People's Court Case Database: Determination of Indirect Principal Offender (Xu's Fraud Case)

Xu's fraud case

-- The portion of the perpetrator's additional profits that exceed the scope of the indirect principal offender's intent, shall not be included in the indirect correction

The amount of the crime committed

Keywords: criminal fraud indirect principal offender perpetrator scope of instruction excessive amount of crime

Basic facts of the case

Between August and September 2016, defendant Xu, for the purpose of illegal possession, falsely claimed to Zhang, a student of a college in Shaanxi, that he knew the staff of the college's finance office, and that he could pay and reduce half of the tuition fees for the students, and that Zhang would be given a commission of 500 yuan for each student who paid the fee through this channel. Zhang believed that it was true, and through the school students Lu, Zheng and others, he publicized and actually collected a total of 313,780 yuan from the tuition fees of 38 students from the above schools. In order to make additional profits, Zhang and others claimed to the students that they could charge the tuition at a 6% discount and hand it over to Xu at a 5% discount, so they charged the students a discount on the tuition fees, making a total profit of 89,980 yuan, and this part of the money was privately divided by Zhang, Lu, Zheng and others. Zhang and others transferred the rest of the tuition fee of 223,800 yuan to Xu. After receiving the payment, Xu paid a commission of 17,500 yuan to Zhang, and issued a forged tuition receipt to the paying student. On October 17, 2016, Xu voluntarily surrendered to the Qindu Branch of the Xianyang Municipal Public Security Bureau. After the case, Xu, Zhang, Lu and others returned a total of 152,580 yuan of illegal gains.

On August 15, 2017, the Qindu District People's Court of Xianyang City, Shaanxi Province, rendered the (2017) Shaanxi 0402 Xingchu No. 149 Criminal Judgment: Defendant Xu committed fraud and was sentenced to five years imprisonment and a fine of RMB 20,000. After the verdict was announced, the defendant did not file an appeal, and the public prosecution did not raise a protest, and the judgment has taken legal effect

Grounds for the Trial

The effective judgment of the court held that the defendant Xu had fabricated facts for the purpose of illegal possession and defrauded others of 223,800 yuan of property, a huge amount, and his behavior had constituted the crime of fraud. As for the 89,980 yuan that Zhang, Lu and others collected on their own and took it as their own, it was an act taken by Zhang and others alone with the intention of making additional profits, beyond Xu's instructions, Xu did not know about it, and did not receive the money, and the conduct of Zhang and others was an excessive limit, and the money should not be included in the amount of Xu's fraud crime. Defendant Xu X voluntarily returned to the case after committing the crime and truthfully confessed his crime, constituting voluntary surrender and a lighter punishment in accordance with law. After the case, Xu actively returned the stolen goods and made restitution, and was given a lighter punishment as appropriate. The judgment was accordingly rendered.

Summary of the trial

The offender does not personally carry out the act of committing the crime, but pretends to be the hand of another person, that is, through coercion or deception, to dominate or use others to carry out certain acts, so as to achieve the purpose of the crime, and constitutes an indirect principal offender. The indirect principal offender bears criminal responsibility for the criminal consequences caused by the perpetrator's acts. However, in the case of an indirect principal offense, the perpetrator of an act that exceeds the instruction of the indirect principal offender constitutes an act of transgression. According to the principle of consistency between subjectivity and objectivity, when the perpetrator of the controlled use commits a specific act, the additional profit that exceeds the scope of the indirect principal offender's instruction should not be included in the amount of the indirect principal offender's crime.

Associate indexes

Articles 52, 53, 64, 67 and 266 of the Criminal Law of the People's Republic of China

First instance: Criminal Judgment of Qindu District People's Court of Xianyang City, Shaanxi Province (2017) Shaanxi 0402 Xingchu No. 149

(15 August 2017)

Qindu District People's Court of Xianyang City

Criminal verdicts

(2017) Shaanxi 0402 Xingchu No. 149

Public prosecution organ: Xianyang City Qindu District People's Procuratorate.

Defendant Xu Wenbin, male, born on March 22, 1994, Han ethnicity, college education, self-employed, living in Ledu County, Qinghai Province. He was criminally detained on October 17, 2016, and arrested on November 14, 2016, and is currently detained at the Qindu District Detention Center in Xianyang City.

Defender: Zhang Cheng, lawyer of Shaanxi Weiyang Law Firm.

