01
Research and insight
Qingguang Court Judge Liu Yang's life of law lies not in logic, but in experienceIn my daily work, I am fortunate to be able to come into contact with various types of cases, combine legal facts with legal rules, and organize typed cases to guide trial practice while resolving disputes and ending disputes. In the future, I will pay more attention to research and case collation, and truly apply what I have learned.
02
The body of the case
Defendant Song committed the crime of contract fraud
—— Qualitative keywords of unauthorized transfer of real estate that has been seized by the people's court in the form of signing a house sale contract Criminal contract contract fraud illegal possession The gist of the judgment on capacity to perform is that the actor himself lacks the ability to perform the contract, and at the time of signing the contract, he clearly knew that the house had been seized by the court and could not be transferred, but still deceived the other party into collecting the victim's money, and after obtaining the money, he did not use it to return the arrears or bear the corresponding liability for breach of contract, and took the property as his own, and there was no obvious positive performance of the contract, it may be found that he had the intent to illegally take possession of others' money, constituting the crime of contract fraud. Article 224 of the Criminal Law of the People's Republic of China: Basic Facts of the Case: The People's Procuratorate of Beichen District, Tianjin Municipality, charged the defendant Song X with the crime of contract fraud and the crime of illegally disposing of seized property, and filed a public prosecution with the Beichen Court. Allegations: In October 2016, the defendant Song purchased a commercial and residential house in Beichen District for more than 610,000 yuan (the down payment of 310,000 yuan and the balance of 300,000 yuan were not paid), and in October 2017, Song was seized by a district court due to a loan dispute with others. In January 2018, knowing that the above-mentioned house had been seized by the court, Song concealed the fact that he signed a house sale contract with the victim Liu at a price of 550,000 yuan and received 300,000 yuan for the house, and then used the money for business operations and personal consumption. In January 2018, the victim Liu paid the balance of 300,000 yuan for Song's house, and when he went through the formalities for the property rights of the house, he learned that the above-mentioned house had been seized by the court. In February 2019, a district court auctioned the above-mentioned house and went through the procedures for the transfer and change of property rights. In view of the alleged facts, the public prosecution held that the defendant's conduct constituted the crime of contract fraud and the crime of illegally disposing of seized property, and recommended that he be sentenced to four to five years imprisonment and a fine for the crime of contract fraud, and that he be sentenced to six months' imprisonment for the crime of illegally disposing of seized property. Defendant Song argued that he was not aware of the fact that the house was seized and had no intention of fraud. The defense argues that the defendant did not commit a crime. A district court did not inform the property of the seizure, Song did not conceal the fact of the sale of the property, and the effective judgment documents have been performed, which did not affect normal judicial conduct, and the circumstances are not serious. Song X did not have the intention of illegal possession, and the victim did not fall into a misunderstanding, even if it constituted a crime, it was an imaginary joint crime. After the trial, it was ascertained that in October 2016, the defendant Song signed a contract for the sale and purchase of commercial housing with a real estate development company in Tianjin, and purchased a commercial and residential house located in Beichen District at a price of 613094 yuan. After Song paid the down payment, there was still a balance of 300,000 yuan unpaid. In February 2017, the house was registered in advance, and the right holder (applicant) was Song. In October 2017, the defendant Song was sued to a district court in Tianjin for having a civil dispute with others. In November 2017, the court froze 700,000 yuan in bank deposits in Song's name or seized other property of equivalent value in Song's name, and then sealed the disputed house, and later informed Song of the seizure. Defendant Song was unable to pay the balance of the disputed house and entrusted a real estate agent to sell the disputed house. The victim Li XX was a relative of the victim Liu, and Liu XX purchased the disputed house on behalf of Li XX. In January 2018, Song concealed the fact that the disputed house had been sealed by the court and signed a house sale contract and related supplementary agreements with the victim Li at a price of 550,000 yuan, and Liu transferred 300,000 yuan of Li's house purchase money to Song on the same day, and Song used the money for business and personal consumption. In January 2018, Liu, Song and others went to the sales office of the disputed house, and because Song claimed that he was unable to pay