Introduction:
In practice, to loan bilk case, if the detinue of subjective side is intentionally,lean illative, the abrupt reimbursement behavior of behavior person follow-up may defy hold water illatively, a lot of places regard bounds as time of put on record, return before put on record those who return money is uniform and innocent, think subjective side does not have detinue intended, illative do not hold water, without giving thought to the money origin that its remand is lawful illegal perhaps. I think, although such operations have carry out easily, but have unreasonable place, the behavior that returns money ought to include inspect subjective side to whether have one of factors with intended detinue, is not one ticket is overruled make, for instance the origin of money, and whether because of the blame punishment is discovered, disclose and do remedy measure to wait a moment, other evidence analyses recombine together, reach finally whether illative and subjective on have the verdict with intended detinue.
"Borrow money to be not returned " model the cognizance of crime of fraud
Argument
It is a name with project capital requirement to others borrow or lend money, use at repaying entirely bills due and gamble, expire cannot refund, should maintain for crime of fraud.
Divisional behavior person " loan is not returned " property, should when mature behavior person lends money subjective and intended, free returns ability and the integrated element such as the use circumstance that lends money to place.
Details of a case
Public prosecution mechanism: Court of people of autonomous county of the Tujia nationality of Miao Zu of water of Chongqing city Peng.
The accused person: Luo Xiaobing.
In September 2012, luo Xiaobing got acquainted with Li Xingmei. Came in December 2012 in January 2013, luo Xiaobing him fiction needs the fact of capital in Cheng of Chongqing charge for the making of sth. , it is cover with accrual of high specified number, for many times Xiang Lixing plum is oral raise borrow or lend money. Li Xingmei supports what its manage deficient coadjutant fund early or late divert of two million three hundred and nineteen thousand one hundred yuan of privately gives Luo Xiaobing. To case hair before, luo Xiaobing remands Li Xingmei 276 thousand yuan, two million and forty-three thousand one hundred yuan of loan use the rest at Wu of countervail repay a debt and gamble entirely.
Cognizance
Court of people of autonomous county of the Tujia nationality of Peng water Miao Zu thinks after classics cognizance, luo Xiaobing is a purpose with detinue, take the property of dummy fact, means diddle other that hides the fact, amount is particularly huge, its behavior already constituted crime of fraud. Sentence Luo Xiaobing set term of imprisonment 11 years lawfully, punish gold 500 thousand yuan.
Luo Xiaobing refuses to obey first instance court decision mentions appeal, think to leasehold relation is between its and Li Xingmei, do not make crime.
Chongqing city thinks after cognizance of classics of court of the 4th intermediate people, luo Xiaobing already owed external debt of a huge sum in its, below the circumstance that does not have steady income source again, conceal its the financial standing of faint countervail debt, fiction needs the fact of money in Cheng of Chongqing charge for the making of sth. , it is bait with high interest, make Li Xingmei thinks Luo Xiaobing has reliable investment project by accident, have countervail to return ability, and defalcate is handed in two million three hundred and nineteen thousand one hundred yuan use by Luo Xiaobing. Luo Xiaobing is being cheated after capital, remand except few part outside the injured party, use the others fund at countervail debt, gamble and daily expense entirely, did not undertake to what borrowing fund appropriate is saved or sound investment, bring about cannot remand. Between Luo Xiaobing and Li Xingmei although leasehold relation is on name, but substantial Luo Xiaobing is ability circumstance is returned to fall in free, it is a name in order to borrow for many times, property of diddle other a huge sum, should conviction with crime of fraud punishment. The court decision rejects appeal, maintain original judgement.
Review analyse
"Borrow money to be not returned " model bilk, namely leasehold type bilk, it is to show behavior person is a purpose with detinue, adopt leasehold form, diddle is state-private the bilk means of property. This kind of crime happens from time to tome in daily life, because guilty person is to wrapping around normally,folk's leasehold veil is carried out, and much hair between kin, friend, acquaintance, because of this and civil case medium creditor's rights dispute over obligation has proper similar place, must undertake be checkupped strictly when handling this kind of case, prevent to regard crime as processing dispute over obligation, avoid to hit innocent.
