Details of a case
Public prosecution mechanism accuses: (one) draw public deposit share illegally, came 2011 between July 2014, chen Zhifeng of the accused person adopts the way that pays high specified number interest to make public to others borrow or lend money, use at managing folk to put to shift business. Chen Zhifeng of the accused person in all to Wu Jun the much person loan such as new, Wang Changxiu, Huang Zhenhui adds up to RMB (the following money is planted identical) one billion two hundred and ten million three hundred and thirteen thousand two hundred and nineteen yuan. (2) bilk part, came in May 2014 during July 2014, chen Zhifeng of the accused person is in owe money of a huge sum to already remanded feebly and below the circumstance that knows perfectly well its to do not have other reimbursement ability, it is a purpose with detinue, use the dummy loan main content, means that conceals capital whereaboutldirection to cheat Huang Zhenhui of the injured party, Wang Changxiu, Wu Jun to wait for money newly to add up to early or late 244.4 million yuan, among them Wang Changxiu 48.9 million yuan, Huang Zhenhui 63.5 million yuan, Lin Xiaodong 8 million yuan, Chen Sun deficient 3.5 million yuan, Hong Fulai 42.5 million yuan, Ruan Qi is right 8 million yuan, Wang Huadong 30 million. Public prosecution mechanism thinks, the behavior of Chen Zhifeng of the accused person already offended " criminal law of People's Republic of China " the 176th the first, the 266th, bed 69 regulation, ought to deposit money to blame and crime of fraud count a blame to its and be punished with absorbing the public illegally. Criminality of other of impeach of Chen Zhifeng of the accused person, belong to via check solid, according to " criminal law of People's Republic of China " the 68th regulation, have make contributions plot, OK and light or reduce punishment.
Chen Zhifeng argue weighs the accused person: (Its and other undertake 1) financing short-term loan is normal civilian leasehold behavior, intended without detinue, also did not use bilk method, do not make crime; (2) accusation absorbs amount of public deposit share illegally to have discrepancy, already remanded among them or collect Wu Jun new assign tripartite account aggregate 21 million did not deduct, as separate as Chen Mingqun short-term loan only 3000 much and already two Qing Dynasty, still owe Zheng Wenqiao 1100 much, Chen Yonggong 33.65 million yuan, medium, cannot repeat calculation; (3) is consentient to charging bilk share amount.
Paraclete puts forward: 1, the charge that admits public deposit illegally to accusation does not have demur, but accusation absorbs the public illegally deposit amount has one billion two hundred and ten million three hundred and thirteen thousand two hundred and nineteen yuan by accident, deduct an indictment to hold the many audit in reporting with audit or leakage audit share more, absorb capital illegally to should be one billion and forty-three million and sixteen thousand two hundred and nineteen yuan. Specific as follows: (1) accusation absorbs Zheng Wenqiao illegally twelve million six hundred and eighty-one thousand eight hundred yuan, Chen Yonggong 46.65 million yuan, in constant is solid 61.9 million yuan of mistakes, witness Zheng Xiaomei confirms Chen Zhifeng still owes Zheng Wenqiao with Chen Yonggong of the injured party avowed Chen Zhifeng still owes his eleven million five hundred and thirty-four thousand eight hundred yuan 33.65 million yuan, these two should press attestation low maintain, in constant real company should deduct Hong Jingmin of him Chen Zhifeng, partner, Chen Jianmin, Yang Wenhua to invest a money aggregate 52 million, real company of the constant in be being absorbed actually 48 million yuan; (Because 2) is right Chen Zhifeng and Wu Jun are new, Chen Mingqun, yellow the audit existence problem between Zhen Hui, bring about accusation to admit amount error illegally. Among them Chen Zhifeng collects Wu Jun new Jiangxi of appointed tripartite account contains limited company of trade of abundant building materials 8 million, Cai Bing moves 10 million, pay ready money 3 million, aggregate 21 million yuan did not include audit, should grant to deduct; The tripartite account such as the Zheng Jiancheng that make a false report collects Chen Mingqun to be appointed into Chen Zhifeng, Huang Longhua, Chen Aiqing, Lin Yuting, did not sign up for appoint Chen Zhifeng to collect, should grant to deduct; Chen Zhifeng collects Huang Zhenhui 10 million yuan are maintained have nothing to do with this case mistake, should plan enter Chen Zhifeng creditor's rights; (3) accusation absorbs Chen Huaxing, Chen Manqing, Zheng Zongjin, Zhou Qihe, Huang Shuilong illegally capital is total 44.8 million yuan exist far from, fasten make a false report of the injured party, should grant to deduct. 