Identification of the crime of fund-raising fraud

The boundary between fraud and lending behavior

If the borrower is in arrears for a long time for some reason, or fabricates a lie or conceals the truth to defraud money and materials, it can't be repaid at maturity, as long as there is no purpose of illegal possession, no profligacy or deception, and it really means repayment; There are also some people who forge repayment vouchers and lie that they have repaid their debts after they have owed them. This is still a loan dispute and does not constitute fraud.

The boundary between fraud and defaulting on payment for goods on behalf of others.

In the name of buying goods in short supply on behalf of others, taking the payment without buying anything, misappropriating the payment without authorization, defaulting on repayment, etc., we should focus on its real purpose, the relationship between the two parties, the cause of the incident, the specific behavior of the agent, the plot and consequences of breach of contract, and correctly judge whether it has the intention of illegal possession. If you can obviously want to buy it, but you still want to return it because you can't buy it for misappropriation, you can't be punished as fraud. Anyone who swindles in the name of purchase, defrauds a large amount of property, squanders money, has no intention to return it at all, and is unable to return it, should be punished as fraud.

The boundary between fraud and fund-raising enterprises hiding debts due to losses

If it is indeed a fund-raising enterprise, but because of poor management, loss of debt, going out to avoid debt, or property debt disputes. This is essentially different from fraudsters who abscond with money for the purpose of illegal possession in the name of raising funds to run enterprises.

The boundary between fraud and fraud

Both use deception, and the latter may also obtain property benefits, which are the same; But the subjective purpose, criminal means, the amount of property and the object of infringement are all different. The crime of swindling and cheating is a swindling and cheating act aimed at defrauding all kinds of illegal interests, pretending to be a state functionary, and damaging the prestige of state organs, social public interests or citizens' legitimate rights and interests. The fraud not only includes property (but not limited to the amount), but also includes work, position, honor, etc., which belongs to the crime of disturbing social management order. Criminals impersonate state functionaries to defraud public and private property, which infringes on property rights and damages the prestige and normal activities of state organs. They are implicated offenders, and the charges should be determined according to the main object and main harmfulness of the behavior. If the amount of property defrauded is not large, but the prestige of state organs is seriously damaged, it should be punished as the crime of swindling and cheating; Otherwise, it is defined as fraud. If two kinds of objects seriously infringe, they are generally treated as fraud according to the principle of one felony. Two kinds of crimes have been committed independently, and if they are not related to each other, they shall be dealt with according to the principle of combined punishment for several crimes.

The boundary between this crime and other fraud crimes stipulated in this law

The remaining chapters of this law respectively stipulate crimes such as fund-raising fraud, loan fraud, financial bill fraud, letter of credit fraud, credit card fraud, securities fraud, insurance fraud and contract fraud. These fraud crimes are the same as this crime in subjective and objective aspects, but they are different in subject, criminal means, subject elements and objects, which are easy to distinguish. Therefore, this article stipulates that "if there are other provisions in this law, those provisions shall prevail."

criminal punishment

1. Whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also or only be fined;

2. If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined;

3. If the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated.

According to the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Fraud (implemented on April 8, 20 1 1).

Defrauding public or private property to reach the above amount standard.

(three) fraud in the name of disaster relief fund-raising;

(four) defrauding the disabled, the elderly or the disabled;

(5) Causing the victim to commit suicide, mental disorder or other serious consequences.

The amount of fraud is close to the above-mentioned standards of "huge amount" and "extremely huge amount". Article 266 Whoever defrauds public or private property in a relatively large amount shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also, or shall only, be fined; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; If the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated. Where there are other provisions in this Law, such provisions shall prevail.

Article 210, paragraph 2, whoever defrauds special invoices for value-added tax or other invoices that can be used to defraud export tax rebates or offset taxes shall be convicted and punished in accordance with the provisions of Article 266 of this Law.

Article 269 Whoever commits theft, fraud or robbery and uses violence or threatens violence on the spot to conceal stolen goods, resist arrest or destroy criminal evidence shall be convicted and punished in accordance with the provisions of Article 263 of this Law.

Article 300 The third paragraph of the article organizes and uses cult organizations or superstitions to rape women and defraud property, and shall be convicted and punished in accordance with the provisions of Articles 236 and 266 of this Law respectively.

