With the success of the crime of amount of Defense

             -- Qi and contract fraud

Introduction and case by case 

This case was the Ministry of public security to supervise the handling of large series of contract fraud.2012Years5Month14Day,AProvincial Public Security Department statement of the case, the case involved200Yu victims, the amount of money involved1200Yu Wanyuan, Co16The suspects were arrested.2012Years5Month23Day, the public security organs shall be the case transferred for examination before prosecution, the criminal suspect and the Qi635Million yuan.

2012Years11Month28Day, Anhui golden Asia Pacific law firm commissioned this case crime suspect Qi certain relatives, assigned me as his lawyer.2013Years1Month30Day, the defender of the case twenty-six of the total copy thousands of pages of the file material. Found in the inspection and statistics in this case all the files, the public security organs to the joint report, statistics of Qi and the petition materials635Million yuan. So the counsel to the procuratorial organs, should according to the contract or invoice and other documentary evidence that the amount of crime, and to submit a detailed "suspected of crime statistics", the amount shall be4349420Element.

2013Years3Month21Day,BThe city's Procuratorate prosecution of the case, took counsel prosecution opinion at the stage of review, the Qi and the amount from the635Million yuan change as defenders statistics434Million yuan.2013Years5Month6Day,AProvince Lawyers Association punishment committee this case "demonstration held the contract fraud crime" salon, and two invited Professor of law in.2013Years5Month20Day, the trial, counsel to the major defense opinions:1In this case, the victims' statements are indispensable evidence, only the statement of the victim, contract, payment voucher to confirm each other toDetermination of the crime amount;2,After deducting the cost of crime from the amount of crime;3Elements, the defendant does not conform to the contract fraud crime. The inspectors to the first point defence in court approval.

2014Years1Month14Day, the verdict, the court of first instance take counsel "statement of the victim is essential for determination of the crime of fraud evidence" and "deduction" from the amount of crime in the crime cost point of view, the "Qi does not constitute the crime of contract fraud" opinion shall not be accepted, so that Qi a cheat289Million yuan, sentenced to twelve years in prison, so that other defendants; XXX, XXX, summer after Xu x, sun all cheat413Million yuan,296Million yuan,174Million yuan,270Million yuan, and were sentenced to imprisonment for thirteen years, twelve years, eleven years, twelve years. Qi Moumou appeal. 

This case got better defense effect, the first defendant Qi Moumou crime amount from the prosecution at635Million yuan reduce to the court of first instance found289Million yuan, the sentence is consistent with several other defendants.

Defense

(2012Sub law punishment) No.105No.

The presiding judge, judge:

Anhui golden Asia Pacific law firm accepts the defendant Qi a commission, appointed us as the investigation, prosecution, trial counsel, to participate in the case according to law. In all the files to the case after, the defender believes the case facts of the crime is still not clear, and the defendant Qi so legally the behavior does not constitute the crime of contract fraud, the detail is as follows, please the collegial panel considered.

A, accused the prosecution of Qi and the facts of the crimeNo evidenceIndeed, the fullStandard of proof

China's "Criminal Procedure Law" provisions of the standard of proof is "guilty evidence, fully","The evidence is reliable and sufficient, the applicant shall meet the following conditions:(A)The conviction and sentencing facts have evidence;(Two)According to the verdict evidence are verified by the statutory procedures;(Three)Comprehensive evidence of the case, the fact is beyond reasonable doubt". Prosecutors charged Qi XYZ "property for the purpose of illegal possession, to join the agency business name, fictional facts, conceal the truth, for the victim's property,... Involved in fraud5Second, cheat4349420Yuan ", the defender thinks the prosecution facts are not clear and the evidence is insufficient, and attach the statistical tables in the statement of defense, the collegial panel for reference.

(a) statement of the victim is indispensable to identify contract fraud evidence

According to China's criminal law theory, the crime of fraud (generalized fraud) basic structure: the perpetrator to commit fraud, the other (dupe) have (keep) the wrong understanding, each other understanding error disposal of property, behavior person or third based on the acquisition of property, the victim suffers the loss of property.[1]Therefore, to set up the crime of fraud, deception (accomplished) shall be the dupe into or continue to understand error, then the automatic delivery of their property; otherwise, if the victim does not recognize the existence of errors, even if the delivery of the property, can't constitute crime of fraud. Therefore, understanding error victim is an independent factor constitute fraud crime. In the criminal procedure, victim statement is a direct embodiment of the victim's mistake most significant evidence. According to the case, statement of the victim and victim reporting materials can be identified the victim of false evidence material. The defender according to the evidence material statistics, at least9"Victim" prosecutors did not provide any evidence to prove the existence of the error of cognition, and part of the "victim" didn't think they were cheated, such as the "victim" Pei country statement:"... Our products are sold to acquaintances... Sell out, no one response to quality, I don't have to Dell firm contacted"[2]The basic structure of the case, so not part of facts is to fraud beyond reasonable doubt.

