Outstanding cases of Yang Xingquan and Du Yuanyuan: Weng Mingchuan's crime of il

Release Time:：2020-12-25    Source：    Author：Yang Xingquan Keywords: bank employee; Crime of issuing financial bills in violation of regulations
[introduction of the lawyer in this case]: Yang Xingquan, Secretary of the Party committee and director of Liaoning Tongfang law firm, national excellent lawyer, currently serves as the president of Liaoning Provincial Lawyers Association, the president of Liaoning Provincial Lawyers Association of the Communist Party of China, the Deputy Secretary of Liaoning Provincial lawyers Industry Committee of the Communist Party of China, and the representative of Liaoning Provincial People's Congress.
Lawyer Yang Xingquan's main business areas are domestic arbitration and litigation business and criminal business, and he has provided high-quality legal advisory services to more than 100 enterprises, institutions and institutions.
Du Yuanyuan, practicing lawyer of Liaoning Tongfang law firm
[key points of judgment]: Weng Mingchuan, as a bank employee, is not the drawer of the bank acceptance bill when handling the specific business of the bank acceptance bill. Instead, he conducts the acceptance of the bank acceptance bill on behalf of the bank and as the acceptor, which does not meet the constitutive requirements of the crime of issuing financial bills in violation of regulations and does not constitute the crime of issuing financial bills in violation of regulations.
Weng Mingchuan is a developer and decision maker of non factoring business. When handling bank factoring business, he is only responsible for handling the factoring business formalities as required by the head of the institution. Under the condition that he has fulfilled his duty of care, the court cannot take him as the business undertaker. He should do his duty to standardize business operations, prevent financial risks, and ensure that the implementation of various businesses complies with the relevant provisions of laws and regulations and risk control, It is determined that it constitutes the crime of issuing financial bills in violation of regulations.
[basic facts]:
In October 2012, Zhao Jianhua of Anshan Branch of China CITIC Bank developed the credit business of Jianping company in Anshan Branch of China CITIC Bank and personally handled the first phase factoring business. In December 2012, Zhao Jianhua served as vice president and presided over the work of Zhanqian sub branch of Anshan Branch of China CITIC Bank. In April 2013, the first phase of factoring business expired. After Jianping company performed the contract on schedule, Zhang Rong of Jianping company indicated to Zhao Jianhua that it would handle the second phase of factoring business. When Cui Haiyan of Dalian Trading Company clearly informed that he did not agree to continue to cooperate with Jianping company, Zhao Jianhua, at the request of Zhang Rong, provided Jianping company with two receipts with the official seal of Dalian Trading Company, the year of 2012 and the rest blank, obtained in the first phase of factoring business, and instructed Weng Mingchuan to handle the second phase of factoring business, When Weng Mingchuan informed Jianping that the receipt provided by Jianping company had been altered, Zhao Jianhua did not truthfully explain that he provided blank receipts to Jianping company and Zhang Rong without authorization. When Dalian Trading Company verified whether it was necessary to affix official seals to Zhang Rong's first phase factoring business receipt, he helped Jianping company and Zhang Rong cheat Dalian Trading Company to affix official seals on the receipt and instructed Weng Mingchuan to continue to handle factoring business. Weng Mingchuan did not know that Xiao Jianping company, Zhang Rong and Zhao Jianhua cheated the bank in the process of handling factoring business, nor did he conspire with Jianping company, Zhang Rong and Zhao Jianhua to defraud the bank acceptance bill. He reported to Zhao Jianhua in a timely manner after finding that the receipt was altered, and handled the issuing procedures of factoring business according to Zhao Jianhua's instructions. After handling the second phase factoring business, Zhang Rong discounted all the bank acceptance bills and used them for Jianping company. After deducting the advance deposit, he actually possessed 95 million yuan. On October 22 and 24, 2013, the repayment period of the second factoring business expired, and Jianping company failed to repay the amount. The Shenyang Railway Transportation Intermediate Court sentenced Weng Mingchuan to three years' imprisonment and five years' probation for the crime of illegally issuing financial tickets. Weng Mingchuan refused to accept, and entrusted lawyers Yang Xingquan and Du Yuanyuan of the office to defend his innocence. After trial by the Liaoning Provincial Higher People's court, Weng Mingchuan was finally found innocent.
