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Summary of the gist of the first batch of people's courts' case database "the crime of offering bribes by units".

author:Shanxi Taiyuan Chang lawyer

Summary of the gist of the first batch of people's courts' case database "the crime of offering bribes by units".

Source: People's Court Case Database

Finishing: Cheng Xiaolu

Summary of the gist of the first batch of people's courts' case database "the crime of offering bribes by units".

1. Case of bribery by Ma XX and other units -- determination of the nature of the bribery carried out by the person in charge of the unit

Warehousing number: 2023-03-1-411-001

Trial court: Tianjin Xiqing District People's Court

Case No.: (2016) Jin 0111 Xingchu No. 93

Keywords: criminal unit bribery crime unit person in charge of bribery

Basic facts of the case

After the trial, it was ascertained that a certain group limited company in Tianjin was a state-owned company. From March 2013 to August 2015, Mr. Wang served as the general manager of the third construction management center of the company, responsible for the overall work of the third construction management center and specifically handling the construction of Tianjin Metro Line 6. Between May and September 2013, Wang Moumou took advantage of his position to accept the request of the defendant Ma Moumou and contacted Wang, the director of a pipe factory in Tianjin, to take care of Ma Moumou in terms of project undertaking. In the absence of engineering qualifications, Hou Ma Moumou paid to use the engineering qualifications of a construction company in Tianjin to sign a subcontract with a pipe factory in Tianjin, and contracted the steel structure installation project of the West Hotel Road Station of the second contract section of the Engineering and Cultural Center of Tianjin Metro Line 5 and 6, and the first bid project of the Engineering and Cultural Center of Tianjin Metro Line 6. In April 2014, Wang Moumou asked Ma Moumou for a benefit fee of 250,000 yuan, and then Ma Moumou remitted 250,000 yuan to the account designated by Wang Moumou by transfer in order to thank Wang Moumou for his help. The business scope of a company in Tianjin is the recycling of recycled materials.

  On September 23, 2016, the Tianjin Xiqing District People's Court rendered the (2016) Jin 0111 Xingchu No. 93 Criminal Judgment: 1. The defendant Ma Moumou committed the crime of offering bribes and was sentenced to one year and two months imprisonment, suspended for two years, and fined RMB 100,000. 2. The defendant unit, a company in Tianjin, is not guilty. After the verdict was announced, the procuratorate did not raise a protest, and the defendant did not file an appeal, and the judgment has taken legal effect.

Grounds for the Trial

The effective judgment of the court held that the facts of the public prosecution's accusation of Ma Moumou's crime were clear, and the evidence was credible and sufficient, but it was improper to accuse a certain company in Tianjin and Ma Moumou of committing the crime of offering bribes by a unit. After investigation, the business scope of a company in Tianjin is the recycling of renewable materials, and there is no business relationship with the project contract obtained by Ma Moumou due to bribery. In addition, judging from the facts ascertained in this case, Ma Moumou did not use the resources of a certain company in Tianjin to carry out the construction, but separately organized migrant workers to carry out the construction, so from the contracting of the project to the receipt of the project payment and the bribery to Wang Moumou, it was Ma Moumou's personal behavior, and the evidence in this case does not show that Ma Moumou acted for a certain company in Tianjin. In addition, there is no relevant evidence in this case to prove that the benefits obtained by Ma Moumou for the project contract and the expenses used for bribery are attributed to or derived from the funds of a company in Tianjin. Ma's conduct meets the constitutive elements of the crime of offering bribes as provided for in the Criminal Law, and should be investigated for criminal responsibility for the crime of offering bribes.

Summary of the trial

1. Attention shall be paid to distinguishing between unit bribery and individual bribery carried out by the person in charge of a unit. Whether the bribe money comes from an entity or an individual is not the key factor in distinguishing between a unit or an individual. The key to distinguishing between the two depends on whether the bribery reflects the will of the unit or the individual, and whether the benefits sought belong to the unit or the individual.

2. To determine whether the bribery carried out by the person in charge of the unit represents the will of the unit, attention should be paid to examining whether the benefits obtained through bribery are related to the business of the unit, and if the benefits obtained are not related to the business of the unit, it cannot be determined to represent the will of the unit.

