project. A certain company signed a construction agreement with a certain company in Henan in the early stage, and then collected the foundation pit construction deposit from a number of construction companies in the form of subcontracting, resulting in stability maintenance pressure, and after the intervention of the local government, the received deposit was refunded and the project was suspended. In the first half of 2019, defendant Fu xxx found Dong xx1 and proposed to contribute capital to participate in the partnership, but he did not actually contribute capital, but in the capacity of deputy general manager of a certain co., LTD. in Anhui Province (without a formal letter of appointment), liu xx, wang xx, Hu xx, Peng xx, and four people signed the "Internal Joint Venture Cooperation Agreement on Wind Power Generation Foundation Projects in Zhongxingji Town, So-and-So ZhongxingJi Town" in a certain county in Anhui Province in the name of a certain construction company in Xiangxiang City, and agreed that a deposit of 60,000 yuan for a foundation pit would be built by Liu and others. Subsequently, Liu and others paid the contract deposit of 1.2 million yuan through transfer. Among them, 600,000 yuan was transferred to the account of the extension company, and another 600,000 yuan was transferred to the private account of Fu X, which was not used for engineering projects, but was used by Fu X for personal squandering.
2. On July 6, 2020, defendant Fu X, knowing that the 300MW Phase I 50MW wind power basic project in a certain county in Henan Province had not been approved by the government and did not have the condition of starting construction, signed an internal cooperation agreement with Yu Mou1 on the 50MW wind power basic project of the first phase of 300MW in Huaibin County, and the contract stipulated that a certain liability company in Duchang County, Jiangxi Province, would contract 30 foundation pits for the 50MW wind power generation foundation pit of the first phase of 300MW in a certain county. Subsequently, Yu Mou1 transferred a construction deposit of 200,000 yuan to Fu X's private agricultural bank account.
2. The crime of fraud
1. Defendant Fu xxx promised to start construction immediately after receiving the deposit from Liu xxx and others, because the project did not pass the approval and approval of the administrative department, it was in a state of suspension, and it did not have the conditions to start construction at all, Fu xxx could not arrange for them to start construction, Liu xxx and others asked when Fu xxx started construction, Fu xxx always found various excuses to delay time. In order to appease Liu X and others, Fu X, a certain company in Henan and a certain company in Anhui (both without actual operating ability) registered in his name, once again signed the "Subcontracting Project of a Certain Project" and "An Internal Cooperation Agreement for the First Phase of 50MW Wind Power Generation Foundation Projects in a Certain County" with Liu X and others in the name of a certain company, and repeatedly asked Liu and others for coordination fees, tea fees, etc. totaling 168,600 yuan. Since the signing of the contract, the contract has not been performed, and the security deposit and other expenses have not been refunded, resulting in major losses to the property of Liu and others.
2. After the signing of the "Internal Cooperation Agreement for the First Phase of 50MW Wind Power Basic Projects in a Certain County", the defendant Fu X demanded 30,000 yuan from Yu X 1 on the grounds that he needed money to run the project outside. The money was credited to the personal account of the defendant paid under the name of so-and-so.
On May 20, 2021, defendant Fu X was arrested at a certain hotel in Weifang City, Shandong Province.
The evidence that the public prosecution organs have determined the above facts include: 1. documentary evidence such as household registration information, capture process, and bank transaction flow; 2. statements by the victims Liu X, Wang X, Hu X, Peng X1, Yu X1, and others; 3. Defendant Fu X's confession and defense; 4. Testimony of witnesses Dong X 1, Long X X, Yu X 2, Shi X, etc.
The public prosecution organ held that defendant Fu XX, for the purpose of illegal possession, defrauded the other party of property in the process of signing and performing the contract, and the amount was huge, and his conduct constituted the crime of contract fraud; the defendant Fu xxx had already begun to commit a crime, but due to reasons other than his will, he partially failed to succeed, which was an attempted crime. Defendant Fu X, for the purpose of illegal possession, defrauded public or private property in a huge amount, and his conduct constituted the crime of fraud. If the defendant pays a certain person to commit several crimes, he shall be punished for several crimes at the same time. Therefore, it is submitted to this court for sentencing in accordance with law.
Defendant Fu X argued that he did not have the subjective intent to defraud Wang, Liu, Hu, Peng, and Yu, and did not constitute a crime.