Bilk of 1 leasehold type and folk are leasehold the distinction between
Crime of fraud, it is to point to " it is a purpose with detinue, use dummy fact or the beguiling method that hide the fact, make victim sink wrong know and " freewill " punish belongings, cheat access forehead thereby bigger above is state-private the behavior of property " . Leasehold type bilk and dispute over obligation of civil creditor's rights have the place of a lot of likeness in expressional formally, if be,transfer property for the name with loan, expire cannot repay debt is waited a moment. In this case, luo Xiaobing offers the oral agreement that there is borrow or lend money between he and the injured party, still have the action that pays principal and interest, although still do not have borrow or lend money, but its behavior belongs to folk leasehold, be not bilk. Are bilk of so leasehold type and folk leasehold between what does formally have to distinguish in expression? How do we undertake judging in particular case? The author thinks, basically have the following:
(one) the subjective intent of behavior person is different
Bilk person is subjective go up those who have detinue is intended, go to have the intention that does not remand when lending money for the person namely. Crime of fraud is a purpose to regard as with having detinue for the person all right subjective those who make important document, accordingly, bilk person " lend money " it is its dummy cover only, subjective the intent that goes up to did not remand at all. And normal leasehold person has remanded meaning however when loan, because objective reason creates liability,just often cannot remand in time.
(2) the kind that behavior person takes is different
Bilk person can use dummy fact and the method that hide the fact when loan, bring about the injured party to produce wrong understanding, if dummy loan uses Yu Mou to plant,seek profits sexual activity, be like fiction again from already financial standing, make the injured party believes his to have remanded capacity by accident. And normal and leasehold in, borrower often is met according to the facts tell its loan utility, use beguiling method rarely.
(3) behavior person is different to the manner of loan
Bilk person is being cheated so that won't consider to remand after property property, because this is in of property use on be without apprehension and abstemious, cause property directly destroy break, if use borrow or lend money at gamble, drug taking or individual prodigal; And folk is leasehold in, borrower itself is had remand the ability of loan, perhaps use borrow or lend money at can producing the way of lawful accrual, remand in order to ensure loan.
The 2 subjective intents that how judge travel humanness detinue
In judicatory practice, the guilty person of bilk of very much leasehold style is in after bringing to justice, always can putting forward is normal leasehold relation between its and the injured party, offer the evidence such as receipt for a loan to give even confirm, the quality that gives judgement this kind of case causes difficulty. For instance, what property of Luo Xiaobing behavior holds in this case is crucial, depend on Luo Xiaobing what is the real intent at that time. Subjective intent consist in in the person's cerebra, be a kind ideological, cannot come off from inside thinking directly come out to try attestation. The ego that often can rely on behavior person only is narrated, but authenticity is suspectable, more it is to want joint its are specific behavior expression undertakes one kind judging, because " be based on the person's consciousness and behavior is carried out, perhaps say the explicit show that is consciousness " . When handling this kind of case, cannot of person of the accused of only wait for information for narrate and explaining, want to undertake according to the objective behavior of the accused person and other and objective element integration analysis is judged however, the behavior expression in committing a crime for the person all right often can show his more subjective intent. Whether is judging behavior person when having detinue intention, answer to begin from the following respects:
(one) the reason that behavior person lends money and effective use
The folk with be in normal is leasehold in, borrower can tell the true utility of loan loan, make creditor witting borrow the utility zephyr danger of contributive gold, make a decision thereby. And in bilk case, guilty person can make up normally a few false loan utility, wait like investment, project proper and the project that has rich and generous profit, the mistake that makes the injured party arises to its lend contributive gold safety and can call in in time is known. And actually, guilty person uses fund at a few tall danger perhaps cannot call in in the meeting after obtaining loan the activity of capital, if be used at gamble, offer oneself prodigal etc, the capital that causes the injured party thereby cannot call in. Is intended, and the reason when loan and the similarities and differences that use actually, also can mirror a travel humanness to whether there are dummy fact or the objective action that hide true elephant when loan, it is to inspect behavior person the important basis of subjective state of mind.