3. For acts of bribery carried out by the responsible person of a unit, the key to judging the attribution of the benefits sought is to see whether the unit or the individual has the right to dispose of the interests, and attention should be paid to distinguishing between situations in which the benefits are distributed to the individual after the benefits are vested in the unit, and the individual uses the unlawful gains for the unit's expenses after the benefits are vested in the individual. Where unlawful gains are credited to a unit's account, and the unit gives a certain reward to the responsible person of the unit in accordance with the reward policy, it shall be found to be owned by the unit. Where unlawful gains are transferred into an individual's account, and the individual is handed over to the unit in full, or wages or bonuses owed by the unit are deducted, it shall be found to be owned by the unit. Where after the unlawful gains are attributed to the individual, the individual invests the unlawful gains into the unit, it shall be deemed that the unlawful gains belong to the individual.

II. Case of Miao XX's fraud and bribery by a unit -- Offering bribes for the benefit of the unit constitutes the crime of offering bribes by a unit, and at the same time constitutes the crime of fraud, and should be punished concurrently

Warehousing number: 2023-03-1-222-007

Trial court: Guta District People's Court of Jinzhou City, Liaoning Province, Intermediate People's Court of Jinzhou City, Liaoning Province

Case No.: (2019) Liao 0702 Xingchu No. 105, (2020) Liao 07 Xingzhong No. 74

Keywords: criminal fraud unit bribery personal bribery implicated

Basic facts of the case

From 2015 to 2017, defendant Miao XX was the actual controller of a certain Huarui Company and a certain Hexin Company, and at the same time, he acted as an agent for a number of companies such as a Xinghua Company and was responsible for handling the application for employment subsidies for these companies. In the process of applying for employment subsidies for a Huarui company, Miao Moumou used false employment methods to defraud social insurance subsidies of RMB 441,693 and public welfare post subsidies of RMB 247,950. Miao Moumou used the same means to defraud a social insurance subsidy of RMB 29,058 and a public welfare post subsidy of RMB 14,760 in the process of applying for employment subsidy funds for a Xinghua company, with a total of 733,461 yuan of fraud. In the process of applying for employment subsidy funds, Miao Moumou gave a total of 250,000 yuan to Ma, director of the Employment Promotion Division of a human resources and social security bureau, five times.

  On December 9, 2019, the Guta District People's Court of Jinzhou City, Liaoning Province, rendered the (2019) Liao 0702 Xingchu No. 105 Criminal Judgment: 1. Defendant Miao XX committed the crime of fraud and was sentenced to five years and four months imprisonment and a fine of RMB 50,000, and was sentenced to eight months imprisonment and a fine of RMB 100,000 for the crime of offering bribes by a unit, and decided to enforce the fixed-term imprisonment of five years and six months and a fine of RMB 150,000. 2. A total of RMB 923,4461 of defendant Miao XX's unlawful gains and property used in bribery are to be confiscated and turned over to the state treasury. Defendant Miao XX was not satisfied and appealed. On May 12, 2020, the Intermediate People's Court of Jinzhou City, Liaoning Province, rendered the (2020) Liao 07 Xingzhong No. 74 Criminal Ruling, ruling to reject the appeal and uphold the original judgment.

Grounds for the Trial

The Guta District People's Court of Jinzhou City, Liaoning Province, and the Intermediate People's Court of Jinzhou City, Liaoning Province, held that Miao Moumou, for the purpose of illegal possession, fabricated facts in the name of the unit and defrauded an employment subsidy of 733,461 yuan, a particularly huge amount, and his conduct constituted the crime of fraud; Miao XX has committed several crimes, and shall be punished concurrently in accordance with law. After Miao XX arrived at the case, he truthfully confessed the facts of the crime of offering bribes by a unit, which was a confession, and he could be given a lighter punishment for the crime of offering bribes to a unit he committed in accordance with the law; after he arrived at the case, he took the initiative to truthfully confess the facts of the crime of fraud that the case-handling organs did not know, and he turned himself in, and his punishment for the crime of fraud may be commuted in accordance with the law. Miao Moumou returned most of the proceeds of fraud and part of the bribes, and may be given a lighter punishment as appropriate. Miao XX has a criminal record, and may be considered in sentencing on the basis of the entire case. The proceeds of Miao's fraud shall be returned to the victim's unit, and the bribes returned by the bribe recipient after the bribe is the property used in the bribery, and shall be confiscated and turned over to the state treasury in accordance with law.