[judgment result]: Weng Mingchuan was found not guilty
Reason for judging: as a bank employee, Weng Mingchuan handled factoring business for Jianping company and Zhang Rong according to the arrangement of the head of the institution, the developer of factoring business and Zhao Jianhua, who was not aware of the deception of Jianping company, Zhang Rong and Zhao Jianhua against the bank in advance, reported to Zhao Jianhua in a timely manner after finding that the receipt was altered, and continued to handle the issuing procedures of factoring business according to Zhao Jianhua's instructions, His behavior belongs to the performance of duty, and the head office of China CITIC Bank also confirmed that his behavior is not in violation of regulations, so Weng Mingchuan's behavior does not constitute the crime of issuing financial bills in violation of regulations.
[relevant provisions]:
Criminal law of the people's Republic of China:
Article 188 any employee of a bank or other financial institution who, in violation of regulations, issues letters of credit or other letters of guarantee, negotiable instruments, certificates of deposit or credit certificates for another person, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than five years.
Where a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the persons who are directly in charge and other persons who are directly responsible shall be punished in accordance with the provisions of the preceding paragraph.
Criminal Procedure Law:
Article 236 the people's Court of second instance shall, after hearing a case of appeal or protest against a judgment of first instance, handle it according to the following circumstances:
（1） If the original judgment is correct in ascertaining the facts and applying the law, and the sentencing is appropriate, it shall rule to reject the appeal or protest, and maintain the original judgment;
（2） If there is no mistake in the original judgment in finding the facts, but there is an error in the application of the law, or the sentence is improperly meted out, the judgment shall be revised;
（3） If the facts in the original judgment are not clear or the evidence is insufficient, the judgment may be changed after the facts are ascertained; It may also rule to cancel the original judgment and remand it to the people's court that originally tried the case for a new trial.
If the defendant files an appeal or the people's Procuratorate files a protest after the people's Court of first instance makes a judgment on a case remanded for retrial in accordance with Item 3 of the preceding paragraph, the people's Court of second instance shall make a judgment or order according to law and may not remand the case to the people's Court of first instance for retrial.
[lawyer's opinion]:
Weng Mingchuan's behavior does not meet the constitutive requirements of the crime of illegally issuing financial bills, so it does not constitute the crime of illegally issuing financial bills. The specific defense opinions are as follows:
1、 Objectively, Weng Mingchuan did not issue financial bills in violation of regulations.
Article 188 of the criminal law of the people's Republic of China stipulates: "Any staff member of a bank or other financial institution who, in violation of regulations, issues letters of credit or other letters of guarantee, bills, certificates of deposit or credit certificates for another person, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; if the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than five years. If a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the persons who are directly in charge and other persons who are directly responsible shall be punished in accordance with the provisions of the preceding paragraph. ”
Weng Mingchuan's performance of the company's duties is completely legal and compliant, and does not have the above-mentioned constitutive elements of the crime of issuing financial bills in violation of regulations. Weng Mingchuan does not have the final right to review the materials for issuing bank acceptance bills, nor does he have the authority to issue bank acceptance bills, and Weng Mingchuan does not actually issue bank acceptance bills. Therefore, Weng Mingchuan does not constitute the crime of issuing financial bills in violation of regulations.
（1） Weng Mingchuan performed his duties legally and legally. His performance of his duties fully complied with the legal provisions of the contract law, did not violate the bill law and other financial laws and regulations, and also strictly complied with the internal management regulations of the bank such as the administrative measures of China CITIC Bank for domestic factoring business, and there was no violation of laws and regulations.
（2） Weng Mingchuan does not have the final right to review the materials for issuing bank acceptance bills, nor does he have the authority to issue bank acceptance bills, and Weng Mingchuan does not actually issue bank acceptance bills. Therefore, Weng Mingchuan does not constitute the crime of issuing financial bills in violation of regulations.
2、 On the subjective side, Weng Mingchuan has no subjective intention, no fault, no criminal purpose and motive, no conspiracy and no intention to commit the crime of illegally issuing financial bills. Weng Mingchuan does not constitute a crime.
