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Source: Selected Cases of the People's Courts, Vol. 2, 2016 (Vol. 96)
Summary of the Trial
In the case of contract fraud caused by private lending, the defendant cannot be found to constitute the crime of contract fraud on the ground that the actual use of the loan is inconsistent with the purpose agreed in the contract, or the agreed collateral cannot realize the mortgage claim, and should be judged in strict accordance with the elements of the crime of contract fraud, if the defendant's behavior is objectively not enough to make the victim fall into a wrong understanding and pay the money, subjectively does not have the purpose of illegal possession, then the defendant's behavior does not conform to the criminal composition of the crime of contract fraud. The defendant shall be acquitted in accordance with law.
Case index
First Instance: Tianjin Binhai New Area People's Court (2014) Binxing Chuzi No. 4 (May 19, 2014)
Second Instance: Tianjin No. 2 Intermediate People's Court (2014) Erzhong Xing Zhong Zi No. 284 (September 2, 2014)
Basic facts of the case
The Tianjin Binhai New Area People's Procuratorate alleged that: On August 9, 2012, defendant Wang Zhe took advantage of his convenience as an assistant to the general manager of Tianjin Free Trade Zone Tianxing Freight Service Co., Ltd. to fraudulently use the company's name to mortgage the goods in the company's warehousing contract agreement at Tianjin Port Huisheng Terminal Co., Ltd. and a Chinese bank transfer cheque of Tianjin Zhengran Labor Service Company with a maturity of 2.8 million yuan on November 9, 2012, and later signed a loan contract with the victim, Li Kunze. The agreed loan amount is 2.8 million yuan, and the purpose of the loan is to purchase transport vehicles. After the contract was signed, the victim Li Kunze remitted 2.52 million yuan to the Guangfa bank account designated by the defendant Wang Zhe as agreed, and the defendant Wang Zhe did not purchase the transport vehicle as agreed after receiving the money, but used the loan to repay the previous debts and escape after personal squandering. On May 27, 2013, defendant Wang Zhe was there
He was captured in the Liangshuai Tianlang Game Hall on Youth Street in Tiedong District, Anshan City, Liaoning Province. Defendant Wang Zhe did not recognize the facts and charges charged by the public prosecution organs, believing that he subjectively had no purpose of illegal possession, objectively did not fraudulently use the name of the company to defraud property, the victim had an understanding of the nature of the company, did not form a misunderstanding, did not squander the property and evaded after borrowing money, and repaid part of the debt, and his behavior did not constitute a crime.
The defense opinions put forward by defendant Wang Zhe's defender are: 1. Wang Zhe's loan to Li Kunze was 2.52 million yuan, and of the 2.52 million yuan actually borrowed by Wang Zhe, including a loan of 500,000 yuan for Liu Zhu, this part of the amount should not be counted within the amount of Wang Zhe's loan; 2. Wang Zhe did not have the purpose of illegal possession and had repayment behavior in the process of signing and performing the loan contract, the agreement provided by defendant Wang Zhe did not cause the victim to fall into a wrong understanding, the three warehousing agreements and checks were requested by Wang Zhe to provide, not provided by Wang Zhe, and the nature of the case should be a private lending dispute.