Article 287 Whoever uses computers to commit financial fraud, theft, corruption, misappropriation of public funds, theft of state secrets or other crimes shall be convicted and punished in accordance with the relevant provisions of this Law.

Relevant decision

The Decision of NPC Standing Committee on Maintaining Internet Security (2000. 12.28) aims to protect the legitimate rights of individuals, legal persons and other organizations. If one of the following acts constitutes a crime, criminal responsibility shall be investigated in accordance with the relevant provisions of the Criminal Law: theft, fraud and extortion by using the Internet. Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Fraud

(Fa Shi [20 1 1] No.7)

The Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Fraud was adopted by the the Supreme People's Court Judicial Committee at its 15 10 meeting on124 October.

20 1 1 year March 1 day

In order to punish fraudulent criminal activities in accordance with the law and protect the ownership of public and private property, according to the relevant provisions of the Criminal Law and the Criminal Procedure Law, combined with the needs of judicial practice, some issues concerning the specific application of law in handling fraudulent criminal cases are explained as follows:

Article 1 Whoever swindles public or private property in an amount of over 3,000 yuan, over 30,000 yuan, over 100,000 yuan and over 500,000 yuan shall be deemed as "large amount", "huge amount" or "especially huge amount" as stipulated in Article 266 of the Criminal Law respectively.

The higher people's courts and people's procuratorates of all provinces, autonomous regions and municipalities directly under the Central Government may, in combination with the economic and social development of the region, jointly study and determine the specific amount standards implemented in the region within the scope of the amount specified in the preceding paragraph, and report them to the Supreme People's Court and the Supreme People's Procuratorate for the record.

Article 2 Whoever cheats public or private property to the amount specified in Article 1 of this Interpretation, under any of the following circumstances, may be given a heavier punishment according to the provisions of Article 266 of the Criminal Law:

(1) Sending short messages, making phone calls or publishing false information through the Internet, radio and television, newspapers and magazines, etc., defrauding an unspecified majority;

(2) defrauding disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration, relief and medical funds and materials;

(three) fraud in the name of disaster relief fund-raising;

(four) defrauding the disabled, the elderly or the disabled;

(5) Causing the victim to commit suicide, mental disorder or other serious consequences.

If the amount of fraud is close to the standards of "huge amount" and "extremely huge amount" as stipulated in Article 1 of this Interpretation, and it falls into one of the circumstances as stipulated in the preceding paragraph or belongs to the ringleader of a fraud group, it shall be deemed as "other serious circumstances" and "other particularly serious circumstances" as stipulated in Article 266 of the Criminal Law respectively.

Article 3 Although swindling public or private property meets the standard of "large amount" as stipulated in Article 1 of this Interpretation, if the perpetrator pleads guilty or repents, he may not be prosecuted or be exempted from criminal punishment according to the provisions of Article 37 of the Criminal Law and Article 142 of the Criminal Procedure Law:

Having a statutory lenient punishment;

(2) Before the verdict is pronounced in the first instance, all the stolen money and compensation money have been returned;

(three) did not participate in the distribution of stolen goods or less stolen goods and not the principal;

(4) the victim understands;

(5) Other circumstances are minor and harmless.

Article 4 Whoever defrauds the property of a close relative and the close relative knows it may generally not be treated as a crime.

If it is really necessary to pursue criminal responsibility by defrauding the property of close relatives, the specific treatment should also be lenient as appropriate.

Article 5 Anyone who attempts to defraud, with a huge amount or other serious circumstances, shall be convicted and punished.

Using telecommunications technologies such as sending short messages, making phone calls, and the Internet to defraud an unspecified majority of people, and the amount of fraud is difficult to verify. However, under any of the following circumstances, it shall be deemed as "other serious circumstances" as stipulated in Article 266 of the Criminal Law, and shall be convicted and punished for fraud (attempted):

(1) Sending more than 5,000 pieces of fraudulent information;

(2) Making fraudulent phone calls for more than 500 times;

(3) The fraudulent means are bad and the harm is serious.