（1） Weng Mingchuan has no subjective intention or fault in the crime of illegally issuing financial bills.
The real contractor of the factoring business is Zhao Jianhua, the president. The customer relationship is Zhao Jianhua's, and the whole business process is also controlled by Zhao Jianhua. Weng Mingchuan's collection of materials is only a tiny link in many links of the business process and cannot play a decisive role in issuing bank acceptance bills. Weng Mingchuan does not know the customer's contact information at all, nor has he contacted anyone on the customer side, The client has no one to connect with Weng Mingchuan. The first phase of the business is also handled by Zhao Jianhua, and the whole business process is also controlled by Zhao Jianhua. Weng Mingchuan cannot contact the substantive business or the customer, and has no subjective intention of illegally issuing financial bills.
（2） Weng Mingchuan has no criminal purpose and motive, no conspiracy and no criminal intent.
The judgment of the first trial held that "Weng Mingchuan has the intention of illegally issuing for the sake of his unit and his own performance." Weng Mingchuan does not have the criminal purpose and motive for the unit and his own performance. The performance of Zhao Jianhua and Weng Mingchuan in handling this business as determined in the first instance judgment is 40% and 60%, completely confusing the concepts of business commission, business reward and normal workload. All employees of CITIC Bank know that it is the practice to handle factoring business. The so-called "performance" in the first trial judgment is not a business commission or business reward at all. Weng Mingchuan does not have the criminal purpose and motive of "for the sake of the unit and his own performance".
The judgment of the first trial held that "Weng Mingchuan and Zhao Jianhua did not conspire in advance." According to Zhao Jianhua's confession, Zhao Jianhua always admitted that there was no prior collusion with Weng Mingchuan. Weng Mingchuan did not know the contact information of the customer, nor did he contact anyone on the customer side. The customer side had no contact with Weng Mingchuan. Weng Mingchuan had no prior collusion with Zhao Jianhua or the customer.
3、 On the subject, the drawer of the bank acceptance bill is Jianping company, and the acceptor is the payer of China CITIC Bank Anshan Branch. Weng Mingchuan is neither the drawer nor the payer. Weng Mingchuan is neither the subject of issuing financial bills for examination, nor the subject of examination and approval, nor the subject of lending. He does not have the subject qualification of issuing financial bills at all, and does not constitute the crime of issuing financial bills in violation of regulations.
（1） The drawer of the bank acceptance bill is Jianping company. The acceptor is Anshan Branch of China CITIC Bank. Weng Mingchuan is neither the drawer nor the payer. He does not have the subject qualification to issue financial bills and does not constitute the crime of issuing financial bills in violation of regulations.
According to the bank acceptance bill used by China CITIC Bank to handle the business of this case, the full name of the drawer is Jianping company, and the full name of the paying bank is Anshan Branch of China CITIC Bank. It can be seen that the drawer of the bank acceptance bill is Jianping company, and the payer is Anshan Branch of China CITIC Bank. Neither the drawer nor the payer is Weng Mingchuan. Therefore, Weng Mingchuan is neither the drawer nor the payer, It does not have the subject qualification of issuing financial bills and does not constitute the crime of issuing financial bills in violation of regulations.
（2） According to the business process and the head office's factoring business management measures, the substantial review Department of factoring business is the risk management department of the branch, and the risk management department is the subject of the review. However, the review department did not raise any questions after reviewing the materials and did not require Weng Mingchuan to provide any supplementary materials. Therefore, the responsibility for approval should lie with the review department with review authority and responsibility, not with Weng Mingchuan, Nor should Weng Mingchuan bear the responsibility.
（3） The Department that actually reviews the bank acceptance bill is the credit management department. The work of the branch loan center is to review the materials and conduct independent review. The account center is the actual drawer. The main body of the loan is the branch loan center, not Weng Mingchuan.
（4） The main body of issuing bank acceptance bills is the bank. Weng Mingchuan did not and could not actually issue bank acceptance bills.
