Lawyer's character

"You mentioned before that the bank has approved your loan. How did you know? How did Wei Xikui know about this?" Fang Yi asked.

"The person in charge of loans at the bank told me personally. Later, I took Wei Xikui to the bank to verify the approval status of the loan. The person at the bank also told Wei Xikui personally," Hu Weijun said.

"You just said that the bank did not lend money because there was a problem with the collateral. Which mortgage had a problem? What was the problem?" Fang Yi asked.

"It's my house. I have a three-bedroom apartment. When I was applying for a mortgage, I couldn't find the real estate certificate. I was in a hurry to go to the bank for a loan, so I found someone to forge a real estate certificate." Hu Weijun said.

"That is to say, the house is real and belongs to you, but because the real estate certificate was lost, you were eager to go through the loan mortgage procedures, so you forged the real estate certificate, right?" Fang Yi asked.

"Yes. The police investigated this matter during the first trial and also cross-examined it during the trial." Hu Weijun said.

"Presiding judge, the defender has finished asking questions." Fang Yi looked at the expressionless presiding judge sitting above.

"Now the court will proceed with the presentation of evidence and cross-examination. Do the prosecutors, defenders, and appellant have any new evidence that needs to be submitted?" the presiding judge asked.

"There is no new evidence." All three parties said.

…

"The court investigation is over and the court debate is now underway. Before the debate, the court draws the attention of both the prosecution and the defense that the debate should mainly focus on determining the crime, sentencing and other controversial issues. The appellant and defender are invited to speak first.

The appellant Hu Weijun can defend himself. "The chief judge said.

"I don't think I'm qualified enough to commit fraud..." General Hu Weijun repeated his previous statement.

"The defender of the appellant Hu Weijun has spoken." The presiding judge looked at Fang Yi.

"Dear presiding judge, judge: The defender believes that Hu Weijun does not commit the crime of fraud for the following reasons:

1. Hu Weijun borrowed money from others at high interest rates and issued IOUs. The borrowed funds were used for legal business activities such as stock market investment, repayment of bank loans, and factory operations. He did not hide or squander the borrowed money. Moreover, according to the bank transfer records provided by the prosecutor, Before the incident, Hu Weijun had been repaying the principal and interest of the loan on schedule, so there was insufficient basis for determining that Hu Weijun had illegal possession.

2. Although Hu Weijun fabricated some facts or concealed the truth, his behavior was not for the purpose of illegal possession, but to enable the machine processing factory to continue operating. Therefore, his behavior did not meet the constituent elements of the crime of fraud. The borrowing behavior involved in this case should be classified as civil fraud, and the disputes arising from this with creditors should be resolved through civil litigation and should not be pursued for criminal liability.

3. Judging from Hu Weijun’s past experience, the appellant Hu Weijun himself is an entrepreneur who values ​​loyalty and trustworthiness. During the heyday of his machine processing factory, local people, including banks, rushed to lend money to the land and earn stable interest. At a time when economic growth is slowing down and financial lending disputes occur frequently, many entrepreneurs are insolvent. This case is a typical economic dispute case formed under this background and should not be treated as a crime.

In summary, the court is requested to ascertain the facts in accordance with the law and support the appellant’s claim. The defender's defense opinions have been elaborated. "Fang Yi said.

"The prosecutor will now speak," the presiding judge said.

“Presiding Judge, Judge: The prosecutor believes that the facts found in the first instance were clear and the evidence was reliable and sufficient.

Hu Weijun obtained property by fabricating facts and concealing the truth, forged false real estate certificates as collateral, used a large amount of money to invest in high-risk stocks, and paid usurious loans. Although he knew he had no ability to repay his debts, he still borrowed large sums of money and became insolvent. He absconded after the incident.

In summary, Hu Weijun meets the basic characteristics of the crime of fraud and should be constituted as a crime of fraud. From this, it can be seen that Hu Weijun’s grounds for appeal cannot be established, and it is recommended that the appeal be dismissed and the original judgment be upheld. "The female prosecutor said.

"The prosecutor can respond to the defender's defense opinions," the presiding judge said.

"Okay, in response to the defender's defense opinions, the prosecutor responded as follows:

1. For the purpose of illegal possession, Hu Weijun fabricated facts and concealed the truth, and defrauded Feng Ping and Wei Xikui of 17 million yuan. The above facts have been verified to be true. Although there was no squandering behavior, he invested the funds in the stock market with the obvious purpose of illegal possession.

2. The operation of Hu Weijun's machine processing factory had deteriorated before the loan. It borrowed a large amount of money and concealed its true purpose. It was also true that during the borrowing process, it used fake property rights certificates to mortgage and release the mortgage. Obviously with the purpose of defrauding.