Summary of the trial

Although the two acts are partly implicated in the fabrication of facts and the offering of bribes to the functionaries of state organs in order to defraud the state subsidy, bribery is not a necessary means in the formation of the crime of fraud, and it is not an inevitable consequence of bribery to be able to obtain state subsidies by deception from the bribe-taker. Fraud and bribery are independent, the legal interests infringed by the former act are the ownership of public and private property, and the legal interests infringed by the latter act are the unbuyability of public official acts, and should be evaluated twice. Concurrent punishment for several crimes of fraud by means of bribery is an inherent requirement of the principle of legality of crimes.

III. Case of Zhang X A's Fraud, Unit Bribery, and Misappropriation of Funds Retrial and Judgment of Not Guilty -- Although there were violations, the fabrication of facts and the concealment of the truth were not carried out to defraud the funds for the technical transformation of treasury bonds to discount interest do not meet the constitutive elements of the crime of fraud

Warehousing number: 2023-16-1-222-001

Trial courts: Hengshui Intermediate People's Court of Hebei Province (first instance), Hebei Provincial High People's Court (second instance), Supreme People's Court (2018) Zui Gao Fa Xing Zai No. 3 (retrial)

Case No.: (2008) Heng Xing Chu Zi No. 22, (2008) Ji Xing Er Zhong Zi No. 89, (2022) Lu 16 Xing Zhong No. 203

Keywords: criminal fraud unit bribery crime misappropriation of funds illegal possession intentional irregularities

Basic facts of the case

1. Fraud

At the beginning of 2002, after the defendant Zhang Moujia (the chairman of the board of directors of a certain company) learned of the policy of discounting the interest rate of national bonds and that the former State Economic and Trade Commission was organizing the application for the technical transformation project of national bonds, he immediately discussed with the defendant Zhang Mouyi (the administrative director of a certain company) and others and decided that a certain company A should make a declaration, and appointed Zhang Mouyi to be specifically responsible. Zhang Mouyi went to the former State Economic and Trade Commission and other departments for consultation. For the sake of convenience and speed, Zhang Mou A and Zhang Mou B decided to declare in the name of a subsidiary of a company B, and obtained the consent of Tian, who was the chairman of a company B at the time. In the name of a subsidiary of Company B, Company A reported to the former State Economic and Trade Commission two national debt technical transformation projects (hereinafter referred to as logistics projects and informatization projects) for third-party logistics transformation and information modernization, and prepared and submitted the project "Feasibility Study Report" and other application materials, among which the land planning opinions and drawings attached to the "Feasibility Study Report" of the logistics project are not standardized and have no legal effect. After the above two projects were approved by the former State Economic and Trade Commission and other departments, a company A signed a false equipment purchase contract with its affiliated company, a company C, issued false invoices, and obtained a loan of 130 million yuan for the informatization project, which was later used for the company's operation. The logistics project could not be implemented at the original planned location due to objective reasons, and no loan was applied. In November 2003, a company A obtained a total of 31.9 million yuan of treasury bonds for logistics projects and informatization projects through a company B, which was later used to repay the company's other loans. After the incident, 31.9 million yuan was recovered.

  2. The crime of offering bribes by a unit

  In 2002, the defendant Zhang Moujia of the original trial learned that a certain company wanted to transfer the 50 million shares of a certain company held by a certain company, that is, through Zhao Mou, director of the general manager's office of a certain company (handled in a separate case), he clearly expressed to the person in charge of the company that the defendant unit of the original trial was interested in acquiring the shares. Zhang Moujia asked Zhao to help, and said that he would not treat Zhao badly after the matter was completed. A company and a company reached an agreement on the acquisition of shares through several negotiations. On June 26, 2002, Company A signed an equity transfer agreement with a company in the name of its affiliate, Company C. According to Zhang's arrangement, between January 2003 and February 2004, Zhang paid 300,000 yuan to Zhao in three installments by reimbursing expenses through a center A, an affiliate of Company A.