The main body of issuing bank acceptance bills externally is the bank. Before issuing bank acceptance bills, the bank has strict processes and approval procedures. These processes and approval procedures are an organic whole, and the issuing of bank acceptance bills can not be completed by one procedure in Weng Mingchuan's charge. Only after the whole process is completed can the bank acceptance bills be issued externally, It is the bank, not Weng Mingchuan, that really issues the bank acceptance bill. Therefore, Weng Mingchuan should not bear the responsibility for issuing financial bills in violation of regulations.
4、 On the object, Weng Mingchuan did not infringe the national financial management system.
Weng Mingchuan handled the business in strict accordance with the financial laws and regulations, the contract law, the head office's factoring business management measures and the factoring contract. There was no violation of laws and regulations. Weng Mingchuan's behavior did not cause serious disruption to the financial order and social order. The real problem was the banking system, the examination and approval department and the president Zhao Jianhua. Weng Mingchuan could not be convicted for the illegal acts of others.
5、 The crime of illegally issuing financial bills is a consequential crime, with "large losses" as the establishment requirement. There is no evidence to prove that CITIC Bank has incurred actual losses and the losses are large. Therefore, Weng Mingchuan cannot be identified as a crime.
The crime of issuing financial bills in violation of regulations is a consequential crime, with "large loss" as the establishment requirement. There is no evidence to prove that China CITIC Bank has incurred actual losses and the losses are large. China CITIC Bank can bring a lawsuit against Jianping company, and can even investigate the liability for breach of contract of Jianping company according to the factoring contract, and even investigate the criminal liability of Jianping company and other companies. The amount in the factoring contract is not an irrecoverable amount, The amount in the factoring contract cannot be recognized as an actual loss. According to the law and the factoring contract, the amount can be fully recovered. It cannot be concluded that Weng Mingchuan is guilty because the bank is lazy to exercise its rights or indulges in losses.
6、 Objective problems and practical problems arising from this case.
（1） Weng Mingchuan's position, salary and rights are obviously inconsistent with his responsibilities and punishment.
Weng Mingchuan's position is the fourth grade of assistant customer manager, and he is the lowest employee in the bank. He has no authority to review and approve, and can't do business independently. He has no leadership position. His monthly salary is 1300 yuan, and there is no other commission or reward. In fact, Weng Mingchuan has just joined the company, and this is the first factoring business he handled. He was severely punished. He was not only imprisoned, but also sentenced to bear criminal responsibility. Punishment is the most severe punishment for a person. For a new employee, the punishment is too heavy, which is inconsistent with his position, salary, rights and responsibilities.
（2） The defects of the bank's own system design and the unclear division of responsibilities within the bank cannot be borne by employees.
There are loopholes in the banking system, the internal posts are not clear, the division of labor is not implemented in place, and the departments in the approval process lack cooperation and coordination, resulting in omissions in the review, failure to effectively review the business, contradiction between the head office's management regulations and the branch's operating procedures, and contradiction between the contract model agreement and the management system. Anshan Branch has changed the process from obtaining credit to lending from "one day" to "two days", which fully proves the defects of the original system. The bank's own system design defects and unclear internal job division responsibilities cannot be borne by employees. Weng Mingchuan should not bear the criminal responsibility for the unit.
（3） The social impact of this case and the impact on other employees of the bank.
The wrong judgment of this case has produced extremely bad social impact and wrong career orientation. After this case, the enthusiasm of the employees of Anshan Branch was obviously frustrated, and they were unwilling to undertake similar businesses and assume responsibilities. The business was basically in a state of stagnation, and everyone was worried. Originally, it was normal business, and there was no violation of laws and regulations. Other employees also handled it according to Weng Mingchuan's procedures. However, it was totally unexpected that Weng Mingchuan would be imprisoned. Other staff are afraid that they will be convicted of the same crime one day, so they dare not handle business. Moreover, Weng Mingchuan's colleagues said that it is unthinkable that Weng Mingchuan could be convicted and detained with such a good character. It's better not to work hard than to do nothing. It's important to be wise. Under such circumstances, ordinary employees are worried and feel insecure, which has produced extremely bad social impact and career orientation. It is of great significance for the court to correct it.
To sum up, Weng Mingchuan's behavior does not meet the constitutive requirements of the crime of illegally issuing financial bills. Therefore, Weng Mingchuan does not constitute the crime of illegally issuing financial bills.