The defense put forward the following defense opinions: Defendant Fu X accepted a deposit of 600,000 yuan and Yu X1 for the construction of a wind power plant foundation in the name of a certain construction engineering company in Hunan Province, which did not constitute the crime of contract fraud; accepting a total of 168,600 yuan and Yu X 130,000 yuan from Liu X and others did not constitute the crime of fraud.
After trial, it was ascertained:
1. On October 12, 2016, Huang Deping, Dong X 1 and others jointly established Anhui X New Energy Co., Ltd. (hereinafter referred to as X Company), and signed an investment promotion agreement with the Land Bureau of a certain county in Anhui Province and a certain market town, and a certain power generation project. A certain company signed a construction agreement with a certain construction company in Henan in the early stage, and then collected the foundation pit construction deposit from a number of construction companies in the form of subcontracting, resulting in stability maintenance pressure, and after the intervention of the local government, the collected deposit was refunded and the project was suspended. In the first half of 2019, defendant Fu X found Dong X 1 and proposed to contribute to participate in the partnership, but he did not actually contribute capital. Through Peng X3's introduction, defendant Fu X knew Wang X, Liu X and others, and knowing that the wind power project project in Zhongxing Ji Town, a certain county in Anhui Province, could not start construction and that a certain company had no funds for construction, contacted Liu X, Wang X, Hu X and Peng X1 as deputy general manager of New Energy Technology Co., Ltd. (without formal letter of appointment), promised to contract the wind power generation foundation pit to Liu X and others for construction, agreed on a deposit of 60,000 yuan for a foundation pit, and Liu and others to undertake the construction of 20 wind power foundation pits. Subsequently, Liu and others successively paid 1.2 million yuan to so-and-so through bank transfer, of which 600,000 yuan was transferred to the account of a certain person, 600,000 yuan was transferred to a certain company, and Liu and others paid 70,000 yuan for activities. Wang Mou and others also sent several pieces of he tianxia and white hibiscus king cigarettes and two boxes of horse lantern wine. The money transferred to the account of a certain person, except for part of it for daily expenses, does not indicate where it went.
The specific transfers are as follows:
(1) On May 14, 2019, Peng Mou1 entrusted his daughter Peng Mou to transfer 200,000 yuan to pay a certain person's account;
(2) On May 13, June 5, October 17, October 24, and October 31, 2019, Liu transferred and paid 200,000 yuan, 40,000 yuan, 100,000 yuan, 50,000 yuan, and 50,000 yuan to a certain person's account;
(3) On May 28, 2019, Hu entrusted his wife Zhu to transfer and pay 30,000 yuan to a certain person's account;
(4) On May 14, 2019, Long transferred 600,000 yuan to the account of the extension company.
Defendant Fu xxx promised to start construction immediately after receiving the deposit, because the project did not pass the approval and approval of the competent administrative department, and did not have the conditions to start construction at all, Fu xxx could not arrange for Liu xxx and others to start construction, and when Liu xxx asked fu xxx when to start construction, Fu xxx always found various excuses to prevaricate. On October 31, 2019, Mr. Fu, as the deputy general manager of a certain company, signed the "Internal Joint Venture Cooperation Agreement on Wind Power Generation Foundation Projects in a Certain Market Town in a Certain County" with Liu X, Wang X, Hu X and Peng X1 in the name of a certain construction engineering company in Hunan Province (hereinafter referred to as "X Company") in a certain county in Anhui Province. In order to appease Liu and others, Fu X subsequently registered in his name Anhui X New Energy Technology Co., Ltd. (hereinafter referred to as "X Company") and Henan X X New Energy Technology Co., Ltd. (hereinafter referred to as "X Company") (both without actual business capacity) and Liu X et al. signed the "Anhui X New Energy Technology Co., Ltd. Micro wind power generation project subcontract" and "Anhui X New Energy Technology Co., Ltd." on November 18, 2019 and May 14, 2020 respectively. A certain county 300MW phase I 50MW wind power generation foundation project internal cooperation agreement, and repeatedly asked Liu and others for coordination fees, tea fees, etc. a total of 98600 yuan, by Wang through WeChat transfer 98600 yuan to pay so-and-so. After receiving 670,000 yuan of funds and other coordination fees from Wang, Liu and others, defendant Fu transferred 140,000 yuan and 30,000 yuan to Dong X 1 on May 15, 2019 and October 13, 2020, respectively. Dong X 2, the father of Dong X 1, transferred 100,000 yuan and 200,000 yuan to Fu X on March 20, 2019 and August 9, 2019, respectively, and Dong X 1 transferred 100,000 yuan to Fu X on September 10, 2020, totaling 400,000 yuan. In addition, there is no transfer of funds between Fu X and Dong X 1, Dong X 2 and The Extension Company. After the contract between Liu X and Fu X was signed, due to the actual inability to perform, the victims Wang X, Liu X, Hu X, and Peng X 1 asked fu X to return the security deposit, and the defendant Fu X refused to return the compensation by means of prevarication and evasion.
