Chengdu Business Daily-Red Star News
Recently, Ms. Cao from Wenzhou broke the news to Red Star News that she was accidentally involved in a fraud case when she was selling Rolex watches on a second-hand trading platform, and was listed as a fugitive online by the police. Ms. Cao was released on bail pending trial after returning the 140,000 yuan transaction price, but the police have not recovered the watch she sold.
Ms. Cao insisted that the transaction price of 140,000 yuan should be property acquired in good faith, and even if the funds were disputed, they should be dealt with in accordance with the law after the facts of the case were clarified, so she believed that she had a reason not to refund the money. At the same time, she questioned the criminal coercive measures taken by the police, arguing that there was no legal basis.
Subsequently, the Red Star News reporter learned from the case handling personnel that Ms. Cao has been released on bail pending trial, excluding the suspicion of being involved in the case, the police have ascertained the identity information of the suspect who bought the watch, and the suspect has absconded abroad, the case is still under investigation, and the police will do their best to recover the watch involved in the case. In addition, the suspect was also involved in other fraud cases.
Woman sells second-hand Rolex watch to "get into trouble"
The police have released him on bail pending further investigation and ruled out suspicion
Ms. Cao told that on June 23, she sold one of her Rolex watches on the second-hand platform, and a buyer contacted her to ask for an offline meeting, and agreed to close the transaction at a price of 148,000 yuan. At about 15 o'clock on the same day, the buyer sent someone to pick up the Rolex watch near Ms. Cao's house, transferred 140,000 yuan to Ms. Cao's bank card, and transferred another 8,000 yuan to Alipay.
That night, Ms. Cao found that her bank card was frozen, and the next morning she went to the central police station of the Longwan District Branch of the Wenzhou Municipal Public Security Bureau to report the case, and reported her experience to the police. The police station immediately contacted the person in charge of the Yunyan Branch of the Guiyang City Public Security Bureau in Guizhou Province and provided the Guiyang police with the transcript of his report, as well as transaction records and video materials related to the case.
The "Explanation of the Investigation" issued by the Central Police Station of the Longwan District Branch of the Wenzhou Municipal Public Security Bureau to the Criminal Investigation Brigade of the Yunyan Branch of the Guiyang Municipal Public Security Bureau shows that "according to the available evidence materials, the suspect of the informant Ms. Cao suspected of fraud-related criminal activities can be ruled out, and the informant Ms. Cao is also willing to actively cooperate with the investigation of the fraud case of Xu Moumou in your bureau, because the informant Ms. Cao is also the victim of this case, and she has also lost a watch worth more than 100,000 yuan, I hope that your bureau can change or lift the criminal compulsory measures for her criminal detention and fugitive as soon as possible in accordance with the law." ”
A statement on the investigation issued by the Central Police Station of the Longwan District Bureau of the Wenzhou Municipal Public Security Bureau
Ms. Cao said that the Guiyang police still asked the Wenzhou police to control her, and told her that the criminal coercive measures could only be changed after returning 140,000 yuan to the victim Xu Moumou in Guiyang. Because the bank card was frozen, Ms. Cao's family raised another 140,000 yuan on June 25 to return 140,000 yuan to the bank card of the victim Xu Moumou's father in Guiyang. On the same day, the Yunyan Branch of the Guiyang Municipal Public Security Bureau changed Ms. Cao's release on bail pending trial, and Ms. Cao was able to return home.
On June 25, the Yunyan Branch of the Guiyang Municipal Public Security Bureau changed Ms. Cao's release on bail pending further investigation
On July 4, the Criminal Investigation Brigade of the Yunyan Branch of the Guiyang Municipal Public Security Bureau issued a "statement of circumstances" to rule out Ms. Cao's suspicion of being involved in the case. The explanation said that Ms. Cao's bank card involved in the case received a sum of 140,000 yuan at 15:46:49 on June 23, and the 140,000 yuan involved the "case of Xu Moumou being defrauded in Yunyan District" being handled by the bureau. Ms. Cao said that on September 24, she received a phone call from the Guiyang police saying that they had mailed her documents related to her release on bail, but she had not received them.