(two) the amount of crime cannot be determined because of insufficient evidence

On the crime of swindle (here for the generalized fraud crime amount theory), mainly has the following several points: "subjective theory" that the fraud amount is the subjective hope deceived amount; "tax" that fraud amount refers to the fraud through the implementation of fraud and property amount; "delivery" that fraud amount is the victim because the deceived and the actual delivery of the amount of property; "violation" that fraud amount is not my own income, the value of the actual loss but fraud direct violation of others; "double standards", that the amount of different forms of crime fraud crime should adhere to different standards, namely in the case of accomplished crime of fraud,Fraud amount is the actual loss amount of propertyAttempted crime; in the case of fraud, fraud amount is the subjective desire property amount. In the judicial practice,Theory of "double standards", such as that the Supreme People's court to answer "mailbox" judicial "Lee fraud", for fraud and pre paid rent, deposit can be deducted from the amount of fraud.[3] The defender believes in the accomplished crime of fraud cases, the cost of crime should be reduced in the amount of crime, because the victim's actual loss of interest is a crime against the legal interests of the. According to the principle of unification of subjectivity and objectivity, and to determine the amount of crime of the accused is more objective, accurate conviction and sentencing.

According to the case, the procuratorial organs according to contract the amount of aggregate this case amount to4349420Million yuan. Defenders argue that the procuratorial organs involved solely on the basis of total amount of the statistics of the subject of the contract is not true, the reasons are as follows: first, there is no performance or partial performance of the contract situation. If the "victim" Ke narrow Chang stated: "I am in the2009Years cheated2000Element... A contract subject to full payment30800Element... I'll go home for money to send back, then my mom got sick I will use the money to my mother to see a doctor "[4]"Victim"; Chen Qingjun confessed: "ask: in addition to3000Yuan Dingjin, the contract of the tail section27800Did you give Smith Intelligent Machine Co. Ltd? Answer: not handed over the tail section"[5]. Thus the contract only with the relevant payment voucher to confirm each other in order to prove that the "victim" actually paid the corresponding amount, and proof of payment according to the invoice can be recorded in the payment amount or the "victim" issued by the company to provide a receipt to be determined. "Victim" money actually paid only with the statement of the victim, contract and payment vouchers this three aspects of evidence and to confirm each other to form a complete system of evidence (The public prosecutor in the published public opinions, the approval of the views and suggestions the court will not the victim stated the amount deductedAccording to the standard), the defender, the reporting materials is equivalent to the statement of statistics,The actual amount paid for3190200ElementIf the deduction, jointly charged the amount involved, the amount is Qi XX court confession, probablyYes200Million yuan.[6]Second,According to the statement of the victim, part of "victim" has sold products in whole or in part, of unsold products are still the "victim" actual possession.Although the procuratorial organs do not provide evidence that the product value, but the defendant after the permanent front have testimony product purchase price "for each50Yuan Qi "; and each trial confession198Yuan.But the important fact that a product price, never included in the scope of the investigation. Third, according to the relevant documentary evidence to incomplete statistics, the company also sent21"The victim"A total of167Product as the distribution, advertising fees in return some of the "victim" to pay the margin.So in this case, the "victim" surplus product quantity, value, deposit refund the amount and the "victim" the final actual losses are not clear.

(three) in the case of "money" to have failed to find the

The public security organs in the investigation of evidence in the case to spend enormous human and material resources to investigate the "victim", and evidence of the case about the company's "money" to have a serious shortage of. "For the purpose of illegal possession" is one of the subjective elements of liability of contract fraud, determining whether has the purpose of illegal possession, shall adhere to the principle of subjective and objective consistent principle, should avoid loss results in objectivity, not only by the defendant own confession, and shall, according to the specific situation of the case analysis. The behavior of property disposal way is that "for the purpose of illegal possession" important aspect, under different psychological states, of the subject matter of the contract management will be different,People will cheat property for personal consumption, the illegal business, to repay, non operating expense and so on, can generally be identified behavior person has the purpose of illegal possession; for the behavior will cheat money for the actual business activities, and made the fund objectively unable to return, not to contract fraud conviction and punishment.[7]In this case, toBCity Dell intelligent electric appliance Limited company (hereinafter referred to as the Dell company) as an example, the company involved in the contract1468890Element (see the indictment, the prosecution of submissions for1397190Yuan), and each sold to dealers298Yuan product price need50-198Element, and the company is also required to pay the cost of rental housing and high-grade office buildings, large advertising company staff salary and commission, buy network, customer information costs and other expenses etc..[8]The defender not statistics for business proportion have possessions,But according to the Winhonour confession: "I takeBCity Dell intelligent electric appliance Limited company is20%"," I've got5,6Million yuan"[9]The company, share80%Shares of the Qi and at most can only be assigned to20Million yuan.But the defender at the meeting, the Qi Moumou also said he did not share a lot of profit from the company, some companies have a loss, so we can infer the Qi and actually most property for the company's operations, so not only according to the related case person confession and "victim" statement to infer the illegal possession of the contract sum objective subjective.

