Guide
In practice, in the case of loan-type fraud, if the subjective intention of illegal possession is presumed, the subsequent sudden repayment behavior of the perpetrator may oppose the establishment of the presumption. Many places take the time of filing a case as a limit, and all those who return the money before filing the case are not guilty, believing that there is no intention of illegal possession in the subjective aspect, and the presumption is not established, regardless of whether the source of the money returned is legal or illegal.
The author believes that although such an operation is easy to practice, but there are unreasonable points, the act of repaying money should be included in one of the factors that examine whether the subjective aspect has the intention of illegal possession, rather than a one-vote veto system, such as the source of the money, and whether it is a remedy for the discovery and disclosure of the crime, etc., and then analyzed together with other evidence, and finally draws the conclusion of whether it is presumed that there is a subjective intention of illegal possession.
Determination of the crime of "borrowing money and not repaying" type fraud
gist
Borrowing money from others in the name of project capital needs, and all of them are used to repay arrears and gambling, and the loan cannot be repaid when due, which should be regarded as the crime of fraud.
To distinguish the nature of the actor's "non-repayment of the loan", full consideration should be given to the subjective intention of the actor when borrowing money, the ability to repay, and the use of the borrowed items.
case
Prosecuting organ: Chongqing Pengshui Miao Tujia Autonomous County People's Court.
Defendant: Luo Xiaobing.
In September 2012, Luo Xiaobing met Li Xingmei. From December 2012 to January 2013, Luo Xiaobing fabricated that he needed funds to do projects in Chongqing, and repeatedly made oral loans to Li Xingmei under the guise of high interest. Li Xingmei successively embezzled 2.3191 million yuan of the poverty alleviation and mutual aid funds he managed to Luo Xiaobing. By the time of the incident, Luo Xiaobing returned Li Xingmei 276,000 yuan, and the remaining 2,043,100 yuan of borrowing was used to repay debts and gambling.
Trial
After trial, the Pengshui Miao Tujia Autonomous County People's Court held that Luo Xiaobing, for the purpose of illegal possession, had defrauded others of their property by fabricating facts and concealing the truth, and the amount was particularly huge, and his behavior had constituted the crime of fraud. Luo Xiaobing was sentenced to 11 years' imprisonment and fined 500,000 yuan in accordance with law.
Luo Xiaobing appealed against the first-instance judgment, holding that the relationship between him and Li Xingmei was a loan and loan relationship and did not constitute a crime.
After trial, the Fourth Intermediate People's Court of Chongqing Municipality held that Luo Xiaobing, having already owed a huge amount of foreign debt and had no stable source of income, concealed his financial situation of insolvency, fabricated the fact that he was doing poor money for the project in Chongqing, and used high interest rates as bait, so that Li Xingmei mistakenly believed that Luo Xiaobing had a reliable investment project and had the ability to repay, and embezzled 2.3191 million yuan of public funds to luo Xiaobing for use. After Luo Xiaobing defrauded the funds, except for a very small part of the funds returned to the victims, the rest of the funds were used for debt repayment, gambling and daily expenses, and the borrowed funds were not properly preserved or reasonably invested, resulting in the inability to return them. Although the relationship between Luo Xiaobing and Li Xingmei is nominally a loan relationship, in essence, Luo Xiaobing has repeatedly defrauded others of huge amounts of property in the name of borrowing without the ability to repay, and should be convicted and punished for the crime of fraud. The judgment dismissed the appeal and upheld the original judgment.
Analysis
"Borrowing money and not repaying" type of fraud, that is, lending fraud, refers to the fraud method in which the perpetrator defrauds public or private property through the form of loan for the purpose of illegal possession. Such crimes occur from time to time in daily life, because the perpetrators are usually carried out under the veil of private lending, and mostly occur between relatives, friends and acquaintances, so there are certain similarities with creditor's rights and debt disputes in civil cases, and strict examination must be carried out when handling such cases to prevent debt disputes from being treated as crimes and to avoid cracking down on innocence.
