Source: Procuratorate Daily
How did the fraudulent purchase of foreign exchange involving hundreds of millions of dollars escape the "discernment" of the examiners at all levels? In just two years, how did the people involved in the case easily make illegal profits of millions of yuan? In the "one-stop" industrial chain, how can they distinguish which people constitute a crime? With this series of questions in mind, the procurator of the Yubei District Procuratorate of Chongqing Municipality has peeled back the cocoon and dug deep into the crime. Recently, Wu Chao, the procurator handling the case, talked to reporters about this case of fraudulent purchase of foreign exchange, and the truth behind the case is worrying......
Not long ago, this case was selected as a typical case of punishing foreign exchange-related crimes jointly issued by the Supreme People's Procuratorate and the State Administration of Foreign Exchange.
Tapping into "business opportunities"
Fictitious foreign trade transactions fraudulently purchased hundreds of millions of dollars in foreign exchange
In September 2013, Chongqing Qian Technology Co., Ltd. (hereinafter referred to as "Qian Company"), which is mainly engaged in foreign card acquiring, foreign exchange settlement and sales, bank card acquiring and other businesses, obtained the pilot qualification of cross-border e-commerce foreign exchange payment business of the State Administration of Foreign Exchange.
Having a payment business license means that Qian's company has become a rare "regular army" in the field of cross-border payment. However, just as the company's development entered a golden period, the company's president Wang Mouyi (handled in a separate case) "smelled" the "business opportunities" behind the business.
At the beginning of 2015, at a company business meeting, Wang Mouyi proposed a heart-warming "new way" to the management of Zheng Moudong, Zheng Moutao, Wang, Zhao Mouhua and other companies: to buy foreign exchange fraudulently for companies and individuals without real foreign trade transactions. His idea was echoed by many people, and the "make quick money" mode was launched.
But the good times didn't last long, and in June 2019, the incident happened. In the course of inspecting and investigating the foreign exchange settlement and sales business of Qian Mou, the Chongqing Foreign Exchange Administration Department of the State Administration of Foreign Exchange (now the Chongqing Branch of the State Administration of Foreign Exchange) found that the company's personnel were suspected of committing a crime in helping other companies and individuals to handle cross-border foreign exchange payment business, and transferred the clues to the Chongqing Municipal Public Security Bureau. The Chongqing Municipal Public Security Bureau handed over the case to the Yubei District Public Security Bureau for investigation, and the Yubei District Procuratorate was invited to intervene in a timely manner.
According to the existing clues, the public security organs have been able to find out the flow of funds involved in the case, the relationship chain of the people involved in the case, and the false foreign trade vouchers, and the roadmap for this huge fraudulent purchase of foreign exchange has gradually become clear.
When handling cross-border payment business, the customer of Qian must submit the application form for foreign exchange purchase and payment, the trade contract and the corresponding trade list and other necessary documents in accordance with the requirements of the company's cross-border e-commerce foreign exchange payment system. After the company conducts a strict review of the authenticity of the trade, it will transfer the above information to the cooperative commercial bank to complete the process of purchasing and paying foreign exchange.
The existence of huge profits has made Zheng Moudong, Zheng Moutao and others "trick" in the normal operation mode of foreign exchange purchase and payment business - by falsifying relevant information, and even fabricating the entire business process according to customer needs, so as to achieve the purpose of fraudulent purchase of foreign exchange.
It was found that from January 2015 to December 2016, Zheng Moudong, Zheng Moutao and others forged information and fictitious trade through the cross-border e-commerce foreign exchange payment system of Qian Mou's company, and helped 35 companies including a trading company in Wuhan and a person named Zhou to complete the business process of purchasing and paying foreign exchange without a real trade background, and fraudulently purchased hundreds of millions of dollars in foreign exchange.
In June 2020, the Yubei District Public Security Bureau transferred the case of Zheng Moudong and others to the Yubei District Procuratorate for review and prosecution.
Peel back the threads
Uncover the chain of fraudulent foreign exchange "intermediaries".
Where did the funds involved in the case flow? How did the status and role of the criminal suspect in the process of fraudulently purchasing foreign exchange be subdivided? Was the case a crime committed by a unit or a natural person? What points of personnel constituted a crime...... In the face of more than 30 case file materials, Wu Chao, the prosecutor handling the case, carefully reviewed them.
"The case involves a large number of domestic and foreign personnel, and the flow of funds is complex, and it is necessary to comprehensively collect evidence in order to accurately characterize and crack down, and re-consolidating the evidence system is the top priority!" Wu Chao believes that this case seems to be a case, but it is actually complicated.
After Wu Chao reviewed the details of the evidence, deduced the facts of the case, and simulated the construction of the evidence system, the supplementary investigation had a new direction: focusing on three aspects: finding out whether the trade was real, the role of the people involved in the case, and the flow of funds.