A statement of the situation issued by the Criminal Investigation Brigade of the Yunyan Branch of the Guiyang Municipal Public Security Bureau
On October 14, the Red Star News reporter called the Criminal Investigation Brigade of the Yunyan Branch of the Guiyang Municipal Public Security Bureau to inquire about the progress of the case. Subsequently, the reporter learned from the case-handling personnel that the police would re-mail a document that Ms. Cao was released on bail pending trial. "If it is lifted, it will be ruled out (of the suspicion of committing the crime), and this case will have nothing to do with her." The case officer said that the police have ascertained the identity information of the suspect who bought the watch, and the suspect has absconded abroad, and the case is still under investigation, and the police will do their best to recover the watch involved. In addition, the suspect was also involved in other fraud cases. The reporter asked why the refund could only be released on bail pending trial, but the other party did not reply for the time being.
Lawyer's Statement:
It constitutes a bona fide acquisition and there is a reason not to return it
As a result, Ms. Cao lost a watch worth more than 100,000 yuan, and she said that she was also one of the victims in this case, and that 140,000 yuan was deposited into her bank card and should be a property obtained in good faith by a third party, even if the 140,000 yuan involved in the case is disputed, it can be returned in accordance with the law after the facts of the case are clarified. Ms. Cao argued that she had reasons not to refund the money and questioned the illegality of the criminal coercive measures taken by the police.
Zhao Liangshan, a senior partner of Shaanxi Hengda Law Firm and a well-known public interest lawyer, told Red Star News that if Ms. Cao did not participate in any fraudulent activities and could prove her innocence, and the investigation statement issued by the Central Police Station of the Longwan District Public Security Bureau showed that Ms. Cao was suspected of fraud-related criminal activities. Under these premises, Ms. Cao has the right to request that the police lift the criminal coercive measures against her.
As for whether Ms. Cao's 140,000 yuan of transaction money will be refunded, Zhao Liangshan said that it cannot be generalized. Although Article 64 of the Criminal Law clearly stipulates that all property illegally obtained by criminals shall be recovered or ordered to be returned. However, article 11 of the Several Provisions of the Supreme People's Court on the Enforcement of the Property Portion of Criminal Judgments makes an exception to the stolen money to be recovered, and clarifies that if a third party obtains the property involved in the case in good faith, it will not be recovered during the enforcement procedure. Where the victim, who is the original owner, claims rights to the property involved in the case, the people's court shall inform them to handle it through litigation procedures. ”
In other words, when there is a conflict between bona fide acquisition and the recovery of criminal proceeds, the interests of bona fide third parties should also be protected, Zhao said. In this case, Ms. Cao obtained the 140,000 yuan through normal contract transactions and there was no malicious collusion, so Ms. Cao's acquisition of the 140,000 yuan constituted a bona fide acquisition and had a reason not to return it.
Zhao Liangshan pointed out that from the side, under the background that Ms. Cao did not commit fraud and obtained the 140,000 yuan in good faith, the police still required her to return the money, and took the return of the money as an additional condition for changing the criminal compulsory measures, and the police's practice has no basis in law.
Fu Jian, director of Henan Zejin Law Firm, told Red Star News that at the beginning of the investigation process, the police had evidence pointing to Ms. Cao's possible involvement in the case, and it was in accordance with the law to initiate the pursuit procedure. "The police have taken more effective and timely measures to monitor the stolen money through technical means and freeze the accounts transferred in and out, and these actions of the police are legal and reasonable, but they should not be required to return them after they have been transferred to Ms. Cao's account."
Fu Jian said that from Ms. Cao's standpoint, the transaction was carried out through a legal online trading platform, there was no collusion or collusion with the buyer, the transaction was legal and valid, and the transaction money obtained by Ms. Cao through a Rolex watch was a legitimate income, so the police's request for Ms. Cao's return was subject to discussion.
Red Star News reporter Rodani according to the interviewee
Original title: The sale of second-hand Rolex watches was involved in a fraud case, and the Wenzhou woman was released on bail pending trial after saying that she returned 140,000 yuan The police have ruled out her suspicion