If the number of acts specified in the preceding paragraph reaches more than ten times the standards specified in Items (1) and (2) of the preceding paragraph, or if the fraudulent means are particularly bad and the harm is particularly serious, it shall be deemed as "other particularly serious circumstances" as stipulated in Article 266 of the Criminal Law, and shall be convicted and punished for fraud (attempted).

Article 6 If the accomplished fraud and attempted fraud reach different sentencing ranges respectively, they shall be punished according to the provisions of heavier punishment; Those who reach the same sentencing range shall be punished as fraud.

Article 7 Whoever knowingly provides credit cards, mobile phone cards, communication tools, communication transmission channels, network technical support, fee settlement and other assistance shall be punished as * * *.

Article 8 Whoever impersonates a functionary of a state organ to commit fraud and at the same time constitutes a crime of fraud shall be convicted and punished in accordance with the provisions of heavier punishment.

Article 9 If the ownership of fraudulent property and its fruits that have been sealed up, detained or frozen after a crime is clear, it shall be returned to the victim; If the ownership is unclear, the victim may be returned according to the proportion of the defrauded money and goods to the total amount of property and fruits seized, detained or frozen in this case, but the compensation already returned shall be deducted.

Article 10 The actor has used the defrauded property to pay off debts or transfer it to others. In any of the following circumstances, it shall be recovered according to law:

(1) The other party collects it knowing that it is fraudulent property;

(2) The other party obtains fraudulent property free of charge;

(3) The other party obtains fraudulent property at a price significantly lower than the market price;

(4) The fraudulent property obtained by the other party originated from illegal debts or illegal and criminal activities.

If another person obtains fraudulent property in good faith, it will not be recovered.

Article 11 If the previously issued judicial interpretation is inconsistent with this interpretation, this interpretation shall prevail.

Article 9 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Cases Disrupting the Management Order of the Telecommunication Market stipulates that anyone who uses false or fraudulent identity documents to surf the Internet or use mobile phones, thus causing great losses to telecommunication charges, shall be convicted and punished for fraud in accordance with the provisions of Article 266 of the Criminal Law.

Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Fraud Cases (Fa Shi Fa [1996.5438+02.16] No.32).

In order to punish fraud crimes according to law, according to the relevant provisions of the Criminal Law of People's Republic of China (PRC) (hereinafter referred to as the Criminal Law) and the Decision of the NPC Standing Committee on Punishing Crimes of Disrupting Financial Order (hereinafter referred to as the Decision), several specific issues in the trial of fraud cases are explained as follows:

1. According to the provisions of Articles 151 and 152 of the Criminal Law, defrauding a large amount of public or private property constitutes a crime of fraud.

Individuals who defraud public or private property of more than 2,000 yuan belong to a "large amount"; Individuals who defraud public or private property of more than 30,000 yuan belong to a "huge amount".

Individuals who defraud public or private property of more than 200,000 yuan belong to a huge amount of fraud. The huge amount of fraud is an important part of fraud, but it is not the only plot. The amount of fraud is more than 654.38+10,000 yuan, and under any of the following circumstances, it should also be considered as "the circumstances are particularly serious":

(1) ringleaders of fraud groups or principals of major fraud crimes;

(2) The recidivist or fugitive commits serious crimes;

(3) defrauding a legal person, other organization or individual of the means of production urgently needed, which seriously affects production or causes other serious losses;

(4) defrauding disaster relief, emergency rescue, flood control, special care, relief and medical funds and materials, thus causing serious consequences;

(5) Spending fraudulent property, which makes it impossible to return the fraudulent property;

(six) the use of fraudulent property for illegal and criminal activities;

(7) Having received criminal punishment for fraud;

(8) Causing the victim's death, mental disorder or other serious consequences;

(9) Other serious circumstances.

The person in charge directly responsible for the unit and other directly responsible personnel commit fraud in the name of the unit, and the proceeds of fraud are owned by the unit, and the amount is more than 50,000 to 654.38+10,000 yuan, and the criminal responsibility of the above-mentioned personnel shall be investigated in accordance with the provisions of Article 151 of the Criminal Law; If the amount is more than 200,000 yuan but less than 300,000 yuan, the criminal responsibility of the above-mentioned personnel shall be investigated in accordance with the provisions of Article 152 of the Criminal Law.