As a result, with the collection of various documentary evidence such as bank transaction flows, pilot documents for cross-border e-commerce foreign exchange payment business, verification results of express waybills, and WeChat chat records, as well as in-depth interrogation of multiple witnesses and accurate fixation of records, the evidence was pieced together and gathered, and finally formed a complete chain of evidence, pointing directly to the crux of the case.
"Through the collection of evidence on issues such as the foreign exchange subscription materials, the amount of money involved in the case, and illegal gains, we have further clarified the specific status and role of the persons involved in the case and the amount of crimes involved in each case. Wu Chao introduced, "It can be said that in the complex criminal system, the division of labor of this fraudulent foreign exchange team is very clear." ”
After examination, the procuratorial organs found that in the process of fraudulently purchasing foreign exchange, Wang Mouyi, Zheng Moudong, Zheng Moutao, and others were responsible for signing agreements with foreign exchange buyers who did not have real foreign trade transactions, stipulating the amount of foreign exchange purchases and handling fees; The entire process was reviewed and approved by Zheng Moudong, Zheng Moutao, and Wang.
In fact, Zheng Moudong, Zheng Moutao and others fraudulently purchased foreign exchange in all aspects, and the upstream and downstream were fought together, and the source and end were investigated together, which was also the key to the case. To this end, Wu Chao conducted a detailed verification of each node personnel based on the flow of funds of the "foreign exchange buyer→ intermediary introducer→ the criminal suspect→ the foreign exchange settlement and sales bank → overseas", and screened whether it constituted a crime.
In October 2020, the case handling team analyzed and demonstrated the case.
Combined with the evidence of the whole case, the facts that Zheng Moudong and the other four are suspected of the crime of fraudulent purchase of foreign exchange are clear. Other links in the "one-stop" criminal chain have also emerged clearly: Zhou, the actual foreign exchange fraudster, and Li Mouping, the former salesman of Qian's company, are also suspected of fraudulent purchase of foreign exchange, and 6 people, including Lu Moukun, the intermediary introducer, are suspected of illegal business operations, and the procuratorate will prosecute them in accordance with the law.
Precise accusations
Strictly punish the illegal and criminal purchase of foreign exchange
In November 2020, the Yubei District Procuratorate prosecuted Zheng Moudong and four others on suspicion of fraudulent purchase of foreign exchange. The court heard the case in open court on three occasions.
In the face of ironclad evidence, Zheng Moudong and the other 4 people and their defenders had no objections to the basic facts of the accusations, but the defenders put forward defense opinions from the characterization of the case, the amount of the crime, and the crimes committed by natural persons.
"The defendant's conduct is an act of intermediary introduction, and should be characterized as the crime of illegal business operation. ”
"If the defendant is a staff member of a unit, and the crime was committed in the name of the unit after the unit's research, it should be found that the unit committed the crime and not the natural person's crime. ”
"The amount of the crime shall not be based on the amount approved by the foreign exchange administration department, but shall be subject to the real amount of foreign exchange purchases verified by the public security organs. ”
…………
On December 14, 2020, prosecutor Wu Chao supported the prosecution in court.
In the trial, in the face of the above-mentioned defense opinions, how to accurately respond and hit the key points?
Regarding the characterization of the case, prosecutor Wu Chao is confident, "The defendant's company has the qualifications for the pilot of cross-border e-commerce foreign exchange payment business, and the defendants used the company's qualifications to conspire with others to adopt the method of fabricating facts and concealing the truth, forging cross-border goods transaction materials, and using false logistics documents to fraudulently purchase foreign exchange, and not illegally buying and selling foreign exchange outside the places prescribed by the state, which meets the criminal composition of the crime of fraudulent purchase of foreign exchange." ”
In terms of the amount of the crime, Wu Chao has already conducted a comprehensive analysis of the amount of money involved in each person involved on the basis of fully grasping the relevant evidence. Wu Chao pointed out that the administrative competent authority verified the amount involved in the case by inquiring about the records of foreign exchange settlement and sales and verifying with Qian's company, and the cross-border trade materials and logistics documents used by Zheng Moudong and others for foreign exchange settlement and sales were all forged, which could be mutually corroborated with the flow of funds for foreign exchange purchases, and the existing evidence could confirm that the amount approved by the foreign exchange management department was the amount of the crime. However, some of the testimony of the actual purchasers and other relevant evidence verified by the public security organs are a supplement to the above-mentioned evidentiary conclusions, and are not a necessary condition for determining the amount of the crime when other evidence to prove the amount of the crime is credible and sufficient.