the remaining house payment, Liu paid the balance of 250,000 yuan for the purchase of the house by Li and 50,000 yuan owned by himself. Afterwards, when Song and others went through the formalities for the property rights of the house, they could not transfer the ownership because the house was seized. In February 2019, the People's Court of a district in Tianjin auctioned the above-mentioned house, and Wang Moumou, who was not involved in the case, obtained the ownership and went through the procedures for the transfer and change of the property rights of the house, and Wang Moumou later sold the house and transferred it to others. In June 2019, the defendant Song was arrested by the public security organs. After the incident, Song returned 13,000 yuan to the victim Liu. Judgment Result: The Tianjin Beichen District People's Court made a criminal verdict, ruling that: 1. The defendant Song X committed the crime of contract fraud and was sentenced to four years imprisonment and a fine of 100,000 yuan. 2. Order defendant Song X to make restitution of 550,000 yuan to victim Li XX and 37,000 yuan to victim Liu within 5 days of this judgment taking effect. After the first-instance verdict was announced, the defendant Song appealed, and the Tianjin No. 2 Intermediate People's Court issued a criminal ruling, ruling to reject the appeal and uphold the original judgment. The judgment has already taken legal effect. Reasons for the Adjudication: The effective judgment of the court held that the defendant Song, for the purpose of illegal possession, defrauded the other party of property by other means in the process of signing and performing the contract, and the amount was huge, which constituted the crime of contract fraud. The public prosecution's charge that defendant Song X committed the crime of contract fraud is convicted, and the sentencing recommendation for the crime of contract fraud is appropriate, and this court supports it. The public prosecution's accusation that defendant Song X committed the crime of illegally disposing of seized property cannot be sustained, and this court does not support it. This court modifies some of the facts that the public prosecution charged defendant Song X with committing the crime of contract fraud. This court does not accept the defense and defense opinions of defendant Song and his defender that Song did not know that the disputed house was seized and that it did not constitute a crime. Case NotesDuring the trial of this case, there were two points of dispute: first, whether the defendant Song knew that the disputed house had been sealed by the court in accordance with the law before selling, and second, whether the defendant Song's conduct constituted the two crimes charged by the public prosecution. The specific analysis is as follows: 1. On whether the defendant Song X knew the fact that the disputed house was seized before the sale As the subjective psychological attitude of the actor, knowledge in the criminal law includes two situations: one is "knowing", that is, if there is evidence to prove that the actor knew, it can be directly determined; and the other is "should have known", that is, although there is no evidence to prove that the actor "knew" subjectively, it can be presumed that he subjectively "knew" about the nature and content of the act through various acts and manifestations objectively. For example, in the case of drug crimes, it can be presumed that the perpetrator knowingly carried out the act of transporting drugs by carrying drugs in an extremely concealed manner. In judicial practice, the perpetrator of the crime of fraud often denies his knowledge, making it difficult to determine the content of his subjective intention. When presumption of "should have known", it must be based on all aspects of the material, taking into account the actor's identity, occupation, life experience, consistent performance, and other factors, to make a comprehensive analysis and scientific judgment. In this case, the defendant Song was sued to a district court because of a civil dispute with Peng Moumou, who was not involved in the case. In November 2017, the disputed house was seized by a district court, which stated that "the bank deposit of 700,000 yuan in the name of the respondent Song was frozen or other property of equivalent value under the name of the respondent Song was sealed", and Song signed the receipt of the ruling. Although the ruling did not clearly state that the disputed house had been sealed, and Song also flatly denied this at the trial, arguing that the fact that the house was seized was not clear, it could still be determined based on the evidence of the whole case. First of all, during both his criminal detention and his release on bail pending trial, defendant Song confessed that "in November 2017, he was notified to go to the court and told him that the house at issue had been sealed", stating that his confession was stable, that he was released on bail pending trial during the trial, and that he failed to put forward reasonable reasons for retracting his confession, so this part of his confession can be accepted. Second, the documentary evidence in this case can also confirm this fact, the statement of circumstances made by the public security