Later, Fu X refunded Wang's compensation of 50,000 yuan through WeChat transfer. After the incident, a certain company froze 200,000 yuan, which has been returned to the victim.
On May 20, 2021, defendant Fu xxx was arrested at a certain hotel in a certain city in Shandong Province.
The evidence identified are:
1. Documentary evidence
Household registration information, proving that Fu X was an adult at the time of committing the crime and his household registration information.
The arrest process proves that the defendant Fu X was arrested on May 20, 2021.
After the defendant paid the bank statements of the Agricultural Bank of China 6228××××5976, 6230××××5172 and the 3420 ××××6152 accounts of a certain company, it was proved that after paying the funds of so-and-so to defraud Wang, Liu, Hu Xinhua, and Hu, 670,000 yuan was transferred to the personal account of the defendant Fu xxx, and 600,000 yuan was transferred to the account of a certain company; and the capital transactions between Fu xxx and Dong xx 1 and Dong xx 1's father, Dong xx2.
The transaction flow of Liu X, Long X, Zhu X and Peng Dan Bank proves that their funds are transferred to the account of a certain person and a certain company account.
WeChat transfer records, proving that Wang transferred 98600 yuan through WeChat to pay so-and-so.
The chat records of Liu X, Wang X and Fu X prove that under the circumstance that the construction cannot be carried out, the victims Liu X and Wang X recover the security deposit and other expenses from Fu X, and Pay X refuses to return the compensation under various pretexts.
A certain development and reform commission in Henan Province proved that the NDRC had not approved the establishment of a 300MW wind power project in a certain county, nor had it accepted a certain new energy company in Henan Province to declare such a project.
A certain development and reform commission in Anhui Province proved that the wind power project should be approved by the Provincial Development and Reform Commission, and a certain 300MW wind power project has not obtained the approval of the NDRC, nor has it been reported to the county development and Reform Commission.
Minutes of the Pre-examination Project Meeting of the Leading Group for Investment Promotion [2017] No. 3 proves that on May 9, 2017, a certain relevant department conducted a pre-examination of the wind power equipment production, 300MW wind farm and wind power tourism characteristic town construction project proposed to be invested by a certain new energy technology co., LTD. in Anhui Province.
On July 26, 2016, the Environmental Protection Bureau of a certain county in Anhui Province issued the "Opinions on the Environmental Protection Review of the Phase I 100MW Project of a Certain 300MW Wind Power Project in Anhui Province" and the "Preliminary Review Opinions on the Planning and Site Selection of the First Phase of the 300 MW Power Generation Project in a Certain Market Town" issued by the Urban and Rural Construction and Planning Bureau of a certain county on January 31, 2018, which proved that the wind power project in a certain town was still in the process of site selection and environmental protection, and did not have the conditions to start construction.
Zhongzheng [2020] No. 43 of the People's Government of a certain town "Report on Applying for the Construction of the First Phase of a 300MW Wind Power Project in A Certain County" proves that the wind power project has not yet obtained review and approval at the time of the incident.
The "Registration Information Form" proves that the micro wind power generation project in a certain county passed the audit in 2020.
Zhongzheng [2017] No. 134 of the People's Government of A Certain Town", "Report on the Request for Investigation of the Relevant Situation of the Breeze Power Generation Project in A Certain Town", "Explanation of the Investment Attraction of A Certain New Energy Technology Co., Ltd.", and "Report on the Stability Issues Involved in the 300 MW Breeze Power Generation Construction Project in Zhongxing Ji Town of A Certain County" [2018] No. 105 of the Public Office of a Certain County, which proves that the micro wind power generation project in a certain town involves stability maintenance issues.