After trial, the court ascertained that since March 2011, defendant Wang Zhe has served as the assistant to the general manager of Tianjin Port Free Trade Zone Tianxing Freight Service Co., Ltd., responsible for the company's business work, and responsible for the custody of the special business seal of Tianjin Port Free Trade Zone Tianxing Freight Service Co., Ltd., which is only for the company's internal use and has no effect on signing an agreement contract externally. On August 9, 2012, defendant Wang Zhe borrowed money from the victim Li Kunze through the intermediary Liu Zhu and signed a loan contract with the victim Li Kunze, which stated that the borrower was Wang Zhe of Tianjin Port Free Trade Zone Tianxing Freight Service Co., Ltd., and agreed to borrow 2.8 million yuan from Li Kunze for the purchase of transport vehicles by taking the goods in the warehousing contract agreement between Tianjin Port Free Trade Zone Tianxing Freight Service Co., Ltd. and Tianjin Port Huisheng Terminal Co., Ltd. as collateral. At the same time, it was agreed to repay the above loan in one lump sum on November 8, 2012. Wang Zhe pledged to Li Kunze the three copies of the tianjin port free trade zone Tianxing Freight Service Co., Ltd. and Tianjin Port Huisheng Terminal Co., Ltd. in his custody, and stamped the loan contract with the special business seal of Tianjin Port Free Trade Zone Tianxing Freight Service Co., Ltd. In addition, Wang Zhe also pledged to Li Kunze a bank of China cheque that did not fill in the date of issuance, capitalized amount, beneficiary and bank number, and wrote a handwritten note to ensure that the bank would pay unconditionally when the cheque arrived at the payment date, and all legal liabilities arising from the cheque were borne by Wang Zhe personally. On August 10, 2012, the victim, Li Kunze, used his friend Nie Yujun's China Merchants Bank 6212862601586666 bank card to remit 2.52 million yuan to wang Zhe's Guangfa Bank account number named Wang Shengli of the Tianjin Binhai Branch of the Guangdong Development Bank. After receiving the money, defendant Wang Zhe transferred 511,000 yuan to the account of Liu Zhu's wife Zong Mei Na, 40,000 yuan to Li Wei's account, 300,000 yuan to Zhao Yang's account, 100,000 yuan to Wu Yue's account, 50,000 yuan to Xu Liping's account, 432,000 yuan to Li Wei's account and 70,000 yuan to Yu Rong's account on August 13, and the rest of the money was withdrawn or POS consumed, and the transport vehicle was not purchased as agreed. In November 2012, Wang Zhe remitted 300,000 yuan to Ma Zhihui's bank account. From December 9 to 11, 2012, defendant Wang Zhe's parents repaid RMB952,000 to Zhang Dongdong on behalf of Wang Zhe. On December 18, 2012, the victim, Li Kunze, reported the case to the public security organs, which opened the case for investigation on December 19.
On January 5, 2013, the victim Li Kunze filed a (2013) Bintang Min Chu Zi No. 273 civil lawsuit with the Tanggu Trial District of this court on the same facts, listing Wang Zhe and Tianjin Port Free Trade Zone Tianxing Freight Service Co., Ltd. as co-defendants, and at the same time applying for pre-litigation preservation of a house no. 1-904 in Tanggu Yuehai Park, Binhai New Area, Tianjin Binhai New Area, and No. 5-1-101 Xingyuexuan, Tianjin Economic and Technological Development Zone, under the name of defendant Wang Zhe. Tianjin Economic and Technological Development Zone, No. 87 Third Avenue No. 9-3-401 house each. Defendant Wang Zhe's mother, Li Huanyi, appeared in court as an entrusted agent to participate in the civil trial and held many consultations with Li Kunze on repayment in the course of civil litigation. On January 5, 2013, Li Kunze also filed two civil lawsuits against Wang Zhe as the defendant: Bintang Min Chu Zi No. 270 and (2013) Bintang Min Chu Zi No. 272, respectively, claiming that Wang Zhe borrowed 2.8 million yuan from him, and then borrowed 200,000 yuan from him on September 7, 2012 for purchasing transport vehicles, and borrowed 80,000 yuan from him on November 17, 2012, and then Li Kunze withdrew his lawsuits in both cases on November 12, 2013.
On May 27, 2013, public security organs arrested defendant Wang Zhe in the Liangshuai Tianlang Game Hall on Youth Street, Tiedong District, Anshan City, Liaoning Province. On June 25, 2013, the Tanggu Trial District Civil Trial Division of this court transferred the case to the public security organs for handling.
The result of the referee
On May 19, 2014, the Tianjin Binhai New Area People's Court rendered the (2014) Binxing Chuzi No. 4 Criminal Judgment: Defendant Wang Zhe was not guilty.
After the judgment was pronounced, the Tianjin Binhai New Area People's Procuratorate filed a protest, and later, during the trial, the Second Branch of the Tianjin Municipal People's Procuratorate found that the protest was improper and withdrew the protest, and the Tianjin No. 2 Intermediate People's Court made a criminal ruling (2014) Erzhong Xing Zhong Zi No. 284 on September 2, 2014, allowing the Second Branch of the Tianjin Municipal People's Procuratorate to withdraw the protest.
Reason for trial
The effective judgment of the court held that the existing evidence provided by the public prosecution organ was insufficient to determine that the defendant Wang Zhe had used the means of fabricating facts, concealing the truth, and fraudulently using the name of the company in the process of borrowing money from the victim Li Kunze, causing the victim to fall into a wrong understanding and thus lend money, nor could it be found that the defendant subjectively had the purpose of illegal possession, so the public prosecution organ accused the defendant Wang Zhe of constituting the crime of contract fraud Lacked sufficient evidence, and the charge could not be established. Li Kunze may claim rights against defendant Wang Zhe through other lawful channels.