organ in June 2019 can confirm that Song X was aware of the seizure of the house at this time, and the statement of circumstances made by a district court confirms that the court orally informed Song of the preservation of his property in accordance with the usual practice after making the preservation ruling, and the above-mentioned evidence, combined with the facts such as the defendant's eagerness to sell the disputed house, can corroborate each other, and prove that the defendant Song X "knew" about the fact that the disputed house had been sealed by the court in accordance with the law before selling the house. should have known", which can be found to be subjectively knowing. II. On Whether the Defendant Song X Constituted the Crime of Contract Fraud and the Crime of Illegally Disposing of Seized Property (1) The differences on the charges in this case have formed three opinions on the charges in this case: The first opinion is that the defendant Song X constituted the crime of contract fraud, and the amount of the crime was 600,000 yuan, but it did not constitute the crime of illegally disposing of the seized property. The available evidence can confirm that when Song sold the house, he knew that the disputed house was seized in accordance with the law, he was unable to perform the transfer obligation, and objectively did not have the ability to actually perform the contract, but still received a total of 600,000 yuan from the second victim for the purchase of the house, which was used for personal consumption or repayment of debts after the money was obtained, and did not repay the money of the outsider in accordance with the mediation agreement in the previous civil dispute to strive for the house to be released from seizure or not auctioned by the court, and in the later stage of the performance of the contract, when the victim asked him whether there was any fact of seizure, he still deliberately concealed the fact that the house was seized and asked the victim Liu to pay the remaining balance for him, so as to complete the debt repayment to the developer。 The above conduct can prove that Song X had the subjective intent to illegally take possession of the victim's money from the beginning, which is in line with the criminal composition of the crime of contract fraud. At the same time, this view holds that the defendant's above-mentioned conduct did not seriously impede the normal conduct of litigation activities or caused major losses to the interests of the state, the collective, or the people, and the value of the house was not greatly depreciated by its sale, so it should not be found to be a serious circumstance, so it does not constitute the crime of illegally disposing of seized property. Taking a step back, even if this crime is constituted, because Song defrauded the other party of money by selling the seized house, this act is an implicated offender, and it should be found as a felony as the crime of contract fraud. The second opinion is that the conviction opinion on the crime of contract fraud constituted by the defendant Song in this case is the same as the first opinion, but there are different understandings of the amount of the crime, and it should be found to be 300,000 yuan, which still does not constitute the crime of illegally disposing of seized property. The reasons are as follows: (1) Song clearly knew that the disputed house was seized and he was obliged to repay the debts to lift the court seizure. In January 2018, he concealed the seizure of the house, signed a contract with the victim Li Moumou, received 300,000 yuan, and used the money for business operations and personal consumption, which constituted the crime of contract fraud and the crime has been completed. (2) In January 2018, Song, the intermediary and Liu went to the sales office to pay the final payment, and Song informed Liu in advance that he could not pay 100,000 yuan, and Liu agreed to pay 100,000 yuan for Song in order to avoid the previous 300,000 yuan in vain, of which 50,000 yuan was converted into a loan beyond the agreement in the sales contract. In addition, Zhang Moumou and others who were present confirmed that Song mentioned in the sales office that other properties under his name had been seized, and asked whether the disputed house had been seized, and Song himself also confessed the situation. Based on a comprehensive analysis, the real estate agent, as a professional institution, should ensure that the house it sells can be delivered and transferred, but it fails to inquire about the basic situation of the property at the housing authority in advance, and is at fault in the sales contract. In addition, when Song clearly informed him that he could not afford the 100,000 yuan agreed in the supplementary agreement, Liu voluntarily agreed to pay for Song in order to avoid losses, and did not ask the housing authority to inquire about the real estate when Song proposed that the house might be seized, in which Song confessed that Liu also informed him that the property could not be seized if he had not paid the full amount. Therefore, although Song had the act of concealing the true situation, Liu and others were in an advantageous position in terms of whether the contract continued to be performed, and they