Lawyer's character

"I definitely don't agree with employees using violence. I can persuade and educate employees. I will never allow my subordinates to use violence. However, I can't help employees who have debts to deal with, hide around without paying back money, and threaten our employees who are demanding payment, so it is inevitable that there will be one or two It was self-defense. It’s not entirely our fault,” Hu Meng said with a look of being beaten.

Persuasive education! Why does it feel so strange to hear such advanced words coming from Hu Meng’s mouth? Fang Yi wanted to laugh but it was inappropriate in court, so he had to hold it in.

The inspector was so angry that he wanted to go up and kick him, but looking at his size, he had better forget it, as he wouldn't hurt his feet again if he kicked him.

"You said the debtor threatened your employees who collect debts. How did they threaten you?" the prosecutor asked, suppressing his anger.

"Our employees went to the debtor to collect payment, but the debtor refused to pay back the money. He even leaned on the window and yelled at him if he tried to force him again, so he jumped off the building. Do you think this was a rogue act to threaten our employees? How could we possibly coddle him?" Hu Meng said confidently. road.

Fang Yi had seen it all, he didn't feel embarrassed at all when such shameless words came out of his mouth, and he felt confident.

"Presiding Judge, we have finished asking questions." The prosecutor was speechless and ended his questioning. The presiding judge's face was colder than before.

"Does the defendant's defender need to ask questions to the defendant?" the presiding judge asked.

"I need to ask a question." Ma Banshan said: "Defendant Hu Meng, during the loan process, under what circumstances will the debtor default?"

"The vast majority of debtors are unemployed and have defaulted on the payment. There are also a few cases where the debt has become a dead debt because of disappearance." Hu Meng said.

"Has there ever been a problem with the APP platform or any intentional breach of contract by you?" Ma Banshan asked.

"No, we operate the company to make a profit and earn the agreed loan interest. If there is a problem with our platform, the debtor will refuse to repay and cause trouble for us. We operate with integrity." Hu Meng said.

The loan shark actually said that it operates with integrity. Well, you are very honest, at least more honest than the routine loan. Fang Yi had a capital word "service" in his heart.

"Presiding judge, I'm done asking." Ma Banshan didn't dare to ask any more questions. Hu Meng was so arrogant that it was easy to cause problems if he asked too many questions.

…

“The facts of this case have been clearly investigated, the court investigation has ended, and now the court debate has begun. The court debate mainly revolves around the disputed facts that have not been certified by the court and the issue of how the law should be applied based on the facts.

The prosecutor will speak first. "The chief judge said.

"Presiding Judge, Judge: We believe that the defendant in this case set up a trap to obtain the address book, charged high service fees and extension fees, and then demanded payment in the form of provoking quarrels and provoking troubles after the expiration date. Every step was a trap, and his overall behavior pattern has been It clearly goes beyond the scope of private lending. The essence is that the above-mentioned "routines" cooperate with each other to inflate the loan amount, maliciously increase the loan amount, and achieve the purpose of illegally possessing other people's property. It should be convicted and punished for fraud. Over!" The prosecutor said coldly. I wish I could freeze Hu Meng to death.

"The defendant defends himself." Although the presiding judge did not want Hu Meng to speak, the procedure must be complete, so he had no choice but to do so.

"I don't agree with their opinion. The relationship between our company and the borrower is a private lending relationship, but the interest rate is higher and there are some handling fees..." Hu Meng said calmly. The presiding judge saw that he had finished what he said. He interrupted his speech directly.

"Defendant Hu Meng's defender gave his defense opinion." the presiding judge said a little impatiently.

Ma Banshan gave Fang Yi a look, which means it's your turn!

"Presiding Judge, Judge: The defender believes that the defendant Hu Meng in this case did not defraud others of property by fabricating facts or concealing the truth, which does not meet the constituent elements of the crime of fraud. The reasons are as follows:

1. The defendant Hu Meng did not fabricate facts or conceal the truth to defraud borrowers.

First of all, the defendant in this case did not induce or force borrowers to borrow money through false propaganda or other means when operating the company. According to the case file materials, both the borrower and the platform staff stated that the platform only used promotional phrases such as "no mortgage, no credit reference, fast loan", and the platform had clearly informed the borrower on the loan interface, including the loan amount, service fee, loan amount, etc. The term, repayment amount due, overdue fees, etc., must go through two confirmation procedures: "Loan Agreement Confirmation" and "Loan Amount Confirmation" before the loan is released. Before the final confirmation, the borrower can choose to accept or give up the loan.