Case Notes
The key issue in this case is how to determine whether the defendant subjectively has the purpose of illegal possession in the fraud case caused by the private lending case, and whether the existing evidence is sufficient to determine that the defendant's behavior constitutes the crime of contract fraud. The collegial panel held that in a case of contract fraud caused by private lending, the defendant cannot be found to constitute the crime of contract fraud on the sole ground that the actual use of the loan is inconsistent with the purpose agreed in the contract, or that the agreed collateral cannot realize the mortgage claim, and should be judged in strict accordance with the constituent elements of the crime of contract fraud, if the defendant's behavior is objectively insufficient to cause the victim to fall into a wrong understanding and pay the money, subjectively does not have the purpose of illegal possession, Then the defendant's conduct does not conform to the criminal composition of the crime of contract fraud, and the defendant shall be acquitted in accordance with law.
I. The determination that the victim is caught in a wrong understanding of the elements
The crime of fraud is the use of deceptive methods for the purpose of illegal possession to defraud a relatively large amount of public or private property. The basic structure of the crime of fraud (completed) is: the perpetrator commits the act of deception - the other party (the deceived person) produces (or continues to maintain) the wrong understanding - the other party disposes of the property based on the wrong understanding - the perpetrator or a third party acquires the property - the victim suffers property damage. [1] Thus, the use of deception to create (or continue to maintain) the wrong perception of the injured party becomes one of the constituent elements of the crime of fraud.
In private lending cases, there is a situation that is different from lending between relatives, friends, and neighbors and colleagues, that is, the so-called "professional borrowers" lend money, and their manifestations and intrinsic nature are different from ordinary private lending. This loan generally signs a standard contract, and the content of the contract is no different from the general contract on the surface, but in fact, there is a situation in which the high-interest loan behavior is covered up in a legal form, and often the purpose of the loan shown on the contract is inconsistent with the actual purpose of the loan. In fraud cases caused by such circumstances, it is necessary to synthesize the evidence of the whole case, combine the practices and social common sense in private lending cases, and carefully examine whether one party's borrowing behavior really causes the other party to have a wrong understanding and thus pay the money.
Specifically, in this case, first of all, on the question of whether defendant Wang Zhe fraudulently used the name of the company, judging from the existing witness testimony, the victim Li Kunze should have known that the defendant Wang Zhe's loan was personally used, but in the loan contract, the borrower was listed as Wang Zhe of Tianjin Port Free Trade Zone Tianxing Freight Service Co., Ltd., and affixed the special business seal of Tianxing Freight Service Co., Ltd. When Li Kunze signed the contract with Wang Zhe, there may be a situation in which the company was used as a cover to facilitate the realization of civil claims. Secondly, on the issue of secured goods. In the loan agreement signed by the two parties, it was agreed to take the goods in the warehousing contract agreement between Tianjin Port Free Trade Zone Tianxing Freight Service Co., Ltd. and Tianjin Port Huisheng Terminal Co., Ltd. as collateral, but according to the three warehousing agreements provided by Wang Zhe to Li Kunze, it can be clearly seen that the ownership of the goods does not belong to Tianjin Free Trade Zone Tianxing Freight Service Co., Ltd., let alone Wang Zhe's personal ownership, and the guarantee effect cannot be achieved, and the purpose of Providing these three agreements by Wang Zhe is more to prove that it has certain duties and powers and performance capabilities. The victim, as an adult with a normal level of cognition and common sense, made a statement that he did not know that the goods did not belong to Wang Zhe personally was obviously not in line with the common sense of life.
Third, a Chinese bank transfer cheque pledged by defendant Wang Zhe to Li Kunze did not fill in the date, issuer, line number, and capital amount, etc. According to the relevant provisions of the Bills Law, the cheque must record the unconditional payment of the entrustment, the amount determined, the name of the payer, the date of issuance, the signature of the drawer, etc., otherwise the cheque is invalid. According to the above provisions, what Wang Zhe pledged to Li Kunze was obviously a cheque with obvious major flaws, which could not achieve the mortgage effect. For the major flaws in the surface of the check, Li Kunze, as an adult who issued huge sums of money to people he was not familiar with, his statement that he did not know that the check was invalid and did not know that the check could not withdraw money was also inconsistent with social common sense.
Therefore, according to the above evidence, coupled with the judgment of social common sense, the existing evidence cannot prove that the victim has fallen into a wrong understanding based on the defendant's act of fabricating facts and concealing the truth, and thus does not meet the constituent elements of the deception in the crime of fraud that causes the other party to have a wrong understanding.