  In 2002, in order to alleviate its operating difficulties, a certain company E decided to transfer its 50 million shares of a certain company D. Chen, the chairman of the board of directors of a certain Ding company, informed the defendant Zhang X A of this information and suggested that it be acquired, and Zhang X A agreed. In order to facilitate the equity transfer, Chen proposed to Liang, the general manager of a company E, to give Liang a benefit fee of 5 million yuan after the equity transfer, and put forward this request to Zhang Moujia, and Zhang Moujia accepted it. At the request of Chen and Zhang, Liang's alumnus Li also asked Liang to do work in order to help the defendant unit in the original trial, Company A, acquire shares. Subsequently, Company A proposed to transfer the shares of Company D held by Company E at a price of RMB 1.35 per share, but Liang did not agree. At Liang's suggestion, a company E entrusted a Guangzhou exchange to be listed and transferred at a price of 1.45 yuan per share. In the case of no delisting, a certain company E and a certain company finally reached an agreement at a price of 1.4 yuan per share after many negotiations. On March 20, 2003, Company A signed an equity transfer agreement with Company E in the name of its affiliated company, a company of its own. A few months later, without Liang's knowledge, Li demanded 5 million yuan from Zhang Moujia through Chen. At Chen's request, Zhang X A arranged for Zhang X C to remit 5 million yuan to Li's company account. Liang later learned that he made it clear that he had nothing to do with him and refused to accept the money, which had been in the possession of Li's company.

  3. The crime of misappropriation of funds

  In March 1997, the defendant in the original trial, Zhang Moujia, the chairman of the board of directors of a certain D company, Chen X, and the chairman of a certain Geng company, Tian X, agreed to use the 40 million yuan of a certain Ding company's funds to subscribe for new shares for profit. On March 27 of the same year, 40 million yuan of the funds of a certain company D were transferred to a stock account opened by a certain center of a certain company A in the Beijing Fangzhuang business department of a securities company, and Zhang C was specifically responsible for subscribing for new shares according to the arrangement of Zhang Moujia. In order to avoid risks, the Planning and Finance Department of a certain company signed an agreement and a mortgage contract with a certain center B to entrust investment in treasury bonds. In July of the same year, due to the inspection by the People's Bank of China, Zhang Moujia, Chen Mou and Tian agreed to transfer another 50 million yuan from a certain Ding company to a certain Xin company under the management of a certain Geng company. A Xin company transferred 40 million yuan to the account of a B center to return the previous 40 million yuan to a D company. On August 19 of the same year, a certain B center returned 40 million yuan to a certain D company. On September 3 and 9 of the same year, a certain B center and a certain Xin company returned a total of 50 million yuan to a certain D company in two installments.

  Rendered by the Intermediate People's Court of Hengshui City, Hebei Province on October 9, 2008 (2008) Heng Xing Chu Zi No. 22 Criminal Judgment: Defendant Company A committed the crime of offering bribes by a unit and was fined 5.3 million yuan; Defendant Zhang X A committed fraud and was sentenced to 15 years imprisonment and a fine of RMB 500,000, and was sentenced to three years imprisonment and misappropriation of funds, and was sentenced to 1 year imprisonment and decided to enforce the sentence of 18 years imprisonment and fined RMB 500,000; Defendant Zhang X B committed fraud and was sentenced to 5 years imprisonment and fined RMB 200,000; Zhang Mouyi's illegal gains are to be recovered and handed over to the state treasury. After the judgment was pronounced, Company A, Zhang X A, and Zhang X B all appealed. On March 30, 2009, the Hebei Provincial High People's Court rendered the (2008) Ji Xing Er Zhong Zi No. 89 Criminal Judgment, upholding the conviction and sentencing of Company A and Zhang X B in the first-instance judgment, the recovery of illegal gains of Zhang X A and Zhang X B, and the crime of offering bribes to Zhang X A's unit. The part of the conviction and sentencing for the crime of misappropriation of funds and the conviction for the crime of fraud; the part of the first-instance judgment that revokes the sentencing of Zhang X A for the crime of fraud and the part that decides to enforce the criminal punishment; Zhang X A is guilty of fraud and is sentenced to 10 years imprisonment and a fine of 500,000 yuan, and is sentenced to 12 years imprisonment and a fine of 500,000 yuan for the crime of offering bribes and misappropriation of funds by the unit he committed. After the original judgment took legal effect, Zhang Moujia filed a complaint with the Supreme People's Court. The Supreme People's Court decided to retry the case and rendered the (2018) Supreme Court Xing Zai No. 3 Criminal Judgment on May 30, 2018, revoking the original first- and second-instance judgments;