On May 8, 2017, the People's Procuratorate of Qindu District, Xianyang City, charged the defendant Xu Wenbin with the crime of fraud in the Xianqin Procuratorate Criminal Prosecution (2017) No. 142 indictment. After this court accepted the case, it formed a collegial panel in accordance with law, applied the summary procedures, and then changed to ordinary procedures, and tried the case in open court on May 18, May 31, and August 9, 2017. The People's Procuratorate of Qindu District, Xianyang City, appointed procurators Mao Ni and Yang Tao to appear in court in accordance with the law to support the prosecution, and the defendant Xu Wenbin and defender Zhang Cheng appeared in court to participate in the proceedings. The trial has now been concluded.

The People's Procuratorate of Qindu District, Xianyang City, alleged: Between August and September 2016, the defendant Xu Wenbin falsely claimed that he knew the staff of the Finance Department of Shaanxi International Business College and Shaanxi Institute of Fashion Technology, and that he could pay or exempt part of the tuition fees for students, issued forged tuition fee bills, and defrauded 38 students of the above-mentioned schools of 313,780 yuan in cash. (153,580 yuan has been recovered)

At about 19:00 on October 17, 2016, defendant Xu Wenbin voluntarily surrendered to the Qindu Branch of the Xianyang City Public Security Bureau.

The public prosecution believes that the defendant Xu Wenbin, for the purpose of illegal possession, defrauded others of 313,780 yuan of property by fabricating facts, a huge amount, and that his conduct violated Article 266 of the Criminal Law of the People's Republic of China, and that he should be investigated for criminal responsibility for the crime of fraud. Submit it to this court for sentencing in accordance with law.

Defendant Xu Wenbin voluntarily pleaded guilty in court, arguing that he only received more than 210,000 yuan in tuition from Zhang, not the 313,780 yuan charged in the indictment. One of the 10,000 yuan received was a personal debt returned by Zhang, not a tuition fee.

The defence argues that there is no objection to the charges in the indictment. Defendant Xu Wenbin received a total of 223,800 yuan through Zhang, not 313,780 yuan. Xu Wenbin explained to Zhang that he could pay half of the 10,000 yuan tuition, but Zhang decided to add the amount on the basis of this half, which exceeded Xu Wenbin's criminal expectations, and Xu Wenbin should not be held responsible. Moreover, 10,000 yuan of the 223,800 yuan belongs to the loan owed by Zhang to Xu Wenbin, not the amount of the crime. Xu Wenbin refunded part of the tuition fees of the deceived students before the case, and only had the purpose of illegally occupying 160,200 yuan. Xu Wenbin surrendered after committing a crime, and his punishment may be commuted.

After the trial, it was ascertained that between August and September 2016, in order to seek illegal economic benefits, the defendant Xu Wenbin lied to Zhang (a student of Shaanxi International Business College) that he knew the staff of the Finance Department of Shaanxi International Business College and Shaanxi Institute of Fashion Technology, and that he could pay and reduce part of the tuition fees for the students, and each student could give Zhang a commission of 500 yuan after paying the fee. Zhang's belief was true, and through Lu, Zheng, Liu, He, and others to contact classmates to pay fees, and collected 313,780 yuan from the tuition fees of 38 students from the above-mentioned schools, and after making a profit of 89,980 yuan from the tuition fees, Zhang transferred the remaining tuition fees of 223,800 yuan to the defendant Xu Wenbin. After receiving the payment, the defendant Xu Wenbin paid a commission of 17,500 yuan to Zhang, and issued a forged tuition fee bill to the paying students. On October 17, 2016, defendant Xu Wenbin voluntarily surrendered to the Qindu Branch of the Xianyang Municipal Public Security Bureau.

After the case occurred, the defendant Xu Wenbin returned 46,100 yuan to Zhang, and Zhang returned 61,000 yuan to the victim Yang XX and 7 other students. Xu Wenbin returned 20,000 yuan in the case, Zhang returned 61,900 yuan in the case, Lu returned 4,600 yuan in the case, Liu returned 20,900 yuan in the case, and Zheng returned 5,180 yuan in the case, totaling 112,580 yuan.

The above basic facts are supported by documentary evidence issued by the public prosecutor in court, the student's payment invoice, the testimony of the witness Zhang, the Xianyang City Public Security Judicial Appraisal Center's printed appraisal opinion, the victim's statement, and other evidence, which is sufficient to determine.