3. After borrowing 12 million yuan from Feng Ping, he then borrowed money from a bank, and borrowing 5 million yuan from Wei Xikui is a typical behavior of "removing the east to make up for the west". It is to cover up the fact of fraud.

4. After the incident, Hu Weijun avoided debts and absconded in fear of crime. Moreover, the economic situation should not become a free ticket for committing crimes.

To sum up, Hu Weijun has committed the crime of fraud. The facts are clear and the evidence is sufficient. We ask the court to judge according to law. "The female prosecutor said.

“The defender can respond to the prosecutor’s opinions,” the presiding judge said.

“In response to the prosecutor’s defense opinions and responses, the defender issued the following defense opinions:

1. There is insufficient basis for determining that the defendant Hu Weijun had the purpose of illegal possession.

First, the defendant Hu Weijun borrowed a total amount of 17 million yuan from Feng Ping and Wei Xikui. According to the land valuation reports and real estate mortgage valuation reports in 2011 and 2012, the total value of the land and real estate of the machine processing factory reached more than 19.3 million yuan, and the total value of personal properties was 8.6 million yuan.

At the time of the loan, after deducting the bank mortgage loan and arrears from suppliers, the residual value of the company's assets and the value of his personal property were basically the same as the loan amount. This shows that Hu Weijun has the ability to repay the loan.

(Fang Yi knew that the appraisal report might be weak and full of water, but after going back and forth, there was not much evidence that was favorable to Hu Weijun in the evidence presented by both parties in the first trial. He could only use it for what he could use it for. Fortunately, the property and land were indeed It actually exists, but its value is questionable)

Secondly, Hu Weijun used the borrowed funds for legal activities such as stock market investment and repayment of bank loans. The failure to repay the borrowed money in time was due to reasons such as stock investment operating losses and the failure to complete the loan renewal procedures. It was not due to personal squandering or other illegal activities. Caused by criminal activities.

Once again, Hu Weijun paid the interest to creditors on time. Among them, Feng Ping has received interest of more than 2.8 million yuan, and has obtained more than 2.3 million yuan through civil litigation execution; Wei Xikui has received interest of more than 160,000 yuan. This shows that Hu Weijun has the initiative to repay the loan. will.

Finally, Hu Weijun fled to another place only after learning that Wei Xikui reported the crime. He did not flee after obtaining the loan. His behavior of running away was not for the purpose of illegally possessing the loan, which does not meet the form of the crime of fraud.

2. Hu Weijun did fabricate facts or conceal the truth, but this should be classified as civil fraud.

The crime of fraud objectively manifests itself as fabricating facts or concealing the truth. The perpetrator commits fraud by fabricating or concealing facts in order to cause the victim to fall into a wrong understanding and thus achieve his purpose of illegally possessing other people's property.

In this case, Hu Weijun borrowed 12 million yuan from Feng Ping. The reason for the loan was that he needed funds for factory production. However, after obtaining the money, he actually used part of the funds for stock speculation. He was indeed deceptive in terms of the reason for the loan and the purpose of the money.

After Hu Weijun obtained the money, when Feng Ping asked for a mortgage, he forged a real estate certificate and mortgaged it to him, which was also fraudulent.

However, Hu Weijun and Feng Ping reached an agreement on the loan and issued an IOU to the lender in a timely manner. This behavior complied with the formal requirements for private lending. The two parties were essentially in a lending relationship and there was no misunderstanding between the two parties regarding the loaned funds.

Hu Weijun invested part of the funds in stocks, but stock investment was a legal business activity and was only a change in business direction. Hu Weijun forged personal real estate documents as collateral for the loan, but the above-mentioned personal properties were objectively real. In the first instance, Hu Weijun's parents-in-law expressed their willingness to use their small-property houses to pay off the debt. After the above-mentioned property is auctioned, the victim's loan can be partially repaid.

Before the incident, Hu Weijun had been steadily repaying the principal and interest, and had no intention of illegal possession or absconding with the money.

In this case, Hu Weijun approached Wei Xikui to borrow money to repay the bank loan after the first bank loan was about to expire. He claimed that he had applied for a 6 million yuan loan from the bank and would repay the loan once the loan was obtained.

Regarding the application for a bank loan, Manager Zhou Jinku of the bank business department also confirmed to Wei Xikui that Hu Weijun's statement was true (as evidenced by the police's interrogation records), and that the loan approval procedures had been completed. Wei Xikui subsequently transferred the loan to Hu Weijun .