"Wind Power Generation Basic Project Internal Joint Venture Cooperation", the construction unit of the agreement is a certain new energy technology co., LTD., the person in charge is Fu xx, the construction unit is a certain construction engineering co., LTD. in Hunan Province, and the agreed project name is a 300MW wind power project in a certain county, which proves that on October 31, 2019, Fu xxx signed a false contract with Wang and others without obtaining the approval and construction of a 300MW wind power project in a certain county, defrauding Wang and others of their property.
A certain new energy technology co., LTD. "breeze power generation project subcontract" and "part of the contract within the project construction management clauses", the contract of the project contract issuing unit is a certain new energy technology co., LTD., the project subcontracting unit of Hunan Province a certain construction engineering co., LTD., the project project is a certain breeze power generation 300MW project project, proving that on November 18, 2019, the defendant paid xxx to fictitiously defraud Wang X and others of the property and property.
"Internal Cooperation Agreement on 50MW Wind Power Basic Project phase I of 300MW in a certain county" and "Internal Cooperation Agreement on Engineering", the agreement engineering construction unit so-and-so new energy technology co., LTD., the engineering cooperation unit is a certain construction engineering co., LTD. in Hunan Province, the project name is a certain county 300MW breeze power generation project, it proves that on May 14, 2020, Fu X was paid so-and-so on May 14, 2020 to fictitiously defraud Wang X and others in the case of the victim Wang X and others recovering the foundation pit deposit.
"Wind Power Generation Basic Engineering Internal Joint Venture Cooperation and Cooperation" and other subcontracting agreements, the copy of which is provided by Zhang XX, the person in charge of a certain construction engineering company in Henan, the original is deposited in the company, the agreement was signed on November 16, 2016, the contracting party is a certain new energy technology co., LTD., the contractor is a certain construction engineering co., LTD. in Henan, and the project project is a 300MW wind power project in a certain county, proving that the company and Hebei are so-and-so
On November 16, 2016, The Construction Engineering Co., Ltd. signed an engineering construction contract for the project, contracting the overall project to a certain construction engineering company in Henan, and the company subcontracted the project to other engineering companies.
The construction contracting contract between a certain construction engineering company in Hunan Province and Peng X4 and Li XX proved that Wang X and others signed a basic project contract with Fu XX and then subcontracted to Peng XX4 and others.
The industrial and commercial registration, audit materials, business licenses and articles of association of Anhui X New Energy Technology Co., Ltd., Anhui X X New Energy Development Co., Ltd., Anhui X X New Energy Technology Co., Ltd., and Henan X X New Energy Technology Co., Ltd. prove the basic situation of the above company, and Fu X is the legal representative of Anhui X New Energy Development Co., Ltd., Anhui X X New Energy Technology Co., Ltd., and Henan X New Energy Technology Co., Ltd.
The settlement business application proves the fact that the extension company returned 200,000 yuan to Long Mou in the original way.
2. Victim statements
Liu stated that in March 2019, he knew Fu xxx, deputy general manager of Anhui new energy technology co., LTD., and learned that a certain company was engaged in wind power projects and needed to build a foundation pit, so he invited Wang, Hu, and Peng to learn about the situation with Fu xx; in May 2019, they met Fu xxx in Anhui, and Fu xx told them that xxx company would build 100 wind towers in Zhongxingji Town, a certain county in Anhui Province. A tower foundation project needs 528,000 yuan, if Liu they want to do, each foundation pit to pay a deposit of 60,000 yuan, they decided to undertake the construction of 20 foundation pits after consultation, and said that there is only a capacity of 1 million yuan; Fu so-and-so let them give him a guarantee of 1 million yuan, and promised to sign a contract to start construction immediately; for safety reasons, they decided to call 600,000 yuan to the account of so-and-so company, call 400,000 yuan to pay so-and-so, starting from May 2019, the four people separately put together money to their own or relatives and friends' bank accounts. The WeChat account successively transferred 600,000 yuan to the account of a certain new energy technology co., LTD. in Anhui and 600,000 yuan to the account of a certain person; Fu so-and-so received Their security deposit and let him go home and wait for a week, ready to enter the market, but waited until October 2019 and still did not enter the market, during which Fu xxx asked Liu X, Wang X and others for money many times on the grounds that they needed money to do things, and the four of them transferred money through bank transfers. WeChat transfer transferred to Fu xxx 368,600 yuan; another fu xxx asked them to go to Anhui and bring good cigarettes and good wine when the project was about to start, they spent more than 200,000 yuan