1. The difference between lending fraud and private lending
The crime of fraud refers to "the act of defrauding public or private property of a relatively large amount or more by using the method of deception or concealing the truth for the purpose of illegal possession, causing the victim to fall into a wrong understanding and "voluntarily" dispose of the property" by deception. There are many similarities between loan fraud and civil creditor's rights and debt disputes, such as transferring property in the name of borrowing, and being unable to repay debts when due. In this case, Luo Xiaobing proposed that there was a verbal agreement between him and the victim to borrow money, and there was also the act of paying the principal and interest, although he could not afford to repay the loan, but his behavior was a private loan, not a fraud. So what is the difference in the form of expression between lending fraud and private lending? How do we judge in a specific case? In the author's opinion, there are mainly the following points:
(1) The subjective intentions of the perpetrators are different
The fraudster subjectively has the intention of illegal possession, that is, the perpetrator has the intention not to return the money when he borrows the money. The crime of fraud takes the purpose of the perpetrator's illegal possession as a subjective constituent element, so the fraudster's "borrowing money" is only a fictitious cover, and subjectively there is no intention to return it. However, normal borrowers have the intention of returning when borrowing, and often only because of objective reasons, the debt cannot be repaid in time.
(2) The methods adopted by the perpetrators are different
Fraudsters will use fictitious facts and concealment of the truth when borrowing money, resulting in the victim's wrong perception, such as fictitious borrowing for some kind of investment or for-profit activity, or fictitious financial situation, so that the victim mistakenly believes that he has the ability to return. In normal lending, borrowers often truthfully inform them of the purpose of borrowing, and rarely use deceptive methods.
(3) The attitude of the perpetrators to the loan is different
Fraudsters do not consider returning the property after defrauding the property, so they have no worries and restraint in the use of the property, directly causing the loss of the property, such as using the loan for gambling, drug abuse or personal profligacy;
2. How to judge the subjective intention of the perpetrator to illegally possess
In judicial practice, many criminals of loan fraud will always suggest that the relationship between them and the victim is normal after being brought to justice, and even provide evidence such as IOUs to corroborate it, which makes it difficult to judge the nature of such cases. For example, the key to determining the nature of Luo Xiaobing's behavior in this case lies in what Luo Xiaobing's true intentions were at that time. Subjective intention exists in the human brain and is an ideology that cannot be directly stripped from the mind for verification. Often only the self-narration of the actor can be relied upon, but the authenticity is questionable, and it is more necessary to combine the specific behavior performance of the actor to make a judgment, because "the behavior is based on the consciousness of the person, or the external manifestation of consciousness." When handling such cases, it is not only necessary to listen to the confessions and defenses of the defendant, but to conduct a comprehensive analysis and judgment based on the defendant's objective behavior and other objective factors, and the behavior of the perpetrator in the crime is often more able to show his subjective intention. When judging whether the perpetrator has the intention of illegal possession, the following aspects should be started:
(1) The reasons and actual uses for which the perpetrator borrowed the money
In normal private lending, the borrower will inform the creditor of the true purpose of the loan, let the creditor know the purpose and risk of the borrowed funds, and then make a decision. In fraud cases, the offender usually fabricates some false loan purposes, such as investment, project construction and other legitimate and lucrative projects, so that the victim has the wrong understanding that the funds he has lent are safe and can be recovered in a timely manner. In fact, after obtaining the loan, the offender will use the money for some high-risk or unrecoverable activities, such as gambling, squandering for himself, etc., resulting in the victim's funds being unable to be recovered. The actual use of funds by the actor will reflect whether the borrower has the intention of illegal possession, and the reasons for borrowing are similar to the actual use, and can also reflect whether the actor has the objective behavior of fabricating facts or concealing the truth when borrowing, which is an important basis for examining the subjective mentality of the actor.
