Lawyer's character

Meng Guangda's guess was accurate.

After the trial, the court held that the defendant Shan Guangsheng used the method of fabricating explosion threats to extort money from several units, causing some units to suspend operations and suffer serious economic losses. The public security department dispatched a large number of police officers to evacuate people, seriously disrupting social order. This behavior constitutes the crime of fabricating false terrorist information and has serious consequences.

In accordance with Article 8 of the "Criminal Law Amendment (3)" and Article 291, Article 55, Paragraph 1, Article 56, Paragraph 1, and Article 64 of the "Criminal Law", The court sentenced defendant Shan Guangsheng to 12 years in prison for fabricating false terrorist information and deprived him of political rights for three years; his criminal tools were confiscated.

After the verdict of the first instance was pronounced, the defendant Shan Guangsheng refused to accept the verdict and lodged an appeal. The court of second instance dismissed the appeal and upheld the original judgment.

Of course, Meng Guangda didn't know yet at this time.

"Is your Tieguanyin from Yunwu Tea House?" Du Yong picked up the tea box on Meng Guangda's table, looked at it and said.

"How do you know?" Meng Guangda was startled and smiled.

"I also have a box here." Du Yong chuckled and said, "Follow Boss Fang, you have enough tea leaves. The tea leaves at Yunwu Tea House are indeed good."

Meng Guangda also laughed.

Gu Mingguo's loan fraud case finally went to trial after being sent back for retrial by the High Court. Not only did Gu Mingguo's wife Yu Wanru attend the hearing, but the bank also sent people to listen.

"...The defendant Gu Mingguo fabricated lies and used deceptive means to obtain a new house certificate from the real estate department and used it as a mortgage certificate to sign a loan contract with the bank and obtain a loan of two million yuan. This should be considered as fraudulent means. Got a loan.

In addition, Gu Mingguo did not use the loan in the manner stipulated in the contract, but used it for economic activities such as futures trading and purchasing companies, which should be regarded as a breach of contract.

When Gu Mingguo failed to repay the loan to the bank for a long time, he signed an agreement with others to transfer the company under his name, and the buyer of the company was responsible for Gu Mingguo's loan debt of 2 million yuan in principal in the bank. It was obvious that he was evading debt. deliberately.

The above-mentioned behavior of the defendant Gu Mingguo violated the provisions of Article 193 of the Criminal Law of the People's Republic of China. The criminal facts are clear and the evidence is reliable and sufficient. He should be held criminally responsible for the crime of loan fraud. According to the provisions of Article 176 of the Criminal Procedure Law, if a public prosecution is initiated, the person shall be sentenced in accordance with the law.

The indictment has been read out. "The prosecutor glanced at Gu Mingguo in the dock with a righteous look.

"Defendant Gu Mingguo, did you hear clearly the indictment just read out by the prosecutor? What crime are you accused of? Do you have any objection to the criminal facts accused of you in the indictment?" The presiding judge is a male judge with two big bull's eyes. , looking towards the dock.

"I have objections to the charges made by the procuratorate. I had no purpose of illegally possessing the loan, and there was no deception. The operator of the entire loan was Zhao Jinku, the former director of the credit department of the city commercial bank. I did not conceal the fact that the house had been loaned. And I took active measures to repay the loan, so I am not guilty." Gu Mingguo felt that he was wronged.

"The public prosecutor can question the defendant about the criminal facts charged in the indictment," the presiding judge said.

…

“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. "said the presiding judge.

The prosecutor's speech was basically consistent with the accusation, and he recommended that the court sentence the defendant Gu Mingguo to life imprisonment. Then came the defendant's own defense, which was roughly the same as what was said before.

"The defendant's defender expressed his defense opinion." The presiding judge looked at the defense table.

"Presiding Judge, Judge: The defender believes that the defendant Gu Mingguo does not commit the crime of loan fraud for the following reasons:

According to the "Minutes of the National Court Symposium on Trial of Financial Crime Cases" (2001), for cases where there is conclusive evidence proving that the perpetrator did not have the purpose of illegal possession and used deceptive means to obtain a loan because he did not meet the conditions for the loan, the case occurred. If a person is unable to fulfill his loan repayment obligations, or if he is unable to repay the loan at the time of the crime due to reasons other than his will, such as poor management, being deceived, market risks, etc., he should not be convicted and punished for loan fraud.

The defender believes that based on the above minutes, it cannot be determined that the defendant has the purpose of illegally possessing the loan simply because the defendant used fraudulent means to actually obtain the loan or cannot return the loan when it expires. Instead, the principle of consistency between subjectivity and objectivity should be adhered to. Analyze specific situations in detail.

Based on a comprehensive analysis of the actor's ability to perform the contract at the time of the loan, the means of obtaining the loan, the use of the loan, the reasons why the loan cannot be returned, and relevant objective facts, it is judged whether the actor has the purpose of illegally possessing the loan and whether constitutes the crime of loan fraud.

In this case, the facts of the case alleged by the public prosecution can be summarized as follows: the defendant Gu Mingguo used false property rights certificates to repeatedly mortgage to obtain a bank loan of 2 million yuan, of which 1 million yuan was used to speculate in futures and incurred losses, and the other 1 million yuan was used to speculate in futures and incurred losses. Used to purchase equity in engineering companies.

Jingcheng Commercial Bank repeatedly urged Gu Mingguo to pay back the money. After that, Gu Mingguo planned to transfer the engineering company and implement loan repayment. During the transfer process, the bank failed to approve the case and the case occurred.

The evidence in the case shows that Gu Mingguo indeed used fraudulent means to obtain bank loans using false certificates of property rights as guarantees. After the loan was granted, he changed the purpose of the loan without authorization. He did not use the loan for company operations, but used it to purchase fixed assets and Futures speculation, but based on the facts of the entire case, it cannot be concluded that Gu Mingguo subjectively had the purpose of illegal possession. The specific reasons are as follows:

1. From the perspective of the ability to perform the contract at the time of the loan, first, Gu Mingguo purchased and obtained the property rights of the three-story office building, and second, the defendant held equity in the engineering company. It can be seen that Gu Mingguo has the ability to perform the contract.

Although Gu Mingguo used the same building to mortgage three loans, except for the one he sued, one of the other two loans has been paid off, and the other is a normal loan and most of the principal has been returned.

2. Judging from the purpose of the loan, Gu Mingguo did not engage in squandering or absconding with the money, but used it to purchase and operate an engineering company.

If the defendant obtains a loan by fraudulent means and uses it for business activities, even if it is a high-risk business activity, such as stock trading, futures speculation, real estate development and other activities, resulting in the objective failure to return the funds, if there is no other proof that the defendant has The fact of illegal possession shall not be punished as loan fraud.

3. Judging from the loan repayment situation, Gu Mingguo transferred the engineering company to a third party outside the case. After that, the two parties negotiated with the Xijiao Branch of the City Commercial Bank to use the company's land and factory buildings as collateral for a loan of 2 million yuan, and repaid the loan with the loan. It is the true expression of the three parties’ intentions.

The engineering company's land has been valued by a land appraisal agency at a value of more than 1.2 million yuan, and its real estate is worth 1.6 million yuan.

It can be seen that Gu Mingguo has been actively looking for ways to repay the loan, and during this period he has successively repaid the principal and interest of nearly 100,000 yuan in loans. Gu Mingguo has not refused to repay the loan.

To sum up, Gu Mingguo subjectively did not have the purpose of illegally occupying city commercial bank loans, and his behavior did not constitute the crime of loan fraud. complete. "After Fang Yi put down his defense opinions, he looked at the chief examiner.

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