for this, travel expenses of about 100,000 yuan; in October 2019, Fu xxx let them sign a contract "A certain Qiu County 300MW wind power generation infrastructure project internal joint venture cooperation agreement", is a certain new energy technology company and a certain construction engineering company in Hunan Province for Party A and Party B, after signing the agreement, Fu xxx let them go home and wait for the letter By November 2019, because there had been no information on the start of construction, they went to Anhui to find Fu X, Fu X was already the legal representative of Anhui X New Energy Technology Co., Ltd., Fu X told them that the project of so-and-so market town could not be done, there was a new project for them to do, and signed an agreement with them for a certain county breeze power generation 300MW project project, and the breeze power generation project was handed over to Wang and others to do; until May 2020, they did not receive the notice of Fu X to start construction, asking for a refund from Fu X. And said that if they did not refund the refund, they would call the police, and Fu X signed a cooperation agreement with them on the first phase of 50 MW wind power generation foundation project in a certain county, with a certain new energy technology co., LTD. in Henan and a certain construction engineering company in Hunan Province signing for Party A and Party B, and the project site was in a certain township in Huaibin County. They did not find a wind power construction site in a certain town in Funan County and a certain person in Henan Province; they were paid a total of 1.3686 million yuan for fraud.
The statements of the victims Peng X2, Wang X and Hu X were basically consistent with Liu X's statements, proving the fact that they were paid a certain person to defraud 1.3686 million yuan for undertaking the construction of a microwind power generation project in ZhongxingJi Town, a certain county in Anhui Province.
3. Witness testimony
Witness Dong X1's testimony proves that a certain company has carried out a 300MW wind power project in a certain market town in Huoqiu County, and was stopped in 2019 due to a crack in the capital chain; Fu X participated in the yanyun company as an investor in 2018, but has not invested, and later the company asked him to be the general commander of the project, but did not have the right to sign a contract on behalf of the company; in the process of operation, a certain construction engineering company in Hunan Province did not have contact with the company and did not sign a contract. The text of the agreement signed by Fu xxx and a certain construction engineering company in the name of a certain company is not the text of the project specification; the company received 600,000 yuan of funds transferred from a certain construction engineering company in Hunan Province, which the company believes is the investment money of Fu xx, which is transferred to his father's account and used by the company to pay the wages of migrant workers; the company issued a bill to receive 1.2 million yuan of funds from a certain construction engineering company in Hunan Province, but only 600,000 yuan was actually entered into the company. Because Fu X did not have an actual investment, and there were other units that demanded a refund because Fu X came to the company, the company dismissed Fu X in April 2020, and after cleaning up the deposit collected by Fu X, the company did not receive the money transferred by Fu X. Fu later registered seven or eight new energy companies, all of which were developing wind power generation. After the incident, the funds in the account of his father Dong Mou 2 were frozen, and 200,000 yuan was returned to Long Mou after thawing.
The testimony of witness Peng Mou3 proved that the 300MW wind power project in a certain town was jointly operated by Huang X, Dong X 1, Fu X and a surname Zhang, who was working as a contract foreman at the construction site at the time, and later because the project illegally collected the deposit led to the government, the project was stopped, Huang X came forward to deal with and refunded the deposit and left the project, and the project could not be carried out because there was no capital investment. Fu X and Dong X 1 want to get the project down, he introduced Wang X to Fu X, but did not know that Fu X was doing a game to cheat money. I heard that Wang Mou and others were defrauded of more than 1 million yuan.
The testimony of witness Peng Mou4 proves that a certain construction engineering company in Hunan Province, operated by Wang and others, contracted the foundation pit business of wind power generation in a certain county and a certain town, and he signed a construction contract under Wang, and transferred 600,000 yuan of funds to the account of the extension company according to Wang's request.
Witness Long X's testimony proved that Peng X4 learned that after Li X knew Wang X and others, they learned that they contracted a wind power project in a certain county, and after inspection, they thought that they could do this project, so they signed a subcontracting agreement with Wang X and others to contract the business of 20 foundation pits, and Wang asked them to advance 30,000 yuan per foundation pit, so that they gathered 600,000 yuan and entered the account of the extension company on May 14, 2019.