Two, the defendant Qi so legally the behavior does not constitute a contract fraud

Provisions on the crime of contract fraud in criminal law in our country is to prove guilt, and belongs to the Open Constitution of crime. The defenders think Qi such behavior does not accord with the objective situation of the provisions of the constitution, and to open out terms in the element of interpretation, legal explanation required subject and procedure, so on the basis of the principle of legality strictly, Qi so legally the behavior does not constitute a crime. Qi X has fulfilled the main obligations of the contract, according to the principle of restraining criminal law, also should not be considered a crime.

(a) does not meet the objective the objective elements of crime of contractual fraud

The criminal law of our country stipulates clearly that the 224th, "one of the following circumstances" behavior constitutes the crime of contract fraud. This article lists the contract fraud crime four kinds of objective circumstances and miscellaneous provisions. In the process of conviction and sentencing is actually logical reasoning process of a syllogism, only when the specified objective behavior and Qi with the provisions of the criminal law to constitute the crime, apparently Qi of certain behaviors in this case does not conform to the provisions of the circumstances listed in. The first involved5Company is established in accordance with law, Qi x, the signing of the contract is to set up their own company name, do not meet the "criminal law" the 224th paragraph 1 "in the fictional units or infringe upon the contract in the name of". Secondly, so in this case does not provide any warranty, not in line with the second "to guarantee the forged, altered, or invalid negotiable instruments or other false certificates of property rights as". Again according to the "victim" statement shows, Qi X in the contract after the timely, full delivery, is not in line with the third "no actual ability to perform, to fulfill the contract or small part to perform the contract, the other party to continue to sign and fulfill the contract". Finally, a no fourth "from the opposite party goods, payment, advance payment guarantee property or go into hiding after". In the process of legal argumentation of this case, Qi and acts as the minor premise, not in conformity with the objective elements of the crime of contract fraud this premise, therefore unable to draw Qi so committed crime of contract fraud conclusion.

The local judicial authorities have no right to reveal the provision "to cheat the other party property by other means" to explain, in the modern country under the rule of law, on the Open Constitution fallback provisions elements in the explanation, only the highest legislative and judicial explanations to law. Scholar Chen Xingliang have the following argument, "justice is based on existing law is the premise of deductive logic, it cannot be questioned the law, you can't blame the law, but can only be established law applicable to the case. If justice can not by laws, but by the judiciary will as the case on the basis of the conviction and sentencing, and outside the law, so the criminal law will be all gone".[10]The people's court in the trial of the case if the specific to general provisions of interpretation, and so as the conviction and sentencing of the accused basis, will violate the principle of legality is the most basic. Therefore, the objective elements of this case Qi such behavior does not accord with the crime, does not constitute a crime according to law.

(two) in the case of Qi and has fulfilled the main obligations of the contract, and the product has the effect of the publicity

The Supreme People's Court on limits of civil fraud and contract fraud has the following viewpoints: for a certain capacity, with some fraudulent means for it to sign a contract, but is not subjective purpose of illegal possession, but in order to pass the contract signed, profit, and positive performance behaviors, timely and objective cause the other party property damage, but also through the civil relief way, not to pursue the criminal responsibility of the parties.[11]We can know from the evidence in this case, the company delivered the money in a "victim" after the timely delivery.In the case of the so-called "agent contract" is the essence of business contract, one party to pay the price, on the other side of the delivery of the goods, the most important is the rights and obligations of both parties."Victim" stated the company did not help them to promote their products and other support activities or not to return only should be a kind of collateral obligation or liability for breach of contract. AndAccording to the case of the product testing report shows that the product has certain sterilization, clean water, removal of pesticide residues and other effects, "victim" of product efficacy is sure,Zhao Yazhou statement:"... The performance of products is the sterilization, disinfection, removal of pesticide residue goods, products have the function of..."[12]. In addition, according to theGuangdong Province issued by industrial products production license office proved that, "the case of the products included in the scope of production license, do not belong to unlicensed products".[13]So in this case although there are false propaganda, but Qi so actively fulfilled the main obligations of the contract, and the subject matter of the contract has the propaganda effect, so the case should be defined as civil fraud.