This court believes that the defendant Xu Wenbin, for the purpose of illegal possession, fabricated facts and defrauded others of 223,800 yuan of property, a huge amount, and his conduct has constituted the crime of fraud, and the public prosecution is guilty of the charge. Defendant Xu Wenbin voluntarily returned to the case after committing the crime and truthfully confessed his crime, which is voluntary surrender and is to be given a lighter punishment in accordance with law. After the case was discovered, the defendant Xu Wenbin returned 66,100 yuan of stolen goods, and was given a lighter punishment as appropriate.

With regard to the defense opinion of the defendant Xu Wenbin that one of the 10,000 yuan of the money he received from Zhang was a personal debt returned by Zhang and not a tuition fee, and the defense opinion put forward by the defender that 10,000 yuan of the 223,800 yuan received by Xu Wenbin through Zhang belonged to a loan owed by Zhang to Xu Wenbin and was not the amount of the crime, upon investigation, at about 19:00 on September 12, 2016, Zhang transferred 9,500 yuan to Xu Wenbin through WeChat transfer. Witness Zhang's testimony shows that the defendant Xu Wenbin instructed him to collect the victim's tuition. Defendant Xu Wenbin's confession proves that the 223,800 yuan transferred by Zhang to him was to defraud the victim's tuition fees, and the two can corroborate each other. The amount is the criminal proceeds of defendant Xu Wenbin and should be included in the amount of Xu Wenbin's crime. Therefore, his defense and defense opinions cannot be sustained, and this court does not accept them.

With regard to the defense opinion put forward by the defendant Xu Wenbin that he only received more than 210,000 yuan in tuition from Zhang, not the 313,780 yuan charged in the prosecution, and the defense opinion put forward by the defender that the defendant Xu Wenbin received a total of 223,800 yuan through Zhang and not 313,780 yuan, after investigation, the defendant Xu Wenbin, in order to seek illegal economic benefits, lied to Zhang that he knew Shaanxi International Business and Trade College, The staff of the Finance Department of Shaanxi Institute of Fashion Technology can pay and reduce part of the tuition fees for students, and each student can give Zhang a commission of 500 yuan after paying the fee. Zhang believed that it was true, and collected 313,780 yuan in tuition fees from 38 students through Lu, Zheng, Liu, He and others, of which Zhang and others added 89,980 yuan in tuition fees and took it as their own, and then Zhang transferred the remaining 223,800 yuan in tuition fees to defendant Xu Wenbin. Zhang and others charged the victim an additional tuition fee of 89,980 yuan for profit and kept it for themselves, and did not hand over the money to the defendant Xu Wenbin, which is an excessive limit. The available evidence cannot prove that defendant Xu Wenbin had the purpose of illegally taking possession of the money, and should not be included in the amount of defendant Xu Wenbin's crime. The amount of the crime should be calculated based on the tuition fees actually received by the defendant Xu Wenbin. Therefore, his arguments and defense opinions were sustained, and this court adopted them.

With regard to the defender's defense opinion that Xu Wenbin refunded part of the tuition fees of the deceived students before the case and only had the purpose of illegally possessing 160,200 yuan, upon investigation, it was found that the defendant Xu Wenbin defrauded the victim of 223,800 yuan for the purpose of illegal possession, which is a completed crime. As for the return of part of the victim's tuition fees after the crime was discovered, it is an act of returning stolen goods, and does not affect the determination of the amount of the crime completed. Therefore, his defense opinion cannot be sustained, and this court does not adopt it.

In summary, in accordance with the provisions of Articles 266, 52, 53, 64, and 67 Paragraphs 1 and 2 of the Criminal Law of the People's Republic of China, the judgment is as follows:

1. Defendant Xu Wenbin committed the crime of fraud and was sentenced to five years imprisonment and a fine of 20,000 yuan.

(The term of imprisonment is calculated from the date of execution of the sentence.) Where a person is detained before the judgment is enforced, the sentence is to be reduced by one day for each day of detention, that is, from October 17, 2016 to October 16, 2021. The fine shall be paid within 10 days from the effective date of this judgment. ）

The defendant Xu Wenbin was ordered to make restitution of 140,200 yuan for economic losses to the 31 victims in this case. (See list for details)

3. The 112,580 yuan of unlawful gains seized in the case are to be returned to the 31 victims in this case in accordance with law. (See list for details)

If they are not satisfied with this judgment, they may appeal through this court or directly to the Intermediate People's Court of Xianyang City, Shaanxi Province within 10 days from the second day of receiving the judgment. Where an appeal is made in writing, one original and three copies of the appeal petition shall be submitted.