Witness Zhu's testimony proves that his personal account transferred 30,000 yuan to Fu's personal account 6228******** on May 28, 2019, which is the contract money for Hu and Liu and Wang to engage in power projects in Anhui, but the project was not successful, and the money they invested did not come back.
The testimony of witness Cheng X proves that there is a wind power project developed by a certain company in a certain town, which is actually controlled by Dong X1 and Fu X participates in the development. In 2017, due to the incident caused by the construction unit to return the deposit, the government came forward to return the deposit in place, but the funds of the extension company were also broken, and the project was stopped.
4. The defendant's confession
Fu X confessed, proving that a certain wind power project was developed by Huang Deping and Dong X around 2016, collected a lot of construction unit deposits, the project was not handed over to the construction unit as scheduled, causing a group incident, and later by a certain county government came forward, refunded some deposits, the project did not have funds to continue, Huang Deping left the company, the project was stopped; Dong X 1's brother Dong invited him to participate in the project, at that time the extension company did not have a penny, wanted to find someone to invest, in order to attract investors to invest In March 2019, Wang mou found through Peng Mou 3 that he wanted to contract the construction of the foundation pit, and after discussing with Dong Mou1, he decided to collect Wang Mou's 60,000 yuan of foundation pit deposit for each of them in the name of contracting the construction of the foundation pit, Wang and his companions discussed, and after returning to Hunan, Wang transferred 670,000 yuan to his personal account. Transferred 600,000 yuan to the account of the extension company. Among them, 70,000 yuan he needed activity funds for coordination fees to Wang and others, they successively transferred money, and also sent a few pieces and Tianxia, Furong King, two boxes of horse lantern wine; after Wang paid the deposit, he let Wang and others return to Hunan, ready, a week later can start, but after a few months has not started, he gave Wang and others the reason why they have not started work is that the investor has not yet come to the money, the progress payment is difficult to return, and then Wang has been urging the early project, he delayed for various reasons; the reason why they cannot safely start construction , because there is no real investor, if you arrange to start construction, after a few days will wear a gang; in October 2019, Wang Mou and others feel that something is wrong, urging him to start work at the same time asking to sign a contract with him and came to Huoqiu and Zhongxing Ji Town on October 31, 2019, he played a contract in the company, and then took the official seal of the Yanyun Company in Dong Mou1's hand, and signed a contract with Wang and others in the "so-and-so hotel" in the town, which is different from the company's formal contract sample; after the contract was signed, because there was no investor, Unable to perform the contract at all, Wang and others urged tightly, came to Huoqiu County to find him and Dong Mou1, asking for a refund; later he registered "so-and-so new energy technology co., LTD." and "Henan so-and-so new energy technology co., LTD.", deceived Wang and others to say that he had wind power projects in so-and-so county and so-and-so city, in order to delay time, in fact, there was no operation; he and Dong 1 agreed to invest 5 million yuan to the yanyun company, but there was actually no investment, but he sucked more than 1 million yuan of funds from the outside to the company, counting his investment, After the company accounted for 18% of the shares; he received 670,000 yuan of funds transferred to personal accounts by Wang And others, which were used for daily expenses and mistresses, and the others were borrowed by Dong Mou1 to repay debts; his mobile phone registered two WeChat signals "Jiangnan Yiye" and "Indifferent Fame and Fortune", and his wind power projects in so-and-so county, so-and-so county, etc. did not get the government's approval, and Signed a cooperation agreement with Wang mou and others on the Huoqiu County wind power generation project to ask for a deposit, Dong Mou1 did not know.
5. Two copies of audio-visual materials, proving the source of the WeChat chat transfer records between Fu xxx, Wang xx, and Liu xx, and the interrogation of xx.
After presenting and cross-examining the above evidence in court, defendant Fu X did not issue a cross-examination opinion; defender Ding Yuxi had no objection to the authenticity and legality of the evidence, but had objections to the relevance, holding that the purpose of proof could not be achieved.