Wu Chao conducted an objective analysis based on the defendant's confession, witness testimony, transaction details, and other evidence: "Although Zheng Moudong and others did borrow the name of the company, the criminal act was not decided by the company, and Zheng Moudong and others also had the behavior of soliciting other personnel to deliberately conceal it from their holding company. From the perspective of profit, the illegal gains were privately divided by Zheng Moudong and others, and the company did not profit from them. The conduct of Zheng Moudong and others should be found to be a crime committed by natural persons. ”
After trial, the court found that the facts of the crime charged by the public prosecution were clear, the evidence was credible and sufficient, and the charges were established, and Zheng Moudong was sentenced to six years in prison and fined 60 million yuan for the crime of fraudulent purchase of foreign exchange; Zheng Moutao was sentenced to five years and six months in prison and fined 30 million yuan; Wang was sentenced to five years and two months in prison and fined 15 million yuan; and Zhao Mouhua was sentenced to five years in prison and fined 1 million yuan. After the first-instance judgment, Zheng Moudong, Wang Mouhua, and Zhao Mouhua appealed, and the Chongqing No. 1 Intermediate People's Court ruled to reject the appeal and uphold the original judgment.
Execution linkage
A strong synergy to combat financial crime has been formed
In Wu Chao's view, on the one hand, criminal crackdowns can curb serious violations of the law and provide effective support for administrative punishments; on the other hand, administrative punishments can promptly correct illegal acts and provide clues and evidence for criminal crackdowns.
In the handling of the above-mentioned cases of fraudulent purchase of foreign exchange, the Yubei District Procuratorate has continuously strengthened the connection between execution and execution, and has realized the whole chain of crackdown on criminal offenses and administrative violations in the process of fraudulent purchase of foreign exchange.
Due to the failure to perform duties such as the review of cross-border payment business in accordance with the provisions of foreign exchange administration, the Chongqing Foreign Exchange Administration Department of the State Administration of Foreign Exchange suspended the qualification of Qian's cross-border e-commerce foreign exchange payment business pilot in accordance with the law. The purchaser of foreign exchange, a trading company in Wuhan, was fined 3.348 million yuan.
At the same time, the Yubei District Procuratorate also reached an agreement with the public security organs and foreign exchange management departments on the transfer of clues, communication and cooperation on cracking down on foreign exchange-related crimes, aiming to strengthen the crackdown on financial crimes and form a strong joint force to combat financial crimes. The procuratorial organs will also strengthen communication and cooperation with the foreign exchange administrative departments, and recommend that the foreign exchange administrative departments impose administrative penalties on units and individuals who are not suspected of committing criminal offenses but violate the relevant administrative laws and regulations.
"This case not only poses a threat to the country's financial security, but also seriously undermines the normal order of the foreign exchange market!" A few days ago, Wu Haichuan, deputy director of the Balance of Payments Division of the Chongqing Branch of the State Administration of Foreign Exchange, said, "The foreign exchange management department will earnestly strengthen the supervision of foreign exchange business, consolidate the main responsibility of banks and payment institutions with cross-border foreign exchange payment business qualifications, and further strengthen communication and cooperation with the procuratorial organs, strengthen the connection between executions and executions, and form a joint force to crack down on illegal and criminal acts such as fraudulent purchase of foreign exchange." ”
In the next step, the Yubei District Procuratorate will further strengthen the connection between execution and execution, punish all kinds of foreign exchange illegal and criminal activities in accordance with the law, and further strengthen the prosecution of financial crimes with a focus on comprehensively strengthening supervision and preventing and resolving risks, so as to provide stronger judicial guarantees for the high-quality development of the financial sector.
◆ Representative reviews
Huang Dayong, deputy to the National People's Congress and deputy manager of the project department of Chongqing Security Group stationed at Jiangbei International Airport
The power of finance is everywhere, and finance is not a colorless zone, but an innate value orientation, which is related to the core interests of a country. The reason why this case was selected as a typical case is inseparable from the practice of the procuratorial organs actively performing their duties in accordance with the law, accurately grasping the evidence and the characterization of the case, and actively participating in the comprehensive management of society, which can be said to be a good example of maintaining financial security.
In the process of handling cases of fraudulent purchase of foreign exchange, procuratorial organs should actively perform their procuratorial functions in accordance with the law, strengthen communication and coordination with the foreign exchange management departments and public security organs, and strengthen communication with the foreign exchange management departments and other regulatory agencies in the process of collecting evidence, so as to make up for the professional deficiencies of the judicial organs and improve the quality and efficiency of investigation and evidence collection and case review. It is suggested that in their future work, the procuratorial organs should find out the illegal means and modes of settlement and sale of foreign exchange, find out the flow of funds as much as possible, promptly seal, seize, and freeze the assets involved in the case, and recover illegal gains; Third, it is necessary to strengthen the connection between executions and units, and promptly consult with the State Administration of Foreign Exchange for units and individuals who are not suspected of criminal offenses, but who violate relevant administrative laws and regulations, so as to form a joint force to crack down on criminal offenses, administrative violations, and comprehensive social governance.
(Source: Procuratorate Daily, Der Spiegel Author: Zhang Bo, Yang Xiao, Zhou Ji)