[Key words] criminal / contract fraud / innocent defense / conviction and exemption
[introduction of the lawyer in this case]
Geng LuHong, senior partner of Liaoning Tongfang law firm, head of criminal business department, legal adviser of Liaoning provincial government, and director of criminal Professional Committee of Liaoning Provincial Lawyers Association.
The main business areas are criminal defense, major and complex civil and commercial dispute resolution, administrative litigation and other legal work. He has rich case handling experience and was awarded the excellent lawyer of Liaoning Province in 2012-2013.
[referee points]
In the process of signing and performing the contract, the actor has no deception, no concealment, and has the ability to perform the contract, even if the contract cannot be fully performed, it should be handled as a common law contract dispute, and should not be deemed to constitute the crime of contract fraud.
[basic case]
On July 3, 2015, the defendant Li was detained by Haicheng Public Security Bureau for suspected fraud. On July 31, 2015, he was released on bail by Haicheng Public Security Bureau. Later, on November 2, 2016, the people's Court of Haicheng City decided to arrest him. Haicheng Municipal People's Procuratorate accused the defendant Li Mou of committing contract fraud with the indictment (2016) No. 244 and filed a public prosecution with Haicheng Municipal People's court. The people's Procuratorate of Haicheng City accused: the defendant Li Mou, in the Oriental silk market, Shengze Town, Wujiang District, Suzhou City, Jiangsu Province, from June 27 to August 23, 2014, without actual ability to perform, falsely used the identity of the general manager of Liaoning Haicheng municipal and material Trade and distribution Co., Ltd., and orally agreed a contract with the victim Lei Mou in the name of "Li Kai", By means of cash on delivery, Lei was defrauded to deliver 3000 fabrics and 270t Chunya textile fabrics of various colors of honey to the defendant Li for six times. The defendant Li fled after receiving the goods paid by Lei. According to the price appraisal of Haicheng Price Certification Center, the value of all kinds of honeycomb coated white 3000 fabric and 270t Chunya textile fabric is 337172.5 yuan. Haicheng Municipal People's Procuratorate believes that the defendant Li Mou, for the purpose of illegal possession, defrauded the other party's property in the process of signing and performing the contract, and the amount was especially huge. His behavior violated Article 224 (1), (3), (4) and (5) of the criminal law. The facts of the crime are clear and the evidence is indeed sufficient, and his criminal responsibility should be investigated for the crime of contract fraud.
[judgment result]
First instance: I. The defendant Li was sentenced to five years' imprisonment and a fine of 50000 yuan for committing contract fraud; 2、 Continue to recover the defendant's illegal income and return it to the victim.
Second instance: cancel the original judgment and remand it for retrial.
After remanding for retrial, the defendant Li was sentenced to five years' imprisonment and a fine of 50000 yuan for committing contract fraud; 2、 Continue to recover the defendant's illegal income and return it to the victim.
After remanding for retrial, the defendant Li committed the crime of contract fraud and was exempted from criminal punishment.
[lawyer's opinion]
The case alleges that Li is suspected of contract fraud with unclear facts and insufficient evidence.
1、 The defendant has no subjective purpose of illegal possession and has no subjective intention of contract fraud.
According to the provisions of our criminal law, the subjective aspect of the crime of contract fraud can only be intentional, and has the purpose of illegally occupying public and private property. If the perpetrator has no intention of fraud, but due to various objective reasons, the contract cannot be performed or the debt owed cannot be repaid, he cannot be punished as a contract fraud crime. If the defendant has the subjective intention of fraud, he will certainly take the means of concealing the truth to conceal the real information and clues of his own purchase, so that the other party can not find himself, so as to achieve the purpose of illegally occupying the goods.
However, in this case, the defendant contacted the victim Lei through the real mobile phone number and wechat, and after receiving the goods, the defendant transported them to Nantai prison for processing, the clothing products and semi-finished products processed with the materials involved before and after the case were all present, the defendant did not sell at low prices to realize extravagance, the mobile phone has been used normally, and there is no concealment. All these can prove that Li has no objective of illegal possession, There is no intention to deceive or defraud property. From the judicial practice, the actor did not cheat in the process of signing and performing the contract. Even if the contract could not be fully performed, it could only be handled as a contract dispute and could not be convicted of fraud.
2、 According to the legal definition and situation of the crime of contract fraud in article 224 of the criminal law, compared with the facts of this case, this case should be an ordinary contract dispute, and the behavior of the defendant Li does not constitute the crime of contract fraud.
Economic contract dispute refers to that the actor has the sincerity to perform or basically perform the contract, but fails to fully perform the contract for some reason, or during the performance of the contract, one party intentionally violates a certain clause of the contract, causing the other party to suffer losses, thus causing disputes between the parties on the rights and obligations agreed in the contract.