2. On July 6, 2020, defendant Fu X, knowing that the 50 MW wind power basic project of the first phase of 300MW in a certain county had not been approved by the government and did not have the conditions to start construction, signed an "Internal Cooperation Agreement on the 50MW Wind Power Basic Project of phase I of 300MW phase I of a certain county", and the contract stipulated that a certain company in Jiangxi would contract 30 foundation pits of the 50MW wind power foundation project of the first phase of 300MW in Huaibin County, and required Yu Mou1 to pay a construction deposit. On July 17, 2020, Yu X1 transferred the construction deposit of 200,000 yuan into the private account of the Agricultural Bank of China of 6228******** by defendant Fu X. After signing the contract, defendant Fu X demanded 30,000 yuan from Yu X 1 on the grounds that he needed to use money to run the project outside the project, and Yu X 1 transferred 30,000 yuan to the personal account of defendant Fu X at the Agricultural Bank of China twice.
There is evidence to determine the above facts
Yu X 17172 ×××× 9141 bank card capital flow, proving that Yu X 1 on July 17, August 10, August 15, 2020 to pay a certain Agricultural Bank of China personal account 6228 ******** a total of 230,000 yuan.
Yu X 1 and Fu X's WeChat account "Jiangnan Yiye" chat records, proving that Yu X 1 asked Fu X about the start time after signing the contract and paying the deposit, Fu X delayed on the pretext that the approval document of the NDRC was not issued, and then because the contract could not be performed, Yu X 1 recovered the construction deposit, and Fu X used various excuses to prevaricate and refused to return.
"Internal Cooperation Agreement on 50MW Wind Power Basic Project of Phase I of 300MW in A Certain County", the construction party (Party A) is a certain energy technology co., Ltd. in Henan, the construction party (Party B) is a certain limited liability company in Jiangxi, the project name is a 300MW wind power project in a certain county, the location is in Henan Province, proving that Fu X's fictitious wind power project signed a false project construction contract with Yu X 1, defrauding Yu X 1 of the facts.
2. The victim's statement
Yu X1 stated that he knew Fu X in Anhui around 2018, knew that Fu X was engaged in wind power projects, had a lot of business, and wanted to cooperate with Fu X; on July 6, 2020, he and Fu X signed a construction contract in Anhui X, agreeing to start construction on July 28, 2020, and he made a construction deposit of 200,000 yuan on July 17, 2020 to pay a certain person's account; then Fu X asked to pay a transfer of 30,000 yuan on the grounds of handling procedures in Nanjing, and he transferred 30,000 yuan to so-and-so in two installments After that, Fu xxx perfunctory him for various reasons, he had to pay so-and-so for a refund in the New Year, and Fu so-and-so could enter the construction site with the approval of the NDRC, and also promised to refund the money, he contacted Fu so-and-so to ask to meet, and Fu so-and-so has been avoided; in 2021, he went to Anhui to find Fu so-and-so and learned that he was arrested for suspected fraud.
Witnesses Yu X2 and Shi X testified that Yu X 1 was defrauded of 230,000 yuan in the name of the construction deposit of the wind power project.
4. The defendant's confession and defense
Defendant Fu X's confession proved that in July 2020, Yu X 1 asked him to contract the construction project of the wind power generation project, he told Yu X 1 that he had registered a certain new energy technology company in Henan, there was a wind power project in a certain town, there was a foundation pit business to do, after several discussions, he and Yu X 1 signed the "Internal Cooperation Agreement for 50 MW Wind Power Basic Projects in a Certain County 300MW Phase I", he signed the name of the builder, and Yu X 1 signed the name of Wang X, the legal representative of a certain engineering company in Jiangxi After the agreement was signed, he asked Yu Mou 1 to get 300,000 yuan of construction deposit, and Yu Mou 1 to play 200,000 yuan into his personal account; after receiving the deposit, he did not arrange for Yu Mou 1 to build, because the project approval document did not come down; around August, he asked Yu Mou 1 for 30,000 yuan on the grounds that he needed money to do things; the first 200,000 yuan was spent by him in Shandong financing, and 30,000 yuan was used for daily expenses; Yu Mou 1 urged for a deposit in WeChat.
5. Identify the record, proving that Yu X 1 identified the perpetrator who defrauded him of 230,000 yuan as Fu X.
The above evidence, after being presented and cross-examined in court, the defendant Fu XX admitted that it was true that he had received 1.23 million yuan from Yu X, but it was not fraud.