Presiding Judge: Shang Junfeng

People's Assessor Wei Mingli

People's Assessor Wang Min

August 15, 2017

Clerk: Dai Shaofeng

Second, the main issues

In the case of indirect principal offenses, does the act carried out by the perpetrator in excess of the instruction of the indirect principal offender constitute an act that exceeds the limit of the commission of the act?

III. Grounds for the Trial

This case involves the issue of the distinction of responsibility between the defendant Xu Wenbin, the initiator of the crime of fraud, and Zhang, Lu, and others who specifically committed the fraud, because there is a special circumstance that Zhang, Lu, and others made additional profits beyond the scope of Xu Wenbin's instructions when they specifically carried out their acts, making it the key to correctly handle this case to accurately determine the nature and criminal responsibility of Xu Wenbin, Zhang, Lu, and others.

(1) Defendant Xu Wenbin constituted an indirect principal offender of the crime of fraud, and Zhang, Lu, and others did not constitute a crime

Indirect principal offenders, also known as indirect perpetrators, refer to the fact that the offender does not personally carry out the act of committing the crime, but pretends to use the hands of others, that is, through coercion or deception, to dominate or use others to carry out certain acts, so as to achieve the purpose of the crime. The indirect principal offender does not appear at the scene of the crime and does not participate in the commission of a specific criminal act, but is the manipulator and dominator behind the scenes, and in the case that the perpetrator of the specific act does not bear criminal responsibility, the indirect principal offender bears criminal responsibility for the criminal consequences caused by the perpetrator's conduct. The main forms of indirect principal offenders include: (1) using a person who has no criminal intent (negligent or unknowing) to commit a crime, such as doctor A who wants to kill patient C, gives the poison needle to nurse B, who is not aware of it, and B injects C and causes C's death; (2) Exploiting a person who lacks the capacity for criminal responsibility to commit a crime. In the case of the use of a person who has not yet reached the age of criminal responsibility or a mentally ill person to commit a crime, in the case of the use of a person who has not yet reached the age of criminal responsibility to commit a crime, there is an overlap between the indirect principal offender and the instigator.

In this case, the defendant Xu Wenbin lied to Zhang, a student of Shaanxi International Business College, that he had the ability to help the student pay and reduce half of the tuition fees, and won Zhang's trust; Zhang also gathered Lu, Zheng and other students to publicize in the school, and Zhang, Lu, Zheng and others actually collected more than 310,000 yuan from 38 students. Throughout the course of the crime, Zhang, Lu and others were unaware of Xu Wenbin's deliberate attempt to fabricate facts and conceal the truth, and were actually used and manipulated by Xu Wenbin, acting as a tool for Xu Wenbin to carry out the fraud. Therefore, Zhang, Lu and others' specific acts of collecting tuition fees are acts without criminal intent, and do not constitute a joint offender of Xu Wenbin's crime of fraud, and Xu Wenbin alone constitutes the crime of fraud.

Different from ordinary indirect principal offenders, in this case, Zhang, Lu, and others "increased" on the basis of the defendant Xu Wenbin's claim that half of the tuition fees could be waived, claiming to the students that the tuition fees were collected at a rate of about 6% off, so they overcharged some of the money, and the excess was privately divided by Zhang, Lu, and others. There are two points of view on how to evaluate the circumstance that Zhang, Lu and others made additional profits beyond the scope of Xu Wenbin's instructions when they specifically carried out their acts:

The first view is that the acts of Zhang, Lu and others were separate acts of fraud, on the grounds that Zhang, Lu and others believed that the "facts" were true that they could help students reduce or reduce half of the tuition fees, but for the purpose of making profits, they falsely claimed that the students were charged tuition fees at a 6% discount, which constituted "fabricating facts and concealing the truth" under the Criminal Law; The second view is that the acts of Zhang, Lu and others are unjust enrichment and do not constitute a crime.