(2) The financial situation of the actor at the time of borrowing
The financial situation of the actor at the time of borrowing is an important factor in judging whether it is ready to return the loan, and the financial situation of the actor combined with its use for the loan can accurately grasp the true mentality of the actor. In many fraud cases, when the offender is heavily indebted or has no ability to repay, he disguises himself as a rich person or has the ability to repay through fictitious facts, such as falsely claiming to own a house, land, luxury car, etc., and squanders the loan after defrauding the loan, resulting in the loan cannot be returned. On the other hand, if the actor himself has better property conditions, although he obtains the loan through fictitious reasons and other means, and uses it for gambling and other activities, causing the loan to be repaid on time, other property he owns, such as real estate, automobiles, stocks, etc., can ensure that the creditor's interests are not lost, it should be determined that the actor has the intention to return the loan at the time of borrowing, and should not be regarded as fraud.
(3) Whether the perpetrator has conduct to conceal his true identity or conceal his whereabouts
In loan-style fraud, the perpetrator uses a pseudonym, a false address or a false document to conceal his true identity before committing the crime, and disappears after he succeeds. Although some offenders use their real identities, after fraudulently obtaining a loan or in the process of recovery from the victim, they hide their whereabouts by changing their mobile phone numbers, changing their place of residence, etc. These acts can also reflect the subjective mentality of the perpetrators who are unwilling to return the loans, and are an important basis for judging the nature of the perpetrators.
In the process of judging the subjective intention of the actor, a comprehensive analysis and judgment shall be conducted in conjunction with the above three points, and whether the actor has the intention of illegal possession shall be accurately grasped.
3. Luo Xiaobing's behavior constitutes the crime of fraud
In this case, although Luo Xiaobing "borrowed" money from the victim in the name of the loan, he also paid part of the interest and principal. However, if its conduct meets the constituent elements of the crime of fraud, it shall be convicted and punished for the crime of fraud on the grounds that:
First of all, Luo Xiaobing had the subjective intention of illegally taking possession of other people's property. Luo Xiaobing himself was already heavily indebted at the time of borrowing, and he had no normal source of income, so he had no ability to repay at all. And Luo Xiaobing after obtaining a loan of more than two million yuan, all used to repay debts and gambling, these purposes can not produce profits, will inevitably lead to the funds can not be recovered, indicating that when he borrowed money, there is no intention and plan to repay the money, subjectively he wants to illegally occupy the victim's property for use, although there is a small amount of interest and principal returned, it is only to cover up the truth, to prevent the victim from discovering in time, so Luo Xiaobing subjectively has the intention of illegally occupying other people's property, in line with the subjective elements of the crime of fraud.
Second, Luo Xiaobing carried out the objective act of fabricating facts to deceive others of their property. Luo Xiaobing fabricated to the victim the fact that he had a project in Chongqing, and used high interest as bait to deceive the victim's trust, and "lent" him more than two million yuan of funds. It was precisely because the victim was deceived by Luo Xiaobing's fictitious facts and gave rise to the erroneous understanding that Luo Xiaobing had a legitimate investment channel, was able to make a profit and recover the loan in a timely manner, that he was willing to take the risk of violating the law and committing crimes to embezzle public property for Luo Xiaobing's use. If Luo Xiaobing informs the victim of the true use of the funds, it is obvious that the victim will not lend public funds to Luo Xiaobing for repayment and gambling. Therefore, Luo Xiaobing carried out the act of fabricating facts, causing the victims to have a wrong understanding, thereby defrauding the victims of their property, and his behavior met the objective elements of the crime of fraud.
Finally, Luo Xiaobing's behavior caused 2,043,100 yuan of property to be recovered, and the amount of his crime was particularly huge, causing heavy losses to public and private property, and the consequences were serious, and he should be convicted and punished for fraud in accordance with the provisions of article 266 of the Criminal Law of the People's Republic of China.
Source: China Court Network