Secondly, this case did not form a false creditor-debtor relationship through methods such as "head-off interest". The routine in "routine loans" is to use borrowing as a guise, design routines, create false payment traces, collect fees under various names by deceptive means, and ultimately achieve the purpose of illegally possessing the borrower's property.

Returning to this case, during the period of operating the company, the defendant neither created false payment traces when borrowing money, nor did he intentionally create a breach of contract, arbitrarily determine a breach of contract, or use other means to maliciously raise debts to form a false creditor-debt relationship. The defender believes that because the interest after charging a service fee of 620 yuan is extremely high, it cannot be concluded that it has a "decapitation interest" routine.

2. The defendant in this case subjectively did not have the purpose of illegal possession.

‘Routine loans’ are essentially fraudulent activities carried out under the guise of lending. The ultimate goal of the lender is not to recover the principal and obtain interest, but to illegally possess the borrower’s property that far exceeds the principal and interest.

The defendant in this case loaned the same amount as the borrowed amount. What he wanted was for the borrower to pay ultra-high interest. When the loan expired, he proactively contacted the borrower to demand repayment of principal and interest. What he wanted was nothing more than ultra-high interest that was not protected by law. High interest.

In reality, the interest rates on most private loans are higher than bank loan interest rates, and collection is much more difficult than that of banks and other financial institutions. We should not only consider the relatively high interest rates, but also consider the inability to realize the creditor's rights. risk.

The interest charged by the defendant in this case did exceed the scope of legal protection by a lot, but the high interest rate cannot be regarded as a "routine". The target customers (borrowers) of the company run by the defendant are basically a group with extremely poor credit. The defendant also bears the risk of total loss of principal when making loans. The evidence provided by the prosecutor can also prove that the platform has high bad debts. The rate (more than 15%) is because the company run by the defendant has no substantial restrictions on the borrowers at all. To put it simply, it is just bad luck.

As the actual controller of the company, the defendant in this case chose the corresponding rate of return based on the characteristics and risks of the industry, and made paid loans under conditions approved by the borrower. His purpose was not to illegally possess other people's property.

3. The borrower is fully aware of the high interest rates and does not fall into misconceptions.

According to the provisions of the Criminal Law on the crime of fraud, it can be seen that the core element of the crime of fraud is the borrower's disposal of property after being deceived into a misunderstanding.

Therefore, the defender believes that in this case, it is not only necessary to examine whether the defendant has the subjective purpose of "illegal possession", but also to examine whether the borrower has an objective situation of "falling into misunderstanding and delivering the property."

"Routine loans" not only require that "routines" exist in the lending process, but also require that "routines" are the key means for the defendant to obtain property.

In practice, common criminal methods and steps of “routine loans” include but are not limited to the following situations:

1. Create the illusion of private lending. Criminal suspects and defendants often advertise to the outside world in the names of "small loan companies", "investment companies", "consulting companies", "guarantee companies", "online lending platforms", etc., and offer low-interest, unsecured, unsecured, fast loans, etc. The bait attracts victims to borrow money, and then uses false reasons such as "margin" and "business regulations" to induce the victims to sign "loan" agreements or related agreements with inflated amounts based on misunderstandings. Some criminal suspects and defendants will force the other party to sign a "loan" agreement or related agreement with an inflated amount on the grounds that the victim has previously defaulted on a loan.

2. Create false payment facts such as fund transfer records. The criminal suspects and defendants transferred funds to the victim's account according to the inflated "loan" agreement amount, creating bank records showing that all the loans were delivered to the victim, and then used various means to recover all or part of the funds. The victim actually The "loan" agreement and the money shown on the bank statements have not been obtained or fully obtained.

3. Deliberately creating a breach of contract or arbitrarily determining a breach of contract. Criminal suspects and defendants often deliberately cause victims to default by setting up default traps and creating repayment obstacles, or force victims to repay false debts by arbitrarily identifying breaches of contract.

4. Maliciously increase the loan amount. When the victim is unable to repay, some criminal suspects and defendants will arrange for their company or designated affiliated company or associated personnel to repay the "loan" for the victim, and then sign an inflated "loan" agreement or related agreement with the victim for a larger amount. Agreement, through this method of "transferring orders to settle accounts" and "repaying loans with loans", the "debt" continues to increase.