Contract fraud refers to the act of making up facts or concealing the truth in the signing and performance of a contract for the purpose of illegal possession to defraud the other party's property in a large amount. That is, in one of the following circumstances, the crime of contract fraud is constituted by cheating the other party's property and large amount in the process of signing and performing the contract for the purpose of illegal possession:
(1) Signing a contract in the name of a fictitious unit or in the name of another person;
(2) Using forged, sold or invalid negotiable instruments or other false certificates of property rights as security;
(3) Having no actual capacity to perform, enticing the other party to continue to sign and perform the contract by performing the small amount contract first or partially performing the contract;
(4) Escaping after receiving goods, loans, prepayments or guaranteed property from the other party;
(5) Defrauding the other party's property by other means.
This case belongs to an ordinary economic contract dispute, and the defendant Li's behavior does not meet the legal definition of (1) - (5) above:
First of all, the defendant Li has the actual ability to perform: the defendant's failure to pay the payment was due to the victim's delay in delivering the cloth for more than one month, which led to Li's failure to process the clothes on time, resulting in a backlog of goods and no turnover of funds. Therefore, he temporarily failed to pay Lei. Li also informed Lei of this situation. During this period, there was a balance of bank cards under the name of Mr. Li. There was also a grey Chevrolet car under his name and 69 machines and equipment of Dashiqiao steer Clothing Co., Ltd., which he actually operated, with a value of 207530 yuan.
Secondly, the defendant Li did not use the identity of "general manager of Liaoning Haicheng municipal and material Trade and Distribution Co., Ltd." or sign the contract in the name of "Li Kai": Liaoning Haicheng municipal and material Trade and Distribution Co., Ltd. was contracted by Li, In the contract signed with Li Huajie, the legal representative of the company, it is agreed as follows: "during the contract period, the defendant has the right to take full responsibility for the operation and management of the company within the scope permitted by national laws and regulations, and to exercise all production and operation management functions and powers". Therefore, the defendant actually controls Haicheng municipal and Trade Distribution Co., Ltd. during the contract period and has the authority of the general manager. From September 23 to October 2, 2013, in the capacity of general manager of Haicheng municipal and material Trade and Distribution Co., Ltd., Li went to Russia to participate in the clothing exhibition in Russia organized by the Department of foreign trade and economic cooperation of Liaoning Province. The defendant did not use the identity of the company's general manager to defraud Lei's goods.
Regarding the conclusion of the purchase contract in the name of Li Kai: Li Kai is the name used by Li from childhood to childhood. Later, his father Li xuku changed Li Kai's name to Li and changed the household registration book. Later, Li still used the name Li Kai in his daily life. Li Kai's name was not invented by the defendant when he purchased goods from Lei. It was an alias commonly used by the defendant in his life and work. Moreover, the name used by the defendant when signing the above-mentioned contract for contracted operation is Li Kai. Therefore, the defendant did not intentionally use a pseudonym to enter into a contract with Lei to defraud goods, and there was no case of using the name of "Li Kai" to defraud goods from Lei.
Thirdly, Li does not have the behavior of "escaping and hiding": through the investigation of the monthly communication consumption of the mobile phones under Li's name from September 2014 to June 2015, and the testimony of other witnesses, it can be seen that Li has never had a long-term shutdown, shutdown, unable to contact, and can actively cooperate with the investigation when summoned by the public security organs. There is no case of escaping and hiding after receiving the goods of Lei.
Finally, Li does not have the behavior of "defrauding property by other methods": Li does not use any method to defraud Lei's goods, so there is no behavior of "defrauding property by other methods". The "other methods" mentioned in the above provisions can only be applied according to the express provisions of other laws, otherwise the subjective presumption of guilt cannot be made out of thin air.
This case should be an ordinary contract dispute, but the defendant was accused of contract fraud by the procuratorate. After accepting the entrustment of Li's family in the second trial stage, we first read the files in detail and actively communicated with Anshan intermediate people's court. Anshan intermediate people's court made a ruling to send the case back to Haicheng people's court for retrial, which won the opportunity for the parties to accept the trial again and achieved phased success.
After the retrial, we started with the constituent elements of the contract fraud crime and the difference between the contract fraud crime and the ordinary contract dispute. On the basis of the comprehensive evidence materials of the whole case, we expounded in detail the viewpoint that Li did not constitute the contract fraud crime. However, the Haicheng people's court still made the guilty judgment that Li committed the contract fraud crime and was sentenced to five years' imprisonment. After the case was appealed to Anshan intermediate people's court, we still insisted on defending Li's innocence. During this period, we communicated with the judge many times and stated our views to him. Finally, Anshan intermediate people's court made a judgment of conviction and exemption.
The highlight of this case is that it lasted two years. Through our unremitting efforts and persistence in the three stages of second instance, first instance after remand for retrial and second instance after remand for retrial, we finally obtained the judgment result of conviction and exemption for the defendant.