For the crime of * * * with the nature of fraud, the amount of the crime should be determined by the amount of the actor's participation in the crime of * * * with the nature of fraud, and the punishment should be given according to the status, role and illegal income of the actor.

Fraud has been started, but the property cannot be obtained due to reasons other than the will of the actor, which is an attempted fraud. Attempted fraud, if the circumstances are serious, should also be convicted and punished according to law.

The higher people's courts of all provinces, autonomous regions and municipalities directly under the Central Government may, according to the economic development of the region and considering the social security situation, determine that the amount of personal fraud in the region is large and the amount of unit fraud is huge within the range of "2,000 yuan to 4,000 yuan" and "30,000 yuan to 50,000 yuan" respectively, investigate the criminal responsibility of the relevant personnel, and determine the applicable criminal law with reference to the amount stipulated in the fourth paragraph.

When calculating the amount of fraud, the amount returned before the crime should be deducted and determined according to the actual amount not returned. When sentencing, the amount defrauded many times can be considered as aggravating circumstances.

If the perpetrator commits fraud, the property seized or frozen after the crime and the fruits thereof shall be returned to the victim if the ownership is clear; If the ownership is unclear, it can be returned to the victim according to the proportion of the money and goods defrauded by the victim to the total amount of seized, frozen property and fruits; If it can be determined that the seized or frozen property and its fruits do not belong to the identified victims, but it cannot be returned to the unidentified victims, it shall be turned over to the state treasury according to law.

If the perpetrator has used the fraudulent property to repay personal debts, pay for goods or other economic activities, and the other party knows that it is fraudulent property, it is obtained in bad faith and should be recovered; If it is obtained in good faith, it will not be taken back.

The monetary amount used in this interpretation refers to the RMB amount. If a specific case involves foreign currency, it shall be converted into RMB according to the foreign exchange quotation published by the State Administration of Foreign Exchange at the time of the act.

In this interpretation, "above" includes this number. Case analysis of fund-raising fraud

[case]

Since 200 1, He Mou and Liu Mou have borrowed money from unspecified social objects in their own names and promised to repay the principal and interest within a certain period (monthly interest rate 1-2 points) during the establishment of Hefei Plastic Factory, Jiangxi Feifei Food Factory and Hefei Supermarket in Lianhua County. Especially since 2006, due to the pressure of a high-interest creditor in another county to repay the principal and interest, he and Liu still borrowed money from more people in the society on the grounds of lack of funds to set up a factory, and the monthly interest rate was as high as 5 cents to 1 minute. The money borrowed from the latter is basically used to repay the loan principal and interest due earlier, and so on. By the time of the crime in June 2007, he and Liu * * * had borrowed from 1 1 8633500 yuan, of which 1875000 yuan had been repaid, with interest of 2493300 yuan (excluding loans and repayment of principal and interest by high-interest creditors).

[Disagree]

During the trial of this case, there are three opinions on the qualitative problem of He Mou and Liu Mou's high-interest loan behavior.

The first opinion is that He and both borrowed money from many people in the society at high interest rates and issued IOUs. After 2006, although fraudulent methods were used for borrowing purposes, some of the loans were returned and interest was paid, indicating that He Mou and Liu Mou did not aim at illegal possession, but for illegal profits, and their actions constituted the crime of illegally absorbing public deposits.

The second opinion is that he and Liu constitute the crime of illegally absorbing public deposits and the crime of fund-raising fraud, and they are punished for several crimes. The reason is that he and Liu borrowed money for business before 2006, not for illegal possession, but from the public, which disturbed the national financial order and constituted the crime of illegally absorbing public deposits. After 2006, borrowing in the name of operation, the high-interest loan it implemented was basically used to repay the principal and interest of the last loan, and the fictitious loan purpose was used to defraud the loan to repay the principal and interest of the last loan, indicating that it subjectively had the purpose of illegally occupying other people's funds and objectively caused losses to many lenders, which constituted the crime of fund-raising fraud.

The third opinion is that He Mou and Liu Mou borrowed money from many people in the society in the name of running a business and taking high returns as bait. Especially since 2006, they borrowed money on the grounds of insufficient funds for the preparation and expansion of enterprises. In fact, they used the way of robbing Peter to pay Paul to repay the loan principal and interest due earlier with follow-up loans, which is a fictitious loan use behavior, and the whereabouts of a considerable number of loans are unknown, resulting in the failure to repay the loans of many victims, which is subjectively illegal.