Grounds for the Trial

In this case, the former State Economic and Trade Commission, the former State Development Planning Commission, the Ministry of Finance and the People's Bank of China formulated in 1999 and other policy documents such as the Measures for the Management of National Key Technological Transformation Projects and the Measures for the Management of Special Funds for National Key Technological Transformation Projects did not explicitly prohibit private enterprises from applying for national key technological transformation projects to obtain financial support for the technical transformation of national bonds. In December 2001, when the mainland formally joined the World Trade Organization, the state adjusted the investment direction and focus of the national debt technical transformation project because the goal of reforming state-owned enterprises in three years and extricating them from difficulties was basically achieved. In 2002, when a company A applied for the national debt technical transformation project, the state's policy on private enterprises had changed, and the national debt technical transformation discount policy had been adjusted. As a large-scale domestic circulation enterprise, a company A actively applied to obtain the support of the treasury bond technical transformation discount fund for its logistics and information construction, which met the requirements of the national economic development situation and industrial policy at that time, and there was sufficient evidence to prove that the private enterprise had the qualification to apply for the national debt technical transformation discount project in 2002; Zhang Mouyi applied for a national debt technical transformation project in the name of a subordinate enterprise of a certain company B, without concealing the nature of a private enterprise of a certain company A, and did not cause the relevant personnel of the former State Economic and Trade Commission responsible for examination and approval to have a wrong understanding of the nature of the enterprise; the logistics project declared by a certain company A was not fictitious, and after the project was approved, it was not implemented at the original site as planned, and the failure to apply for a loan was due to objective reasons such as the "SARS" epidemic and the change of land in the logistics industrial park in Tongzhou District, Beijing from lease to sale, and it has been implemented in other places. Although the "Feasibility Study Report" submitted by a certain company is untrue, it is not enough to deny the feasibility and authenticity of the project; the purpose of the state's issuance of the national bond technical transformation discount is to support the technological transformation project of the enterprise, and the project declared by a certain company is within the scope of policy support after being reviewed by the relevant departments. According to the application process, when a company applied for a bank loan, its application for the treasury bond technical transformation discount project had been approved. After obtaining 31.9 million yuan of treasury bonds, Company A used the funds to repay the company's other loans, but it has always listed it as "money payable to the people's government" in its financial accounts, and has not used deceptive means to conceal or embezzle it, and Company A has the ability to return the funds at any time. Therefore, although the behavior of Company A violated the provisions of the "Measures for the Management of Special Funds for Treasury Bonds for National Key Technological Transformation Projects" that special funds for treasury bonds should be earmarked, which is a violation, it should not be determined to be a fraud of illegally occupying special state discount funds.

  In this case, Company A gave a benefit fee of 300,000 yuan to Zhao, a state functionary, which was a violation of state regulations by giving off-the-books handling fees to state employees in economic activities. However, the facts in this case have the following circumstances: (1) in order to alleviate the shortage of funds, a certain company intends to transfer the shares of a certain company held by a certain company, and after communication and contact with Chen, the chairman of a certain company, a certain company A decided to acquire and reached an agreement on the equity transfer after several negotiations with a certain company, during which no third party participated in the equity acquisition, there was no exclusion of other buyers and a competitive advantage, and the transaction between the two parties did not violate the principle of fairness. (2) In the absence of the participation of a third party and the two parties voluntarily reached an intention to acquire, the benefit fee promised by Company A to the other party was not for the purpose of seeking improper benefits. (3) The transfer of the shares of a certain company held by a certain company to a certain company and the specific transfer price were all discussed and decided by the joint meeting of the party and government leadership group of a certain company for many times, and the final transaction price of the two parties was also within the price range predetermined by a certain company, and a certain company did not actually obtain improper benefits, and the interests of the other party of a certain company were not harmed. (4) As the director of the general manager's office of a company, Zhao only played a role in communication and liaison in the process of equity trading, and did not seek improper benefits for a certain company. Comprehensively considering the above-mentioned circumstances, it can be determined that the company's conduct is not a serious circumstance, and it can be considered that it does not constitute the crime of offering bribes by a unit.