2. Reasonable determination of the subjective purpose of illegal possession
The crime of fraud requires the defendant to subjectively have the purpose of illegal possession, which is also one of the important elements to distinguish between general lending disputes and fraud crimes, and how to determine whether the defendant subjectively has the purpose of illegal possession requires judicial presumption based on the actual situation of the case and the objective behavior of the defendant. The Minutes of the National Symposium on the Trial of Financial Crime Cases of the Supreme People's Court of January 21, 2001 stipulates seven situations that can be presumed to have the purpose of illegal possession, including 1. a person who knows that he has no ability to return funds and defrauds a large amount of funds; 2. those who flee after illegally obtaining funds; 3. those who wantonly squander funds to obtain funds; 4. those who use fraudulent funds to carry out illegal and criminal activities; 5. those who withdraw, transfer funds, or hide property in order to evade the return of funds; 6. conceal or destroy accounts, or engage in false bankruptcy. 7. Other acts of illegally possessing funds and refusing to return them. The author believes that in judging the purpose of the defendant's illegal possession in a fraud case, the judgment can also be made with reference to these circumstances.
In this case, first of all, the existing evidence in the case can confirm that the defendant Wang Zhe once returned 300,000 yuan to Ma Zhihui, and the parents of the defendant Wang Zhe once returned 952,000 yuan to Zhang Dongdong on behalf of Wang Zhe. During the trial, Wang Zhe argued that Ma Zhihui was an employee of Li Kunze's company, and Zhang Dongdong also collected money owed on behalf of Li Kunze, and the two funds were actually repaid to Li Kunze. Although the testimonies of Ma Zhihui and Zhang Dongdong both claimed that Wang Zhe returned the debts owed to them and had no relationship with Li Kunze, they did not put forward any evidence of the existence of a creditor-debtor relationship between Ma Zhihui, Zhang Dongdong and Wang Zhe, and there were obvious contradictions in their testimony. In addition, the IOUs and receipts of Wang Zhe's parents' repayment to Zhang Dongdong were kept by Wang Zhe's parents and submitted to court by Wang Zhe's parents, which was obviously inconsistent with the transaction habit of receiving receipts and IOUs being kept separately by both borrowers and lenders in the general lending relationship. At the same time, combined with the fact that witness Li Huanyi appeared in court to testify that Li Kunze called him and said that "Wang Zhe also paid back a lot of money that should not be repaid", the existing evidence cannot determine that the money paid by Wang Zhe and his parents to Ma Zhihui and Zhang Dongdong has nothing to do with the loan from Li Kunze.
Secondly, when the victim Li Kunze filed a civil lawsuit with the court, he applied for pre-litigation preservation of a set of real estate in the name of defendant Wang Zhe in the name of Xingyuexuan No. 5-1-101 in Tianjin Economic and Technological Development Zone, indicating that Wang Zhe had considerable repayment ability, and the testimony of Witnesses such as Li Huanyi and Wang Baoren could prove that in the course of the relevant civil litigation, the relatives of defendant Wang Zhe and the victim had many consultations, and they all expressed that they could use the property to pay off debts and were willing to actively repay debts. However, because the amount requested by the victim far exceeded the amount of the loan contract, no agreement was reached, and when the criminal case entered the prosecution review stage, the defendant Wang Zhe's mother requested the procuratorate to preside over the mediation between the two sides, expressing her willingness to do her best to return the arrears. The above situation shows that the existing factual evidence is insufficient to confirm that Wang Zhe had the purpose and behavior of illegally possessing the victim's money.
Third, the available evidence does not prove that Wang Zhe personally squandered the loan. Defendant Wang Zhe's statement, witness Zhao Liang's testimony, and relevant documentary evidence all confirm that after defendant Wang Zhe received the loan, he used the relevant funds to return part of the arrears, and the rest of the money was withdrawn or consumed by pos machines. According to Zhao Liang's testimony, at this time the bank card was held by Zhao Liang, and it could not be determined that the relevant money or consumption was made by the defendant Wang Zhe, that is, the defendant Wang Zhe squandered the relevant money; now the evidence cannot prove the direction of the money, that is, it cannot prove that the relevant money was squandered.