should be more cautious about the risk of the previous payment, and the payment was not entirely due to Song's false statement and was voluntarily delivered, and the intermediary was at fault. In summary, the defendant's fraudulent conduct was not the direct and only cause of the victim's loss of 300,000 yuan, but combined with other factors to have an effect on the harmful result, so the subsequent payment of 300,000 yuan should not be included in the amount of the contract fraud crime. The reasons for not constituting the crime of illegally disposing of seized property are the same as above. The third opinion holds that the defendant Song X constituted the crime of illegally disposing of seized property, but did not constitute the crime of contract fraud. The reasons are as follows: First, the facts ascertained in this case cannot be conclusively and fully proved that Song had the purpose of illegal possession. (1) Song has a certain performance behavior, he handed over the key to Liu after receiving the first payment of 300,000 yuan, and handed over the house purchase contract and voucher held by him to Liu, and Liu went to the property to obtain the house key and moved in, and he cooperated with the intermediary to go through the transfer procedures at the housing authority after Liu paid the final payment; After obtaining the first tranche of 300,000 yuan, Song used 170,000 yuan of it for purchases, his mother's hospitalization expenses of 20,000 yuan, repayment of loans of 88,000 yuan, and payment of 2,000 yuan to employees. After the defendant breached the contract, he did not maliciously evade, but contacted Liu and others, and informed Liu of the news when he learned that the Hongqiao Court was about to auction the property, so that he could get the opportunity to participate in the auction and have the willingness to continue to perform the contract; (5) Judging from the performance after the case, Song did not squander the money after obtaining it, but used it for investment and to repay personal debts, nor did he flee with the money, but could always be contacted, and repaid Liu's purchase price for a total of 13,000 yuan twice after the public security organ filed the case, indicating that he was willing to repay. The criminal law shall be modest, and civil disputes shall not be resolved in accordance with the criminal law. Therefore, it cannot be determined that Song had the intention of illegal possession, and the dispute is a civil dispute, and the buyer's loss can be resolved through civil litigation. Second, defendant Song X constituted the crime of illegally disposing of seized property. Judging from the provisions of the Criminal Law, the crime of illegally disposing of sealed, seized, or frozen property is an act, and the criterion for the crime of illegally disposing of the relevant property should be whether or not the perpetrator has carried out the act of illegally disposing of the relevant property, which is a statutory constituent element, and has violated the normal judicial activities of the judicial organs. In this case, Song had already signed a house sale contract with the buyer Guo while knowing that the property had been seized by the court, and had received an advance payment, and his conduct had met all the constituent elements of the crime of illegally disposing of the seized property, and should be found to have completed the crime. (2) The defendant's conduct in this case should constitute the crime of contract fraud, and the crime of contract fraud is an important crime in Chapter 4 of the Criminal Law, "Crimes of Undermining the Socialist Market Order", and its protection of legal interests is the market transaction order and public and private property rights in the form of contracts, of which the market transaction order is the main protection of legal interests, and the rights of public and private property are secondary legal interests, which can also be regarded as an objective consequence of the protection of contract order. In order to accurately determine this crime, on the one hand, it is necessary to correctly grasp whether the perpetrator has the purpose of illegal possession, which is the standard for distinguishing between crime and non-crime, and is also the key to distinguishing the crime of contract fraud from civil disputes. At present, the principles of defining "the purpose of illegal possession" in the crime of contract fraud in the theoretical circles and practical departments are mainly summarized as follows: :(1) whether the actor has the conditions to sign and perform the contract, and whether he has created false conditions; ;(2) whether the actor has the ability to perform the contract when signing and performing the contract; ;(3) whether the actor has performed the contract in the process of signing and performing the contract; (4) whether the actor has disposed of the acquired property, and whether the actor has misappropriated, squandered, and absconded with the money. On the other hand, it is necessary to accurately grasp the nature of the contract in the crime of contract fraud, and the contract in the crime of contract fraud should be limited to economic contracts, and fraud should be carried out in economic activities. The author agrees with