We agree with the second view. Zhang, Lu, and others were deceived by defendant Xu Wenbin, and believed that Xu Wenbin's statement that he could reduce or reduce tuition fees, and that Zhang, Lu, and others did not have the subjective intention to defraud others, which is the basis for the establishment of indirect principal offenders in this case. On this basis, Zhang, Lu and others are greedy for benefits, and in addition to the rebate promised by Xu Wenbin, they also thought that they could "increase" the tuition fee to the students, even if it is a six-fold price to charge tuition, it is still very attractive for students, as long as Xu Wenbin finally completes the matter with half of the tuition fee, then there is no problem with the difference between Zhang, Lu and others. This kind of behavior is similar to the speculation of house tickets by the related households of some real estate developers, such as transferring the 20% discount given from the real estate developer to the purchaser at a 9% discount to earn the price difference, such behavior is illegal or non-compliant, but subjectively there is no intention to defraud, and objectively it does not meet the elements of the crime of fraud, and does not constitute a crime.

(2) Defendant Xu Wenbin should not bear criminal responsibility for the crime of fraud for the amount of excess profits made by Zhang, Lu, and others, and there is also an excessive limit of conduct among the indirect principal offenders

Typical excesses exist in ordinary joint crimes, which generally refer to joint crimes in which some of the joint offenders carry out acts beyond the scope of the original jointly agreed criminal intention. Joint criminality requires that the co-offenders have common intent and have a common understanding and will of the nature of the act and the harmful consequences that may be caused. According to the principle of consistency between subjectivity and objectivity and the principle of responsibility, the perpetrator who commits an act that exceeds the limit bears responsibility for the part of the act that exceeds the limit, and other joint offenders who do not have common intent should not bear criminal responsibility for this. For example, A and B negotiate to rob C's property together, and the two enter C's house to take control of C's house and search for the property separately, but B not only steals the property, but also rapes C's wife. B's rape clearly exceeded the scope of A and B's common intent, and A should be responsible for all property seized by A and B, but not B's rape.

Indirect recidivism is a special and complex form of crime. Based on the provisions of the mainland criminal law, "joint crime refers to the joint intentional crime committed by two or more persons", the indirect principal offender is not a joint crime, so it has always been treated as a crime committed by a single person, and the criminal responsibility of the individual is investigated. However, because there are both the perpetrator of the crime of dominating and using others and the perpetrator of the controlled and exploiting of others, it is of course possible that the perpetrator may act beyond the scope of his instructions. Moreover, the imposition of an act limit is not limited to the nature of the act but also includes the amount of the limit. If A expressly instructs a 13-year-old child B to go to C's house to steal the gold and silver jewellery that C keeps in the closet, but B goes to C's house to obtain the gold and silver jewellery and then takes C's wallet and takes possession of the wallet alone, and A is not aware of this, B does not commit theft in respect of either the gold and silver jewellery or the wallet because he has not reached the age of criminal responsibility, and A should not be liable for the wallet obtained by B beyond the scope of the authorization. Of course, if A's instruction is generalized intent, then even if B steals an additional amount behind A's back, it does not exceed the scope of A's intention, and A should still be responsible even if he is unaware.

In this case, the public prosecution believes that the defendant Xu Wenbin took advantage of the actions of Zhang, Lu and others to commit fraud, and the act ultimately caused the victim to be defrauded of more than 310,000 yuan, although Zhang, Lu and others only handed over more than 200,000 yuan to Xu Wenbin, but because Zhang, Lu and others did not constitute a crime, Xu Wenbin alone constituted the crime of fraud, and the result of being defrauded of more than 310,000 yuan was caused by Xu Wenbin, so the amount of Xu Wenbin's fraud should be more than 310,000 yuan. Based on the above analysis, we believe that Xu Wenbin in this case is an indirect principal offender of the crime of fraud, and Zhang, Lu and others are the perpetrators, and Zhang, Lu and others alone "add weight" to the additional profits beyond the scope of Xu Wenbin's instructions, and the more than 80,000 yuan overcharged was not handed over to Xu Wenbin, Xu Wenbin had no knowledge of this, and this case belongs to the situation where the amount of money in the implementation of the limit is excessive. According to the principle of consistency between subjectivity and objectivity, Xu Wenbin should not bear criminal responsibility for the 80,000 yuan obtained by Zhang, Lu and others beyond the scope of their instructions.

In summary, the original trial court was correct in not pursuing criminal responsibility for the acts of Zhang, Lu and others, and did not include the part of the additional profits made by Zhang, Lu and others in the amount of defendant Xu Wenbin's fraud crime.

(Written by: Zeng Dongfang, Fourth Criminal Division of the Supreme People's Court.)

Qindu District Court, Xianyang City, Shaanxi Province, Shang Junfeng, Editor: Lu Jianhong, Criminal Fourth Division of the Supreme People's Court)