Defender Ding Yuxi cross-examined the evidence and argued that there was no objection to the authenticity and legality, but it could not achieve the purpose of proof.
This court's review held that the above evidence, with its legal source and true content, is related to the case, and neither the defendant nor the defender has issued a substantive cross-examination opinion, and this court confirms it in accordance with law. Based on documentary evidence and the statement of the victim, Wang, it was determined that the defendant paid so-and-so to return 50,000 yuan and recovered 200,000 yuan to the victim.
Defendant Fu X and his defender did not submit evidence to this court.
This court held that the defendant Fu X, for the purpose of illegal possession, defrauded others of property and property by means of fictitious wind power generation projects and the signing of false contracts with others, and the amount was particularly huge, and his conduct constituted the crime of fraud, and the facts of the crime of the public prosecution organ accusing the defendant of committing fraud were clear, the evidence was indeed sufficient, and the crime was established. Defendant Fu xxx did not obtain the right to contract the project, but used the signing of a false contract and could not perform the contract as a means to defraud others of property, which did not meet the constituent elements of the crime of contract fraud, and this court does not support the public prosecution opinion of the public prosecution organ accusing defendant Fu xxx of committing contract fraud. Defendant Fu X defrauded RMB1.2 million in the name of the foundation pit deposit in a false contract signed with Wang X and others, because the victim insisted on transferring 600,000 RMB of it into the company named by the defendant, and although the Defendant failed to dispose of the money through the company, the victim's losses had actually been caused; the Defendant paid X X for a fictitious wind power project to defraud Yu X of 1.3 million yuan according to the contract, but Yu X 1 actually only made 200,000 yuan, the fraud had been completed, and the amount actually obtained by the defendant should be regarded as the completed amount, This court does not support the public prosecution opinion of the public prosecution organ that the defendant Fu xx's conduct is an attempted crime. The property that the defendant paid so-and-so to ask the victim in the name of tea and water fees, coordination fees, handling fees, etc., were all implicated acts based on fictitious wind power projects, and should be included in the amount of the crime. After the defendant pays so-and-so for a crime, he truthfully confesses the facts of the crime, which is a confession and may be given a lenient punishment in accordance with law; the defendant pays so-and-so for illegally possessing other people's property and shall return compensation in accordance with law. Defendant Fu xxx has returned 50,000 yuan and has recovered 200,000 yuan, and may be given a lighter punishment as appropriate. Defendant Fu X did not actually invest in a certain company, and after knowing that so-and-so company did not have investment and construction funds, and that so-and-so wind power project had not obtained administrative approval, and was stopped due to stability maintenance issues, he still used the project as bait, defrauded the victim Wang X and others of their property in the name of collecting the foundation pit deposit, collected the construction deposit of Yu X 1 on the grounds of the fictitious wind power generation project in so-and-so county, and used part of the funds for personal consumption after collecting the money, and his subjective intention to illegally possess it was obvious; according to Fu X and Dong X 1, The bank transfer situation of Dong X2 and other evidence in this case, the amount of money transferred by Dong X 1 and Dong X 2 to Fu X is more than the amount of money transferred by Fu X to Dong X 1 and Dong X 2, there is no record of transfer and transfer between Fu X and so X company, and defendant Fu X has not made a reasonable explanation for the use of the funds collected, and defendant Fu X and defenders Liu Zhilei and Ding Yuxi believe that the defendant Fu X has no intention of illegal possession, which is inconsistent with the facts verified, and this court does not accept it.
Accordingly, in accordance with articles 266, 64, 67, 3, 45, 47, 52, and 53, 1 of the Criminal Law of the People's Republic of China, the judgment is as follows:
1. Defendant Fu X committed the crime of fraud and was sentenced to 11 years' imprisonment and fined 300,000 yuan.
(The sentence is calculated from the date of enforcement of the judgment, and the penalty shall be paid within 10 days after the effective date of this judgment within 10 days of prior detention from May 20, 2021 to May 21, 2021, i.e., from May 22, 2021 to May 19, 2032. ）
2. Order the defendant to pay a refund of 1,118,600 yuan to Wang, Liu Yadong, Hu, Peng, etc., and order the defendant to pay a refund of 1,230,000 yuan to the remaining. (Refunds are limited to one month after the entry into force of this judgment.) ）
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