the first point of view, holding that the defendant Song X constituted the crime of contract fraud. The crime of contract fraud is a purpose crime, which requires the perpetrator to have the purpose of illegal possession, that is, the intention to permanently and illegally possess and control the property of others. However, "illegal possession" is a typical subjective psychological state, and if the person does not indicate it, it is difficult for outsiders to know, and to judge whether there is a "purpose of illegal possession", it is necessary to combine the external objective behavior, whether the actor has the actual ability to perform the contract at the time of signing the contract, the purpose and destination of the subject matter of the contract and the payment for the goods, and whether the actor has actively performed the contract, so as to grasp the subjective cognitive process of the actor from the facts of the entire case, and finally form an inner judgment and conviction. In judicial practice, the actor's intent to illegally occupy in the crime of contract fraud is manifested in various forms in terms of the time of its formation and the content of its intention, so it is necessary to closely combine the facts of the case and adhere to the consistency of subjectivity and objectivity when making specific judgments, and it is not possible to conclude the case solely on the basis of the defendant's confession, nor can it be presumed that the defendant has the purpose of illegal possession simply because the defendant has committed fraud in the process of signing and performing the contract or the property cannot be returned. Attention should be paid to making a comprehensive judgment from the following aspects: 1. Whether the actor has the actual ability to perform the contract. The actual performance capacity refers to the actual ability of the parties to the contract to perform the contract and the realistic possibility of completing the transaction in accordance with the contract and achieving the purpose of the contract. The ability to perform the contract does not preclude the perpetrator's purpose of unlawful possession of another person's property, but if there is no capacity or possibility to perform the contract, it is generally presumed that he has the purpose of unlawful possession. The actor shall be deemed to have the actual ability to perform the contract in the following circumstances: (1) at the time of signing the contract, it already has the necessary capital, material or technical strength to perform the contract. (2) Although the contract is not capable of performing at the time of signing, it is able to raise funds and goods necessary for the performance of the contract within the performance period of the contract. (3) Even if the obligations cannot be actually performed in accordance with the contract, the actor or others can provide sufficient guarantees (including performance on behalf of the actor and compensation for losses). 2. Whether the actor has actively performed the contract. The performance of the contract refers to the full and appropriate performance of the obligations of the contract by the party with the obligation to perform the contract in accordance with the provisions of the contract or the provisions of the law, so that the purpose of the contract can be successfully realized by the other party. After the contract is signed, whether the parties have made active efforts to perform the contract is often one of the bases for determining whether the actor subjectively has the intent to defraud. Even if the actor has the ability to actually perform the contract, it should be presumed that he has the purpose of illegal possession if he does not actively raise funds, contact business, etc., and makes various preparations and efforts for the performance of the contract, but conceals, evades, or shirks the responsibility of the contract under various pretexts. 3. The disposition of the purchase price. Property disposal is an important power of property ownership, and although the disposition of the subject matter by the parties to the contract is not the only criterion for judging that the parties have the intent to defraud, it is indeed an important basis, reflecting the subjective state of mind of the actor to a certain extent. In the normal course of contract performance, after the actor obtains the property, it will generally use the property for the performance of the contract or legal business. However, because the perpetrator of contract fraud has the intention of illegally taking possession of other people's property, once he obtains control of other people's property, he often uses the property for illegal activities, or squanders or repays personal debts. 