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Between March 2018 and May 2019, defendant Zhang X, in order to defraud funds, violated the relevant provisions of the State Securities Investment Fund Law, used the fictitious investment direction of the investment fund management company under his actual control to fabricate the "Jiayun No. 1, Wenying No. 1, Wenying No. 2, and Chuangying No. 3" investment fund projects, recruited defendants Gao X, Yan X, and others to form a business team, and defendants Gao X and Yan X used high return and risk-free bait to publicize to the public by distributing gifts and opening lectures. Induce investors to invest in the purchase of the above funds. After auditing, 51 investors purchased fake funds totaling RMB11.94 million, and none of them were paid. Zhang held 7.4874 million yuan and used the balance for the above-mentioned company he actually controlled. Among them, defendant Gao absorbed a deposit amount of RMB4.95 million from the public and received a commission of RMB637,100, while defendant Yan absorbed a deposit amount of RMB3.42 million and received a commission of RMB444,600.
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On the basis of meeting with Yan, mr. Xin Ming issued an evidence review report for the case based on Yan's own statement and combined with the review of all case file materials for analysis and argumentation. Lawyer Xin Ming formulated a defense strategy with reducing the amount involved in the case as the core, and repeatedly communicated with Yan and the procurator who undertook the case on matters such as confession and admission of guilt and punishment, laying a foundation for the application of the plea leniency procedure.
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(1) Yan mou is not the core layer, management and backbone personnel of the company, but only an ordinary salesman of the company.
(2) The funds used for fundraising are all sold by the company and have nothing to do with Yan.
(3) Regarding the amount involved in the case, the customer transfers all of them to the company's account.
(4) The inclusion of funds absorbed from relatives and friends in the evaluation of the amount of crime must be based on the premise of "public publicity to the public", and the amount invested by 11 relatives and friends not based on Yan's public publicity should not be included in the amount of crime.
(5) Where Yan surrenders voluntarily and admits guilt and accepts punishment, it is recommended that he be given a lighter punishment.
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Defendant Yan X was convicted of illegally absorbing deposits from the public and sentenced to three years' imprisonment suspended for three years and a fine of RMB 50,000.
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The focus of attention in this case is the distinction between "specific persons" and "unspecified persons". According to article 5 of the Opinions of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on Several Issues Concerning the Handling of Criminal Cases of Illegal Fund-raising, article 5 on the determination of the amount of the crime: "Illegally absorbing or covertly absorbing deposits from the public constitutes a crime, and in any of the following circumstances, the funds absorbed from relatives, friends, or internal personnel of the unit shall be included in the amount of the crime together with the funds absorbed from unspecified targets:
(1) In the process of absorbing funds from relatives, friends, or internal personnel of the unit, knowing that relatives, friends, or internal personnel of the unit are absorbing funds from unspecified targets, they are allowed to allow them to be allowed;
(2) Absorbing social personnel as internal personnel of the unit for the purpose of absorbing funds, and absorbing funds from them;
(3) Publicizing publicity to the public, and at the same time absorbing funds from unspecified targets, relatives, friends, or internal personnel of the unit. The amount of deposits illegally absorbed or covertly absorbed by the public shall be calculated as the full amount of funds absorbed by the perpetrator. The amount of the fundraising participant recovering the principal or re-investing after receiving a return is not deductible, but may be considered as a sentencing circumstance. ”
It is not difficult to see from the above-mentioned laws that the inclusion of funds absorbed from relatives and friends in the evaluation of the amount of crime must be based on the premise of "publicity to the public", and relatives and friends must also meet the reasons for the perpetrator's implementation of "public publicity to the public" before deciding to invest funds. In this case, the investment behavior of these 11 relatives and friends was not an investment decision made because of "public publicity to the public through the media, promotion meetings, flyers, mobile phone text messages and other channels", that is, the investment of the 11 relatives and friends was not based on Yan's publicity. They took the initiative to invest after seeing Yan's father, Yan Mou2, invest. It can also be seen from Yan Mou2's investment that Yan Mou did not conduct a practical investigation of Zhang Mou's introduction to the fund involved in the case, and it can even be said that he was convinced that his father would invest. These 11 relatives should not be identified as "unspecified targets", and the amount of their investment should not be identified as "illegal absorption of public deposits or covert absorption of public deposits".
During the trial, Mr. Xin Ming argued on the number and amount of absorption, and in the end, the court supported Mr. Xin Ming's defense opinion and gave him a lighter punishment.
Lawyer Profile:
Xin Ming, male, born in October 1980, is a member of the Communist Party of China. He graduated from Huazhong University of Science and Technology in 2004 with a double bachelor's degree in law and public service management, became a practicing lawyer in 2008, and obtained a master's degree in law from Jilin University in 2016. He is currently the deputy director of Yingke National Criminal Law Committee, the senior equity partner of Beijing Yingke (Changchun) Law Firm, and the director of the Criminal Defense Research Center. Visiting Professor of Jilin University of Finance and Economics Law School, Part-time Master Tutor of Master of Laws Education Center.