2, think to charging bilk part the fact is not clear, evidence is insufficient. (1) Chen Zhifeng has enough reimbursement capacity, the receivable money that its enjoy amounts to 686 million yuan, value of asset of under one's name fifty-four million four hundred and fifty-nine thousand six hundred and twenty-one yuan, and via audit Chen Zhifeng collects Chen Manzhi to be able to affirm money should grant five hundred and seventy-nine million five hundred and sixty-six thousand nine hundred and nineteen yuan to recover more, aggregate amount to one billion three hundred and thirty-five million one hundred and six thousand five hundred and forty yuan, be head and shoulders above its place to owe debt; (2) Chen Zhifeng is nonexistent detinue purpose and behavior, it is to press before traditional Xiang Wujun is new loan waiting for a person 244.4 million yuan, use at capital have enough to meet need, it is to turn for the most part collect Wu Jun the person such as new, Wang Changxiu, Zheng Wenqiao; (3) Chen Zhifeng did not use the any dummy loan main content, means that conceals capital whereaboutldirection when loan, not clear, evidence is not worth the loan reason fact that place of the injured party weighs Chen Zhifeng is fictional, its behavior does not make friend crime of fraud. 3, the personnel that this case the injured party is specific limits, do not accord with collect money bilk is cheated the public sex of the object and extensive sex, the accused person is intended without detinue, also did not carry out any diddle to collect money the method of the paragraph, money all pays other borrower, also do not form collect money crime of fraud. 4, the accused person has make contributions plot, lawfully OK and light or reduce punishment.
Adjudgement
The court finds out via cognizance: Rose 2010, chen Zhifeng of the accused person is bait with paying 1.5-6% the interest of high specified number that differ, put borrowed way to collect money illegally through financing short-term loan or collaboration, use at managing capital to put to shift the business. Run to manage fund, build the false appearance that has rich economy actual strength, the accused person is adopted tear open east the wall fills on the west wall, dummy " borrow outside memory " , still borrow for industry have enough to meet need, the method of the loan main content such as impawn loan, conceal capital whereaboutldirection, to Wu Jun the social community such as new, Huang Zhenhui, Wang Changxiu, Hong Jingmin, Hong Fulai, Chen Jianmin collects money illegally, because major fund is used at remanding early days loan, pay interest, buy car of house property, a person of extraordinary powers and individual prodigal etc, create deficit gap bigger and bigger, classics the injured party for many times dun, chen Zhifeng of the accused person is examined and approve with awaiting a bank wait for all sorts of reason protracted reimbursement, the mobile telephone is shut since July 14, 2014, do not know a footprint, to there still is money before case hair one billion two hundred and ten million and forty-two thousand eight hundred and seventy-one yuan fail to remand. Specific crime fact is as follows:
1, come since 2010 between June 2014, chen Zhifeng of the accused person is bait with paying the high specified number of 1.5-6% interest, put through financing short-term loan or collaboration borrow wait for means Xiang Zhengwen the social community such as flower of artful, Chen Jianmin, Chen Shouken, arbutus, Hong Jingmin, Zhou Liangyu collects money illegally, repay captital with interest for many times during, to money of Wen Qiao of Zheng of the Shang Qian before case hair twelve million six hundred and eighty-one thousand eight hundred yuan, Chen Jianmin two million eight hundred and thirteen thousand five hundred and fifty yuan, Chen Shouken nineteen million eight hundred and seventy-two thousand four hundred and thirty yuan, red bayberry is spent and Yang Wenhua twenty-seven million six hundred and sixteen thousand four hundred and forty-three yuan, Hong Jingmin eighty-four million three hundred and five thousand eight hundred and seventy-two.
3, come since Feburary 2013 between July 2014, after Chen Zhifeng of the accused person returns the means of gold of repayment of capital to obtain credit to new loan of Wu Jun of the injured party on time with paying high specified number interest, fiction is managed " borrow outside memory " business can get lunar interest redound of 5% above high specified number, fiction participates in contest to pat Xiamen the fact such as 5 mine edifice invites the injured party Wu Jun is new participate in collaboration, use the method that return gold of repayment of capital or pays interest for many times, wu Jun of prevail on the injured party is new ceaseless and contributive, to there still is money before case hair five hundred and six million and sixty-two thousand seven hundred and fifty yuan cannot remand.