(2) the financial standing when behavior person loan
The financial standing when behavior person loan is to judge its to whether prepare to remand the main factor of loan, travel humanness financial standing combines his the utility to loan, can accurate the true state of mind that holds behavior person. In case of a lot of bilk, guilty person is heavily in debt in oneself or do not have any repaying below the circumstance of ability, already will dress up wealthy person oneself through dummy fact or have countervail to return ability, if pretend to have car of building, land, a person of extraordinary powers to wait, cheating the launch out after getting borrow or lend money, cause loan to cannot remand, this kind of case ought to maintain behavior person to do not have the intent that repay when loan. Conversely, if go to have better worth requirement for him person, although passed the method such as dummy reason to obtain loan, use at the activity such as gamble to create borrow or lend money cannot on time compasses return, but the other property that its own, wait like house property, car, stock, can make sure loan interest does not suffer lose, ought to maintain behavior person to have remanded intention when loan, should not maintain for bilk.
(3) whether does behavior person have the action that conceal true identity or hides track
In leasehold type bilk, guilty person can use anonym, false address or false papers to conceal true identity before crime, in procurable hind disappear from the scene. Return some to although use true identity,make guilty person, but in be being cheated so that loan hind or the injured party pursue countervail course, through changing mobile phone number, change resides the method such as dwelling place dot to hide track, these behavior also can mirror a travel humanness not to wish to remand the subjective state of mind of loan, it is the important basis that judges behavior person quality.
In the subjective intent process that judges behavior person, ought to combine above to had comprehensive analysis and judgement at 3 o'clock, accurate is intended.
3 Luo Xiaobing's behavior constitute crime of fraud
With respect to this case character, luo Xiaobing although the name with loan to the injured party " borrow " paragraph, and still paid a part accrual and principal. But its behavior accords with crime of fraud make important document, should conviction with crime of fraud punishment, its reason is:
Above all, what Luo Xiaobing has detinue other property is subjective and intended. Luo Xiaobing is when loan oneself had been heavily in debt, do not have normal income source again, have countervail to return ability far from. And Luo Xiaobing is after the loan that obtained two yuan, use at repaying to be in debt entirely with gamble, these utility are impossible that generation receives benefit, bring about capital to cannot call in necessarily, explain its lend Qian Shigen this plan that did not return money and program, subjective going up is to think property of detinue the injured party undertakes use, although meantime has a few remanding the behavior of accrual and capital, also be its only to conceal the fact, prevent the injured party to discover in time, reason collect batman is subjective go up the intention that has detinue other property, accord with the subjective important document of crime of fraud.
Next, luo Xiaobing carried out the objective behavior of property of other of dummy fact diddle. Luo Xiaobing to fiction of the injured party the fact that its have a project in Chongqing, it is bait diddle with high interest the accredit of the injured party, the capital two yuan " borrow " he. Because get,the injured party is of fact of Luo Xiaobing fiction deceit, produce Luo Xiaobing to have proper investment way, can gain profit and call in in time the wrong understanding of loan, the risk divert that ability pleasant risks illegal guilt is communal belongings is used to Luo Xiaobing. If Luo Xiaobing tells the true utility of capital the injured party, apparent the injured party is won't lend Luo Xiaobing to be used at returning Zhang, gamble public money. Accordingly, luo Xiaobing carried out the behavior of dummy fact, make the injured party produces wrong understanding, thereby the property of diddle the injured party, its behavior accords with the objective important document of crime of fraud.
Finally, luo Xiaobing's behavior caused two million and forty-three thousand one hundred yuan property to cannot be recovered, its guilt amount is particularly huge, caused significant loss to state-private property, sequential and serious, ought to according to " criminal law of People's Republic of China " the 266th regulation, conviction with crime of fraud punishment.