5. "Debt collection" using both soft and hard tactics. When the victim fails to repay the inflated "loan", the criminal suspect or defendant resorts to litigation, arbitration, notarization, or uses violence, threats, and other means to demand "debts" from the victim or the victim's specific related parties.

In this case, the materials on file show that most of the defendant’s borrowers clearly stated that they accepted the above-mentioned loan cost because they needed the loan urgently and the defendant was quick to lend money. Some of the borrowers had a history of borrowing from other similar platforms or had borrowed money from this platform. They borrowed money multiple times, and some even said they were not prepared to repay the borrowed money at all.

Moreover, when the actual loan amount and principal and interest repayment amount do not exceed the prior agreement between the borrower and the lender, the borrower shall decide whether to extend, overdue, or repay the loan.

It is impossible for the borrowers to fall into misconceptions. They have a clear understanding of the platform's borrowing model and the consequences of borrowing, and the defendant has clearly informed the loan principal, loan service fee, loan period, etc. when lending. In fact, the platform The displayed loan principal is completely consistent with the amount received, so the above behavior will not cause the borrower to fall into a wrong understanding.

To sum up, the borrower in this case still paid money to the defendant even though he knew the true amount of the loan and the extremely high interest rate from both parties. This obviously did not fall into the category of "delivering property due to misunderstanding". If this was punished as a crime of fraud, There is no doubt that it violates the principle of legal punishment.

The defense opinions have been published! "After Fang Yi finished speaking, he put down his defense statement.

Hu Meng in the dock was dumbfounded. He blinked and looked at Fang Yi. He didn't know where Ma Banshan got this middle-aged male lawyer. Although he couldn't quite understand the professional words the other party said, He felt that what this lawyer said seemed to be very beneficial to him, and he was even more aggressive than Hu Banshan!

Although the two prosecutors opposite felt that Fang Yi's defense opinion was different from what they thought, it seemed to make sense, but they couldn't admit it, absolutely couldn't admit it. If the court ruled, take it back and report it. Whether you want to protest or not is up to you. Opinions are all.

The presiding judge still had a cold face, thinking while listening.

Ma Banshan had discussed the case with Fang Yi three or four times before. He had also read Fang Yi's defense opinions before and found them very down-to-earth, at least more comprehensive than he thought.

…

"The District Procuratorate initiated a public prosecution of the defendant Hu Meng's suspected fraud case. After a hearing, this collegial panel conducted court investigations and court debates, and listened to the prosecutor's accusations, the defendant's opinions, the defendant's defense, statements, and the defender's Defense opinion, the court hearing is over. Now there will be a ten-minute adjournment. The collegial panel will deliberate and pronounce the verdict. Take the defendant out of the court." After the presiding judge banged his gavel, he stood up and exited the court.

After the adjournment, Fang Yi and Ma Banshan did not leave the court. Ma Banshan handed Fang Yi a bottle of mineral water: "Lawyer Fang, how do you think the judge will rule in this case?"

"It's hard to say, but I think the judge seems to have made a decision already." Fang Yi said.

"Oh? How do you say it?" Ma Banshan whispered.

"One of the three judges on the collegial bench seemed not to be interested in this case. He must have been pulled from another case to make up the numbers. The other judge just flipped through the case file casually, and he must have come to make up the numbers. The person sitting in the middle The presiding judge seems a little careless and is just following the procedure. In fact, he should have made a decision in his heart, otherwise it would not be like this..." Fang Yidao.

Fang Yi's words left Ma Banshan speechless.

More than half an hour later, Fang Yi and Ma Banshan walked out of the court with relaxed expressions on their faces. The court finally ruled that Hu Meng was not guilty of fraud and was acquitted. Mr. Hu did not come out with the two lawyers because he still had some procedures to go through.

(According to the "Opinions on Several Issues Concerning the Handling of "Routine Loan" Criminal Cases" jointly issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice (implemented on April 9, 2019), "Routine Loan" is a For the purpose of illegal possession, in the name of private lending, the victim is induced or forced to sign "loan" or disguised "loan", "mortgage", "guarantee" and other related agreements, by falsely increasing the loan amount, maliciously creating breach of contract, arbitrarily identifying breach of contract, destroying A general term for related illegal and criminal activities in which false claims and debts are formed by concealing evidence of repayment, and illegally possessing the victim's property with the help of litigation, arbitration, notarization, or using violence, threats, or other means.)

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