4, in December 2013, the 9 people such as Chen Zhifeng of the accused person and Hong Jingmin, Huang Zhenhui, Wang Changxiu invest jointly become a shareholder the constant in holding water is solid (Xiamen) buy estate company, because the company did not manage a project actually, agree to use capital to put by Chen Zhifeng, Huang Zhencheng via all partner borrow earn interest, came in December 2013 between January 2014, chen Zhifeng of the accused person passes the interest of high specified number that pays 3.6-5.1% , put credit formula with individual name loan or collaboration Xiang Zhongheng is solid (Xiamen) buy estate company raises funds, to the Shang Qian before case hair money fails 60.52 million yuan to remand.
5, between July 2014, fiction of Chen Zhifeng of the accused person raises fund to amount to Inc. to deal with equipment to rent financing to bank of fontal city channel for Shen Lu 200 million yuan reach impawn to borrow money 190 million yuan of business, when arriving OK and preferential repay for, lin Xiaodong of diddle the injured party 8 million yuan, Ruan Qi is right 8 million yuan, through Huang Zhencheng diddle advance Jiang Fuxin is filled small loan limited company 30 million yuan.
Additional find out, chen Zhifeng of the accused person was in fontal state city on July 29, 2014 Feng Ze area by south the public security bureau that bring city is captured via detect group. In detain during detention house of Yu Naan town, new dragon of Chen Zhifeng of the accused person and Xu of the room that be the same as date (already moved send examine sue) a day of before dawn at the beginning of 2014 is in Xu Xinlong of the know in chatting south install city to join room theft cash reserve in a bank 9800 yuan crime fact have not by public security, satisfy policeman of detention house of Xiang Naan town to inform against, hind south mechanism of the public security that bring city informs against clew to detect this to rise to commit a crime and move according to its send procuratorial work mechanism to examine sue.
After case hair, city public security bureau is installed south lawfully money of Chen Zhifeng of person of sequestered the accused 15.08 million yuan, Fujian D685B9 Meisaidesi - run quickly car, freeze Fujian C0138R Leikesasi the formalities of car transfer ownership of annals car of car, Fujian CDD138 Feng Tianrui, freeze Xiamen town life building of B2-4# of luxuriant lakeside garden 1 jump lake of city of 2 108 unit, Xiamen li.
City of state of Fujian Province spring thinks after cognizance of classics of intermediate people court: Chen Zhifeng of the accused person is a purpose with detinue, it is bait in order to pay high specified number interest, use bilk method nots only to the society calm personnel collects money illegally, cause pecuniary loss of one billion two hundred and ten million and forty-two thousand eight hundred and seventy-one yuan a huge sum to the injured party, its behavior already was formed collect money crime of fraud, and guilty amount is particularly huge. The basic crime fact that public prosecution mechanism accuses holds water, but the guilty amount of accusation has by accident, should grant to correct. According to the fact that find out, chen Zhifeng of the accused person with high interest means, use bilk method is absorbed illegally socially capital, encroached state-private property ownership badly, affected the flow direction of financial capital, the finance that destroyed a state runs a system, accord with criminal law the 192nd collects money 4 important document of crime of fraud namely sex of illegal sex, open sex, lure by promise of gain and sociality, should with collecting money crime of fraud convictions punishment. The charge that public prosecution mechanism charges is undeserved, should grant to correct; The behavior that the accused person puts forward its behavior not to form crime and paraclete to offer the accused person does not constitute crime of fraud, collect money of crime of fraud reach apologetic opinion to cannot hold water apologetically, do not grant to adopt. The others that judiciary of the impeach after Chen Zhifeng of the accused person is brought to justice has not master steals guilty fact, belong to via check solid, have make contributions show, but its collect money swindler blame causes particularly huge pecuniary loss to the injured party, cause effect of particularly abominable society, can't punish lightly. Accordingly, made on December 30, 2016 (the 79th criminal adjudicates the word at the beginning of 2015) spring punishment: One, Chen Zhifeng of the accused person makes collect money crime of fraud, sentence life imprisonment, privative politics right is lifelong, be in confiscate personal property all. 2, instruct Chen Zhifeng of the accused person to part pay compensation for what one has unlawfully taken the pecuniary loss of each the injured party is total one billion two hundred and ten million and forty-two thousand eight hundred and seventy-one yuan (detailed sees) of judgment subordinate list. The accused person is given auction lawfully by the sequestered, property that freezes on record, on record money sends auction money and distrain 15.08 million yuan to still give each the injured party in proportion.
After adjudging, chen Zhifeng of the accused person refuses to obey put forward to appeal, the Fujian Province is advanced people court made on May 9, 2017 (2017) Fujian punishment eventually 59 criminal ruling: Reject appeal, maintain original judgement.
