I remember that procurator Zhao Peng said that he sometimes reviewed the habit of writing the day's work situation densely, there was an analysis of handling cases, there was a review of appearing in court, and there were dispute points based on the discussion and induction of the case, and then he would sort out the issues that he would focus on next according to these situations, or write a paper to express his views, or write a self-media article to inspire thinking.
After some time, I will return to check the notebook to see if I have completed it on time, marked the completion, and accelerated the progress if it has not been completed. I think this is a very good way to help yourself summarize the improvement and remind yourself not to be lazy at any time.
Last weekend, he attended a lecture entitled "Difficult Issues in the Judicial Determination of Financial and Securities Crimes", and the lecturer was Wang Xin, a professor and doctoral supervisor at Peking University. This lecture was full of dry goods, and it really benefited a lot after listening to it.
Although there are also notes in the classroom, it is always simpler, in order to better digest knowledge, but also to urge themselves to study and study in depth, so as to review and leave a mark of thinking.
Professor Wang Xin began with a "Chart of Changes in Crimes Endangering Economic and Social Management Order in the Past 20 Years", analyzed the obvious increase in the number of prosecutions in the field of financial crimes in recent years, and at the same time cited and interpreted a large number of case-handling data such as the SPP work report, and drew three types of key crimes that endanger the economic field at present and in the future: illegal fund-raising, financial fraud and money laundering.
Next, Professor Wang Xin combined with the revision and placement of financial crimes in the "Criminal Law Amendment (ELEVEN)" to explain the crime of illegally absorbing public deposits, the crime of fund-raising fraud, the crime of fraudulently obtaining loans, the crime of illegal disclosure, the crime of not disclosing important information, the crime of manipulating securities, the crime of futures market, the crime of money laundering, etc. For me, who has only handled illegal fund-raising crimes in grass-roots procuratorial organs, the amount of information is too large and the amount of knowledge is too much.
Professor Wang Xin's explanation is simple and simple, and there are some vivid explanations and understandings, such as he said that the "Criminal Law Amendment (Eleven)" changes to illegal fund-raising crimes, one is to do addition problems, the other is to do subtraction problems. For another example, he imaged the amendment to securities crimes in this amendment as "the second handshake between administrative legislation and criminal legislation.".
While listening to the lecture, taking notes, and staring at the PPT, I was afraid of missing an important link, and I found that the whole person who listened to the lecture on the spot was the same as me, the three-hour lecture, the whole time concentrated.
Following Professor Wang Xin's thinking, in addition to systematically studying the background of the revision of these crimes, criminal policy and legislative intentions, there are also some other thoughts, about work, about knowledge, about self-discipline.
"We can't just see this one law, we must consider it comprehensively and in many ways."
Professor Wang Xin said that through attending several trainings organized by courts and procuratorates in Beijing, he found that there are still many judicial officials who do not have a deep enough understanding and grasp of securities crimes in the Criminal Law Amendment (ELEVEN), are not thorough enough, and even have deviations in understanding.
To handle securities crimes, it is necessary to understand the legislative source of securities crimes, China's economic and social background, and the criminal policy at that time, and on the basis of comprehensively considering the original meaning of legislation and historical development, we must interpret them in connection with each other, and we must connect several lines to understand, pay attention to the articulation of executions, and consider them in the context of the general situation, and we cannot simply see the revision of this law.
For example, for the crime of illegally absorbing deposits from the public in addition, why was it not considered in the first draft, only one aspect was considered in the second draft, and only in the third draft was the "two refunds" - the return of stolen goods and compensation into statutory circumstances written into the law? This is based on the current urgent need of the public for the recovery of stolen goods and losses in illegal fund-raising crime cases, so the return of stolen goods, which was originally a discretionary sentencing circumstance, was upgraded to a statutory circumstance.
This is not just a simple amendment to the law, it sends a signal that special attention is paid to the recovery of stolen goods in this type of crime, and it is an important reminder to the people involved.