During the above-mentioned borrowing process, although Hu Weijun concealed that one of the three real estate certificates mortgaged for the loan from the first bank was a forgery, the content, reason and repayment plan of the loan mentioned were all true. , it can be seen that Hu Weijun had no purpose of illegally possessing Wei Xikui's loan.

In addition, the defender reminded the presiding judge that although one of the three properties used for mortgage was forged and two of the property certificates were genuine, the reason why Hu Weijun forged the property certificate was because the original property certificate was lost. In other words, although the real estate certificate is fake, the real estate is real and valid (confirmed in the first instance).

3. The Supreme People's Court issued the "Opinions on Giving Full Play to the Role of Trial Functions and Effectively Strengthening Judicial Protection of Property Rights" (the Opinions issued in 2016, borrowed here in advance), which particularly emphasized the need to strictly distinguish between economic disputes and criminal disputes. Crime, resolutely prevent economic disputes from being treated as crimes..., and resolutely prevent the use of criminal means to intervene in economic disputes.

To sum up, Hu Weijun’s above-mentioned fraudulent behavior has not yet reached the level of fraud and should not be treated as a crime, regardless of the content of the fraud, the extent of the fraud, or the misunderstanding of the person being defrauded.

The defender believes that this case is representative to a certain extent at the moment, and if it is handled as innocent, it will have better social and legal effects. The court is requested to adopt the defender’s opinion and support the appellant’s appeal request.

The defender completed his response. "Fang Yi said.

…

Mr. Tong listened very carefully in the auditorium. As a man in his fifties, he still knew whether Fang Yi was defending with all his heart or performing in court.

Regarding Fang Yi's defense opinions today and the verbal battle with the prosecutor in court, he felt that the 100,000 yuan was well spent. Even if the second instance court really upheld the original verdict, he would not blame the lawyer, because Fang Yi really Tried my best.

"The court will now be adjourned for ten minutes, and the verdict will be announced in court after the collegial panel's deliberations. Please ask the bailiff to take the appellant Hu Weijun out of the court." After the presiding judge finished speaking, he banged the gavel, and the three judges left the seat one by one and went to the back to deliberate.

Fang Yi took a long breath, endured the hunger in his belly, took out the mineral water from his shoulders and took a big sip, then looked at his watch, it was already past two o'clock in the afternoon, and the trial lasted for more than six hours. Look at the two female prosecutors opposite. They are not much better than me. They are both starving and waiting for the verdict.

What is supposed to come will come, and the moment has come to decide Hu Weijun's fate.

Everyone stood up, and the judges of the collegial bench entered the court one by one.

The presiding judge banged the gavel: "Now continue the trial and ask the bailiff to bring Hu Weijun to court. The collegial panel has made a judgment in this case. Based on the opinions of the prosecution and defense, combined with the focus of the dispute in this case, and based on the facts and evidence of this case, this case The hospital’s analysis is as follows:

...Hu Weijun borrowed money from others at high interest rates and issued IOUs. The borrowed funds were used for legal business activities such as stock market investment and repayment of bank loans. There is insufficient basis to determine that Hu Weijun had the purpose of illegal possession. He did fabricate some facts or conceal the truth, but his behavior was not for the purpose of illegal possession. Therefore, his behavior did not meet the constituent elements of the crime of fraud and should be classified as civil Fraud and resulting disputes with creditors should be resolved through civil litigation and should not be pursued criminally. Hu Weijun and his defender proposed that the defense grounds that did not constitute the crime of fraud were established and supported.

Accordingly, in accordance with Article 225, Paragraph 1, Item (2), Article 231, and Article 195, Paragraph 1, Item (2) of the Criminal Procedure Law of the People's Republic of China According to the provisions of this item, the judgment is as follows:

1. Revoke the Criminal Judgment No. 90 of the Municipal Intermediate People’s Court.

2. The appellant Hu Weijun is not guilty.

…”

When the presiding judge read the sentence "His behavior does not meet the constituent elements of the crime of fraud," Fang Yi knew that Hu Weijun would not go to jail.

After the presiding judge read out the verdict, Hu Weijun did not show much excitement. The joy on his face flashed, but his eyes were filled with tears. He still had a huge debt to repay, and this was just the first step in a long march of thousands of miles.

"Lawyer Fang, thank you!" Hu Weijun looked at Fang Yi and said sincerely.

When the bailiff was opening Hu Weijun's handcuffs, Mr. Tong in the auditorium came over and said, "Lao Hu, congratulations."

Hu Weijun turned his head and looked at Mr. Tong. He didn't say ha, but nodded heavily.