(three) based on the principle of modesty of criminal law, this case should not be considered a crime

"Even if the acts or threats to the interests of others, not to direct the use of criminal law. If possible, by other means of social is the most ideal. Can say, only in the other social regime is not sufficient, or other social rule means (such as lynching) is too strong, have replaced by criminal law is necessary, only

Can the use of criminal law, this is the criminal supplementary or modesty."[14] Non crime is an important manifestation of the modesty of the criminal law, i.e. an act if it can effectively use civil law, administrative law and regulation, should not apply the criminal easily, because the criminal law is to protect legal interests the last line of defense, "had been the". According to the case discussion:

First of all, the victim of Qi and behavior whether to belong to fraud exists different understanding. Some "victim" did not think of themselves,As Zheng Jinliang stated: "I will be part of a healthy net kitchen is sent to the client, I don't know if there are quality problems... I was engaged in decoration industry, every time after renovation, I would give the customer a..."[15]The motherland, Pei statement:"... Our products are sold to acquaintances... Sell out, no one response to quality, I don't have to Dell firm contacted"[16]. Due to the limitation of ordinary family life, in this case the product function concept has not been accepted by most families, the sales of such products exist great risk, the "victim" should also be able to reasonably predict in the initial choice. It is not because products can not be sold in the objective and investigated for criminal responsibility. Qi.

Secondly, the products sold to resellers price did not significantly exceed the price. Defense query in the case of similar products in physical stores and shop,The prices of similar products found in hundreds of yuan to one thousand yuan[17]Qi x, sold to the "victim" products price298Yuan per unit, (Beauty298Yuan, Royalstar405Element,Did not significantly exceeded the market price of products, such as the Zhao Yazhou statement:"... The market of ozone disinfection machine between two hundred to three hundred, the Kohler Co sold disinfection machine we also value of the price ", so this did not significantly exceed the price sale can not be identified as fraud.

Again, in practice, the false propaganda behavior many have not been identified as contract fraud. Such as the recent CCTV news exposure of the "Da Vinci" of furniture originally is the authentic domestic products, because to be shipped abroad and then shipped back home, he claimed to be imported, sold at high prices, some piece of furniture and even the price of hundreds of thousands of yuan. Compared to the case, Da Vinci case of larger scope, nature more illegal interests, the more bad, but Da Vinci only subject to administrative punishment. But in the market of similar enterprises such false propaganda beyond count, such as Leonardo, Montagut, crocodiles and many other international brands are false propaganda fraud, has not been investigated for crimes, if the case was identified as the contract fraud violates the principle of equality before the law. In addition, but not because of Qi and to the "victim" has caused the losses and unable to compensate for the loss that the crime, otherwise it is a kind of objective imputation of.

Four.According to the unified law applicable, Qi of certain behaviors should not constitute the crime of contract fraud

2010Years, and this case company's establishment and operation mode of the sameBSakura water purification technology Co., Ltd. (hereinafter referred to as Sakura) of the responsible persons beBCityCDistrict People's court sentenced the crime of contract fraud, but the second wasBCity Intermediate People's court to the crime of false advertising.BCity Intermediate People's court commuted the reason is: the first, Sakura is legally established, timely delivery to sign an agency contract process, there is the performance of the contract situation. Second, Sakura and behavior responsible person does not meet the five kinds of objective circumstances enumerated crime of contract fraud in criminal law. Although China is not the case law countries, butBCity Intermediate People's court in the case of the judgment shall be amended according to reason can fully applicable to the case. So according to the unity of application of law, not to contract fraud to sentencing convicted Qi x et al.

In the contract, in the course of the performance, the two parties of the contract should be honest and credit, but in the early stage of the market economy, the whole society is full of false advertising. In the case of these young entrepreneurs, may fall into a wrong path, a shortcut to get rich intention, many with similar entrepreneurial dreams of joining has brought the economic and spiritual loss. The defender hopes that the court of first instance can be based on the legal principle of crime and punishment strictly, the conception of criminal law abandon objectivity, differentiate between this crime and other crime, in this case the accurate conviction and sentencing to the defendant, Qi x a fair judgement.

                       Defenders: Wang Yalin

                   2013-5-20

Attached: "this case statistics" amount a

Case analysis

China's "criminal law" the fifty-third stipulation: "of all cases are to be sentenced to the weight of evidence, investigation and study, not credulous. Only the accused confessed, no other evidence, not the defendant is found guilty and sentenced to a criminal punishment; without the confession of the accused, the evidence is reliable and sufficient, can the defendant is found guilty and sentenced to a criminal punishment. The evidence is reliable and sufficient, the applicant shall meet the following conditions:(A)The conviction and sentencing facts have evidence;(Two)According to the verdict evidence are verified by the statutory procedures;(Three)Comprehensive evidence of the case, the fact is beyond reasonable doubt ", therefore, in this case basis to confirm each other contract, statement of the victim, the payment voucherDetermination of the crime amount to the standard of beyond reasonable doubt. In addition,In his defense of the amount committed, as far as possible to reduce the amount of crime to the very important effect on the final sentencing play.