  In this case, the act of Company A paying 5 million yuan to Company Li did not constitute the crime of offering bribes by a unit in accordance with the law. (1) In the case that Company E intended to transfer its shares, Chen proposed to Liang to be acquired by Company A, and asked Zhang to give Liang a benefit fee of 5 million yuan, and then made such a request to Zhang Moujia. Therefore, before the equity transfer, the benefit fee given to Liang was proposed by Chen, and Zhang Moujia only passively accepted Chen's request. (2) The evidence in the case proves that Liang did not agree to the transfer price proposed by Company A, and proposed to be listed for transfer at a price higher than that price, and the final equity transaction price between Company A and Company E was determined after several negotiations when Company E failed to list and transfer, and was higher than the transfer price proposed by Company A. Therefore, Liang did not provide assistance to Company A in the process of equity transfer, and Company A did not obtain any improper benefits as a result. (3) The evidence in the case confirms that after the signing of the equity transfer agreement, Company A did not pay Liang a benefit fee of 5 million yuan, and Liang did not mention this matter. It was not until a few months later, without Liang's knowledge, that Li demanded the 5 million yuan from Zhang Moujia through Chen, and Zhang Moujia arranged for Zhang Mou C to remit the money to Li's company's account. Liang later learned that he made it clear that he had nothing to do with him and refused to accept the payment. The paragraph has been in the possession of Li's company. Therefore, after the equity transfer, the payment of 5 million yuan by a company A was demanded by Li, and there was no subjective intention to bribe for the purpose of seeking improper benefits.

  In this case, the original judgment found that Zhang Moujia conspired with others to embezzle 40 million yuan of the funds of a certain company to subscribe for new shares for profit, and then used 50 million yuan to post and repay the loan to cover up the facts. However, the evidence in the case shows that the funds involved in the case were all transferred between units, reflecting the flow of funds between units, and there was no sufficient evidence to prove that they were for personal use. Due to the lack of evidence such as the transaction records of the stock account of a certain center B, the specific transactions and capital flows on the account are not clear, and there is no evidence to prove that Zhang and others took possession of the profits from the subscription of new shares.

  To sum up, although the defendants Zhang X A and Zhang X B had violated the rules in the process of applying for a project in Company A, they did not carry out the fraud of fabricating facts and concealing the truth to defraud the treasury bond technical transformation discount funds, and did not have the subjective intention of illegally occupying 31.9 million yuan of treasury bond technical transformation discount funds, which did not meet the constitutive elements of the crime of fraud. Therefore, the original judgment's determination that Zhang X A and Zhang X B's conduct constituted the crime of fraud was an error in the determination of facts and the application of law, and should be corrected in accordance with law. The defendant in the original trial, Company A, gave Zhao a benefit fee of 300,000 yuan after acquiring the shares of Company D held by a certain company, which was not for the purpose of seeking improper benefits, nor was it a serious circumstance, and did not meet the constitutive elements of the crime of offering bribes by a unit; after acquiring the shares of Company A held by Company E, it paid 5 million yuan to Company Li, and it did not have the subjective intention to bribe for the purpose of seeking improper benefits, nor did it meet the constitutive elements of the crime of offering bribes by a unit, so the conduct of Company A did not constitute the crime of offering bribes by a unit, and Zhang Moujia, as the directly responsible person in charge of Company A, should not be investigated for criminal responsibility for the crime of offering bribes by a unit。 The original judgment's determination that the conduct of Company A and Zhang X constituted the crime of offering bribes by a unit was an error in the determination of facts and the application of law, and should be corrected in accordance with law. The fact that Zhang X A conspired with Chen X and Tian X and took advantage of Chen's position to transfer 40 million yuan of funds from Chen's D company to the stock trading account of X B Center for profit-making activities is clear and the evidence is credible. However, the original judgment found that the facts of Zhang Moujia's misappropriation of funds for personal use and personal benefit were unclear and the evidence was insufficient. Therefore, the original judgment's determination that Zhang Moujia's conduct constituted the crime of misappropriation of funds was an error in the determination of facts and the application of law, and should be corrected in accordance with law.

Summary of the trial

In the process of declaring the project, although there were violations, the fraud of fabricating facts and concealing the truth to defraud the treasury bond technical transformation discount funds was not carried out, and there was no subjective intention of illegally occupying 31.9 million yuan of treasury bond technical transformation discount funds, which did not meet the constitutive elements of the crime of fraud.

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