4. Whether the actor has shown responsibility after the breach of contract. According to the 2001 Minutes of the National Symposium on the Trial of Financial Crime Cases by Courts, "fraudulently obtaining a large amount of funds knowing that there is no ability to return them" can be determined that the perpetrator has the intention of illegal possession, and the defendant's act of repaying part of the money cannot conceal the purpose of illegal possession of the remaining funds. Generally speaking, a person with good faith in performing a contract will not evade liability when he finds that he is in breach of contract or is pointed out by the other party as breaching, although he may excuse himself and delay to a certain extent to reduce his liability from his own interests. However, because the person who uses the contract to commit fraud, because he knows that he cannot perform the contract at all or cannot perform the contract in full, and does not have the sincerity to perform the contract at all, after the dispute occurs, the actor will often try to evade responsibility, so that the other party cannot recover the losses suffered. To sum up, Song had no actual ability to perform when he sold the house, he knew that the house had been seized by the court and could not be transferred when he signed the contract, and he was unable to perform his contractual obligations but still received money from the victim, and after obtaining the money, he did not use it to return the arrears or bear the corresponding liability for breach of contract, nor did he use it for legal business, but used it for personal consumption or repayment of debts, and did not repay the money in accordance with the mediation agreement to strive for the house to be released from seizure or auction by the court, and deliberately concealed the facts to let the victim pay the remaining balance for him to complete the debt repayment to the developerDuring the investigation stage, Song also made several confessions of guilt, and his confession was stable and corroborated with relevant documentary evidence, victim statements, and witness testimony, all of which can be determined that Song had the intention of illegally taking possession of other people's money. At the same time, the house sale and purchase agreement between the two parties is a contractual act, and the defendant does not have the ability and behavior to perform the contract, regardless of the defendant's behavior before and after the signing of the contract or the reasons for not performing the contract, so his conduct constitutes the crime of contract fraud. On issues such as whether the victim's subsequent losses of 300,000 yuan should be included in the amount of the crime, and issues such as the time when the fraud was intentionally generated, a comprehensive judgment should be made on the premise of adhering to the principle of unification of subjectivity and objectivity, and in conjunction with various subjective and objective factors before, during, and after the perpetrator. From the ascertained facts, it can be seen that Song had the intention of contract fraud before signing the contract, and after premeditation and planning, he used the method of concealing the truth to achieve the goal of defrauding the victim of money. This kind of intentional is intentional in advance, which is highly deceptive and hidden, and the contract fraud that is subject to control is planned, step-by-step, and integral. The fault of the real estate agent in the transaction process and Liu's dominant position in the continued performance of the contract are only the criteria for judging the assumption of contractual liability in civil law, and are not independent and abnormal intervening factors in the sense of criminal law, and are not enough to interrupt the causal relationship between the fraud and the victim's economic losses. The amount of the fraud should be determined to include the subsequent payment of 300,000 yuan. (3) Based on a comprehensive analysis of whether defendant Song X constituted the crime of illegally disposing of seized property, the author believes that defendant Song X did not constitute the crime of illegally disposing of seized property. First of all, from the perspective of the constitutive elements, the criminal purpose of the crime of illegally disposing of seized property is to disrupt the normal order of the judicial organs' activities, and in this case, although Song X illegally sold the property that had been seized by the court without authorization, the subjective purpose of the investigation was to defraud the defendant of money, and the sale of the seized property was a means of fraud and an act of implication, even if this crime was constituted, because Song's act of defrauding the other party of money by selling the seized house was an implicated offender, and a felony should be selected to be found as the crime of contract fraud. Second, judging from the circumstances of the crime, the defendant Song X deliberately concealed the truth about the fact that the court sealed the house in his name, and defrauded the victim's property by signing a house sales contract, and then the district court auctioned the house in accordance with the content of the mediation document and transferred the property to the buyer, and his conduct did not seriously impede the normal conduct of litigation activities or caused major losses to the interests of the state, the collective, or the people, and the value of the house was not greatly depreciated by the sale, so it should not be found to be a serious circumstance, so it does not constitute the crime of illegally disposing of the seized property.
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Contributed by: Qingguang Court