Review analyse
This case not only experience record number is numerous, experience record amount is as high as 50 much, social influence range is wide, and in fact, qualitative wait for a respect to all be put in bigger dispute, what the court decision that the court makes finally changed public prosecution mechanism to charge charge is qualitative. Be opposite hard in judicatory practice just about collect money crime of fraud and the concentration that collect money to absorb the public leasehold dispute, illegally to distinguish correctly and be maintained deposit blame, crime of fraud are mirrorred. Below, the author is aimed at an influence the focal problem with this qualitative case spreads out an analysis.
One, the behavior of person of this case the accused is normal civilian leasehold behavior
Collect money bilk and folk are leasehold it is the financial orgnaization that does not approbate through the country and the fund that has by oneself is leasehold activity, both difference is the purpose differs. Collect money the has detinue for the person all right objective of bilk, the intent is permanent the investment money that has investor; Folk is leasehold it is the provisionality capital shortage that debt subject appears to make up for the respect such as production, life, return the behavior of principal and interest in the countervail inside conventional time. 2 it is objective expression differs, collect money the accrual of bilk acceptance often number is larger, usually, collect money what bilk behavior person wants interest rate of saving of the corresponding period of tower above bank to the accrual of investor acceptance is severalfold, ten times even a few times above. The bounds that although interest rate discretion is not to collect money,essence of leasehold dispute of bilk and folk distinguishs, but can serve as referenced basis. To collecting money person the empty usury rate that acceptance cannot cash apparently attracts investment, bring about investor principal finally not to have the case that return, can maintain commonly form collect money crime of fraud.
In this case, chen Zhifeng of the accused person without approval, lawbreaking code, it is bait with high return rate on one hand, use tear open east the wall fills on the west the means of the wall collects money illegally. The way that the accused person borrows with high interest of low interest borrow manages fund, use other capital to earn benefit difference, there is partial debtor to remand feebly during loan of a huge sum, below this kind of circumstance, the accused person fails to adopt positive step to recover money, take no account of its whether remand loan of a huge sum, still make however entice with sudden huge profits, continue outward loan repays early days debt and pay interest, get accredit to continue with this diddle capital, more people participate in diddle of according to legend of mouth of mouth of the person that perhaps collect money through these collect money, through tearing open east the wall fills on the west wall, borrow return newly old, collect money scale is larger and larger, deficit is larger and larger also, maintain the loop of accrual of this kind of high specified number finally feebly, capital catenary ruptures, cause huge pecuniary loss to the injured party. On the other hand with dummy loan fact, the means that conceals capital whereaboutldirection collects money illegally. To keep capital turnover, build the false appearance with actually abundant force, the accused person borrows business, fiction to be brook rock group to make packet of conduction bank outside fictional conduction memory business of loan have enough to meet need, fiction amounts to a company to deal with for Shen Lu financing is rented and impawn loan, fiction participates in contest to pat Xiamen 5, adopt dummy financing platform, to Wu Jun the several people such as new, Huang Zhenhui plan market fund. Accordingly, the accused person is bait with accrual of high specified number, disregard oneself repay ability, the fact that to the society not specific target collects money illegally is clear about use bilk method, evidence is sufficient, do not belong to collect money normally leasehold behavior.