Writing here, I can't help but want to say a little more, in fact, when we handle this kind of crime, we attach great importance to recovering stolen goods and recovering losses, starting from the investigation stage, to our review and prosecution stage, until the trial stage, we will try our best to find the whereabouts of the stolen money, and we will try our best to persuade the people involved in the case to return the stolen money and return the compensation, but limited by the conditions of the case, some suspects have squandered after absorbing funds, some have repaid usurious loans, and some have taken it to run other businesses and finally lose money... So the money recovered in practice is not very optimistic.
Therefore, on the basis of understanding the intention of amending the law and the original intention of legislation, we still need to change the concept of case handling in a timely manner, give full play to the wisdom of case handling, and think of more ways to make up for the damaged social relations.
"These defenses should also be the main points of the review"
On July 6 this year, for the first time in the history of the capital market, in the name of the CPC Central Committee and the State Council, the "Opinions on Strictly Cracking Down on Illegal Securities Activities in Accordance with the Law" was jointly issued; the president of the Supreme People's Court also pointed out in his work report that it is necessary to severely punish crimes such as disclosing information in violation of regulations and fraudulently issuing stocks in accordance with the law, and to have "zero tolerance" for violations of laws and crimes in the capital market.
This series of combined actions shows the determination and confidence of the state to crack down on illegal securities activities. However, such crimes are highly professional and difficult to investigate. That is why defenders, law enforcement, and the judiciary should strive to grasp the key points in these cases. The defender's defense points, such as the determination of the sensitive period of insider information, the time of formation of insider information, the reasonableness of transactions, and illegal gains, are all key points of judicial officers' review and cannot be ignored.
Professor Wang Xin also listed two very typical securities crime cases, which are of great guiding significance. It should be noted that in such crimes, the securities and futures regulatory departments often produce administrative punishment decisions, administrative replies and other identification materials, but these materials do not naturally have the legitimacy of evidence, and require judicial officials to conduct independent and comprehensive judicial review and judgment.
The last crime mentioned is the crime of money laundering, but it is particularly regrettable that because of the limited time, Professor Wang Xin did not carry out the lecture, but only mentioned that money laundering has an increasingly serious development trend in China, especially China is facing domestic and foreign pressure to strive to integrate into the framework of anti-money laundering cooperation in the international community.
We can see that this amendment has made major revisions to self-money laundering, mode of conduct, "knowing" requirements and fines. Although there are data showing that the number of money laundering crimes we have prosecuted has increased greatly since last year, this crime is still relatively unfamiliar to us, especially there may be some places where "self-money laundering criminalization" may still be not understood. Therefore, we also need to systematically sort out and learn the legal application of this crime.
Fragments of thought
The lecture mentioned the revision of the crime of fraudulent loans, and revised the previous "real offender + circumstance offender" identification rule to "real offender", Professor Wang Xin mentioned that this is to solve the problem of financing difficulties and expensive financing for private enterprises, and also to prevent the crime of fraudulent loans from becoming a "pocket crime".
Because a few days ago, I sorted out and documented the "criminal justice policy of less arrest, cautious prosecution, and prudent detention" and the development of the private economy, and I have a certain understanding of the problems of difficult and expensive financing for private enterprises, and now when I listen to the revision process and final draft of this crime, we will have a tangible understanding. It is increasingly found that the application of the law is not only to look at the article and look at the crime, but must be combined with the background of the times at that time, the current criminal policy and the latest requirements of the new era, and must be considered in the grand context.
In the determination of the crime of fraudulent loans, the main contract is very well determined, if the bank can make up for the losses from the contract based on the mortgage contract, etc., can the crime still be determined? The causal relationship between the fake materials used to defraud the loan and the bank lending money needs to be carefully examined, that is, the causal relationship between the deception means and the final harmful consequences, which are the problems that will be encountered in practice, and write it down for the time being.
At the beginning of the lecture, the host said that due to the epidemic, only 90 people participated offline, but more than 400 lawyers registered online, and the lecture was the third content of the Financial and Securities Crime Defense Seminar and the 2021 Annual Meeting of the Criminal Professional Committee of the Shandong Lawyers Association. Very touched.
Coupled with the experience of the past few years, it can be said that the defense party of the criminal case has been working around the profession, especially in some professional crimes and new types of crimes, and their ability to absorb professional knowledge and actions is admirable.