Finally, with regard to the issue of the defendant Wang Zhe not repaying the loan when due, Li Kunze claiming that Wang Zhe could not be found, and the public prosecution accusing him of escaping. Defendant Wang Zhe defended in court that he had successively repaid Li Kunze more than 1 million yuan and had not left Tianjin at that time, but because Li Kunze demanded an excessively high repayment amount and restricted his personal freedom in order to recover the remaining money, he went to Anshan in March 2013 for the personal safety of his parents, and he did not know that his behavior was suspected of committing a crime during his time in Anshan, and also entrusted his mother to participate in a civil lawsuit with Li Kunze, and his behavior did not constitute escape. Based on Wang Zhe's defense and the testimony of relevant witnesses, combined with the opinions and positions of both parties in the consultation process between Wang Zhe's parents and Li Kunze, the existing evidence is insufficient to conclude that defendant Wang Zhe fled for the purpose of illegal possession.
Judging from the above evidence, the defendant Wang Zhe's series of acts during and after borrowing the loan show that he did not maliciously evade repayment and illegally possessed the money.
Third, based on the current situation of private lending disputes, criminal trial work should correctly deal with the derivative problems of lending activities to professional borrowers
According to the summed up experience of hearing private lending disputes in various localities, especially in disputes over the so-called "professional borrowers" who lend money differently from relatives, friends, and neighbors and colleagues, there are a large number of "illegal acts of covering up high-interest loans in a legal form", and the degree of organization of professional lenders is strong, and violent solicitations often occur, which is easy to cause related risks and social stability. Professional lenders often create malicious lawsuits, using the nature of judicial compulsion to achieve their illegal purposes.
In the present case, there are several case features that suggest that the case may involve high-interest loans from professional borrowers. First of all, according to the relevant information learned by the collegial panel, the victims and relevant witnesses in this case all had private lending dispute cases in the same court, and one of the witnesses, Nie Yujun, appeared in court to testify in the three civil lawsuits of the victim Li Kunze, which not only can reasonably infer the high degree of compatibility between several people, but also confirms to a certain extent the judicial characteristics of the professional lender's "high repetition rate of litigation subjects". Secondly, Li Kunze, Nie Yujun, and Liu Zhu all claimed that Li Kunze had paid Wang Zhe 280,000 yuan in cash, but the three of them did not express the key details such as the source of cash delivery, the specific time of delivery, and the delivery method, and li Kunze and Wang Zhe's 2.8 million yuan loan contract did not stipulate interest (but the witness testimony mentioned that the interest was 280,000 yuan), which is also unreasonable, combined with the behavior of pre-deduction of interest in the principal of the loan has become a practice in the private usury industry, and 280,000 yuan is likely to have been deducted in advance as interest. This is further evidence that this case may involve professional borrowers in high-interest loans. Third, through the repeated mediation between the relatives of defendant Wang Zhe and the victim Li Kunze, it can be seen that after the intervention of criminal justice, the price of the victim Li Kunze's request for the return of the arrears increased significantly. Combined with the testimony of Wang Zhe's mother, Li Huanyi, in her testimony in court that Li Kunze had escorted Wang Zhe to his parents' house to ask for money and then abducted Wang Zhe away, as well as the testimony of witness Wang Baoren that Li Kunze had demanded high unreasonable interest from Wang Zhe's family, there may be a situation in this case in which professional borrowers used illegal means to obtain debts.
Combined with the overall materials of the case file, there is a possibility of usurious lending between the defendant Wang Zhe and the victim Li Kunze, and the victim Li Kunze, as a person in the usurious lending industry, whether Wang Zhe's behavior is enough to make him fall into a wrong understanding requires careful judgment, and Li Kunze himself may have taken illegal means to obtain debts. The outcome of this case involves the question of whether judicial power, especially "the extent to which criminal justice power intervenes in private lending disputes" and "how to prevent malicious litigation", will condone private usurious lending behavior.
Therefore, based on the above analysis, based on the facts confirmed by the existing evidence, Li Kunze, the victim engaged in the relevant intermediary business behavior, still lent money to defendant Wang Zhe when he knew that the loan was a personal loan from defendant Wang Zhe, and the so-called mortgaged goods were not owned by defendant Wang Zhe, and the cheque issued by him still had obvious flaws. Under such circumstances, it cannot be found that defendant Wang Zhe had the intent to take possession illegally. There are considerable doubts in the existing evidence, the victim Li Kunze may have the possibility of usurious lending, the existing evidence cannot prove that the defendant Wang Zhe subjectively had the purpose of illegal possession in the process of borrowing, and the victim Li Kunze did not issue the loan due to the defendant's fraudulent behavior. Therefore, the public prosecution's allegation that defendant Wang Zhe constituted a fraud-type crime was insufficient.
Keywords: innocence innocence defense innocent lawyer
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