2, the accused person is subjective is intended
Collect money crime of fraud and the common feature that admit public deposit guilt illegally depend on having the action that collects money illegally, but main distinction depends on: The first, the goal is different. Collect money the purpose of person of behavior of crime of fraud is for detinue of illegal collect capital, the purpose that law of and rather than admits public deposit guilt is to own the interest that public deposit place generates only; The 2nd, the method is different. Collect money person of behavior of crime of fraud is to take bilk step commonly, after diddle public trusts obtain illegally collect money paragraph, go up in specific means sometimes with absorb the public illegally similar or deposit crime is same, but just serve as the act that admits public deposit illegally among them one part, achieve the goal of detinue then. Although there often is practise fraud action on main body qualification, condition, program,law of and rather than admits public deposit guilt, but do not need to take beguiling step on the purpose that draws deposit; The 3rd, encroachment object is different. Collect money what crime of fraud encroachs is double object, namely the financial administration order with normal country and state-private property ownership. Law of and rather than absorbs what public deposit blame encroachs is the financial administration order with normal country only. Chen Zhifeng of person of the accused of the judgement in this case is subjective on have detinue intended, act on advocate the principle that agrees objectively, basically be from the following impersonal aspect reflects: One, itself of the accused person does not have economic base, without any management income, its oneself repay without economic actual strength high interest of a huge sum collects money paragraph; 2, the accused person is putting the case that management crisis appears during borrowing, take no account of collect money of the paragraph repay problem, still continue to collect money illegally for bait with high interest, bring about finally cannot return still collect money the result of the paragraph; 3, the accused person is used borrow return newly old, after payment of interest does not return capital, accrual to write down capital to serve as new capital, reimbursement, the refinance on the horse is answered wait for a method to keep capital chain, capital vicious circle, loan principal and interest expands ceaselessly, the loss that causes the injured party also is accumulated gradually; 4, the accused person is recorded without any individuals to capital pass in and out, personnel of its finance affairs just also records case of partial capital remit simply, capital of a huge sum does not have items of an account, memory of individual of person of support the accused and creditor view undertake profit allocation is mixed to Zhang, appear even collect money the condition that the person says how to much is; 5, the accused person is wanton and prodigal collect money paragraph, in Xiamen, south install and other places to purchase house property and value of car of a person of extraordinary powers 4000 much; 6, fall in dun of the injured party, the accused person shuts a mobile telephone, do not know a footprint, escape return return fund. On put together, chen Zhifeng of the accused person is lure trap the injured party to pay fund of a huge sum ceaselessly with embellish of high interest, usury have by its use, in pursueing the capital business course with high large-scale risk, know perfectly well oneself to return ability without countervail, deal with at will again other capital, after causing pecuniary loss of a huge sum to other abscond, should maintain lawfully to be a purpose with detinue.
3, this case should decide one blame or count a blame
The problem that the blame counts, also involve collect money the embroil in crime of fraud makes. Embroil makes is to show behavior realizes some to commit a crime artificially, its method behavior or result behavior offend again the guilty configuration of other charge. Its are basic the feature is: One of, behavior person carried out the behavior of the harm society of two above; Secondly, the jeopardizes a society behavior of two above offended several different accusation; Thirdly, the be in embroil inside existence concerns between the jeopardizes a society behavior of two above, namely among them method behavior or result behavior serve to realize basic crime. Collect money crime of fraud is belonged to barratrous model crime, fall victim object is not specific society masses. Accordingly, obtain to achieve collect money illegally the purpose of the paragraph, behavior person often can adopt various method, even leave no stone unturned drapes lawful appearance, and these gimmick, appearance often offended again other charge. For example, behavior person is undertaking fund raising in bilk process, for fiction fact or hide the fact, often should forge, falsification archives, certificate, seal, offended at the same time consequently collect money crime of fraud and forge, the accusation that blame of falsification archives, certificate, seal becomes independent twice. But, behavior person is forged, the behavior of falsification archives, certificate, seal is to be bilk to collect money of a service of this one end, cannot execute several blames consequently and punish, and can press only collect money crime of fraud and forge, one of blame of falsification archives, certificate, seal felonious conviction measurement of penalty, answer usually with collecting money crime of fraud convictions measurement of penalty, if have from heavy clue, from heavy punishment, if do not have other scenario, differ also want surely from heavy punishment. If go to be in for the person,forge, after falsification archives, certificate, seal, as a result of the reason beyond behavior person volition, arrive without diddle collect money of the paragraph, still should press one felonious conviction measurement of penalty. Affirmatory and felonious the standard that still is minor offence ought to be the degree of social harm sex according to behavior itself, is not the legal punishment of this pain that provides according to criminal law. Specific the degree that ought to analyse person of the reason that bilk fails to prevail, behavior to carry out bilk behavior. If go to be forged for the person, after falsification archives, certificate, seal, just undertake bilk is discovered namely fund raising, or cheat far from possibly collect money the paragraph, with respect to degree of social harm sex character, forge, action of falsification archives, certificate, seal is apparent overweight collects money bilk behavior, accordingly ought to in order to forge, blame of falsification archives, certificate, seal convictions punishment. Below the circumstance that the Chen Zhifeng in this case collects money to already formed external debt of a huge sum in early days high interest, know perfectly well high interest of insolvent a huge sum to collect money paragraph, for the continuance of capital catenary, adopt hide the fact, the beguiling method such as dummy financing platform continues to be bait with high interest and redound of high specified number ceaselessly from Wu Jun the person place such as new, Wang Changxiu collects money illegally, will collect money money share is used at debt of liquidate early days and accrual, the part is used at buying house property, car and individual prodigal, one of series behavior are complete continuance, because this answers,with collecting money one blame is opposite crime of fraud its undertake convictioning condemnatory. (writer unit: Court of intermediate people of city of state of Fujian Province spring)