[analysis]

The author agrees with the third opinion.

Whether this case constitutes the crime of illegally absorbing public deposits or the crime of fund-raising fraud depends on whether the high-interest borrowing behavior carried out by He and Liu is aimed at illegal possession.

The crime of illegally absorbing public deposits refers to the act of illegally absorbing public deposits or absorbing public deposits in disguise in violation of relevant state regulations, disrupting financial order. The crime of fund-raising fraud refers to the act of illegally raising a large amount of funds from the public for the purpose of illegal possession by fictional facts and concealing the truth. The crime of illegally absorbing public deposits and the crime of fund-raising fraud are objectively manifested as illegal fund-raising from the public. The key to the difference lies in whether the actor subjectively has the purpose of illegal possession. The perpetrator of the crime of illegally absorbing public deposits has no subjective purpose of illegal possession, only the purpose of illegal profit. The perpetrator of the crime of fund-raising fraud subjectively has the purpose of illegal possession. Illegal fund-raising for the purpose of illegal possession, or intentional illegal possession of other people's funds in the process of illegal fund-raising, constitute the crime of fund-raising fraud.

In this case, he and Liu borrowed money from the public at high interest rate in order to raise funds for starting and operating enterprises. At this time, their subjective purpose was to make illegal profits. After 2006, when a high-interest creditor repaid the due principal and interest of the loan, the problem that he and Liu were unable to repay the borrower's funds was exposed. However, in order to cover up this fact, he and Liu used the latter loan to repay the principal and interest of the previous loan, knowing that they were unable to repay the loan. They still used the high interest return as a bait to trick the public into lending them a lot of money, which was a kind of concealment. He and Liu agreed to borrow money at a monthly interest rate of 5 cents to 1 minute, which means that they need to pay the lender interest of 1 more than 10,000 yuan every month, and with the continuous increase of the loan amount and interest, the possibility of returning the lender's principal and interest will become smaller and smaller, which he and Liu both know. In addition, before 2006, they and Liu didn't intentionally occupy the loan funds, but after 2006, knowing that they were unable to repay the loan, they still borrowed from more people in the society with high interest returns as bait, which made the loan before 2006 unable to be repaid. By the time of the crime, the loan of18,633,500 yuan had only repaid the lender's principal and interest of 4,368,300 yuan, leaving 65,400 yuan. This shows that in the whole process of borrowing, his and Liu's criminal intentions have changed, from the crime of illegally profiting to the crime of illegally occupying other people's funds, which has caused great losses to the borrower and constituted the crime of fund-raising fraud. Criteria for filing a case

According to the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Prosecution Standards of Economic Crime Cases, anyone who commits fraudulent illegal fund-raising for the purpose of illegal possession and is suspected of one of the following circumstances shall be prosecuted:

1, personal fund-raising fraud, the amount is more than 654.38+10,000 yuan;

This mainly refers to illegal fund-raising by fraudulent means for the purpose of illegal possession, and the accumulated amount of single fund-raising fraud has reached more than 654.38+10,000 yuan. The so-called "for the purpose of illegal possession" means that criminals have the subjective purpose of taking illegally raised funds as their own. The so-called "fraud method" means that the actor uses the fictitious fund-raising purpose to defraud the fund-raising funds with false documents and high returns as bait.

2, the unit fund-raising fraud, the amount of more than 500 thousand yuan.

According to the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Fraud Cases, one of the following circumstances exists. It should be recognized that its behavior belongs to "illegal fund-raising for the purpose of illegal possession and fraud":

(1) escaped with the funds raised;

(2) the fund-raising funds are squandered, which makes it impossible to return the fund-raising;

(three) the use of fund-raising funds for illegal and criminal activities, so that the fund-raising funds can not be returned;

(4) Refusing to return the fund-raising funds due to other fraudulent acts, or making it impossible to return the fund-raising funds. If one of the above-mentioned illegal fund-raising activities amounts to more than 654.38+10,000 yuan, the public security organ shall file a case for investigation.