Viewpoint... Who will pay for the loss caused by illegal absorption of public deposits?
Published:
2024-08-12
Recently, the author received a criminal judgment of first instance in the case of illegal absorption of public deposits by a certain A, in which the judgment of the return of stolen goods and compensation is expressed as "to recover the illegal income of a certain A; A and the actual controller of the group company shall bear the joint liability for refund and compensation within the scope of the losses caused by it." According to the provisions of Article 64 of the Criminal Law, the illegal gains of criminals should be recovered, and there is no dispute in judicial practice, but there are different standards in the practice of local courts as to whether the general personnel involved in non-absorption should bear the joint liability for refund and compensation with the actual controller of the company. The author also wants to take advantage of this case to discuss with you the subject of the responsibility for the refund.
Recently, the author received a criminal judgment of first instance in the case of illegal absorption of public deposits by a certain A, in which the judgment of the return of stolen goods and compensation is expressed as "to recover the illegal income of a certain A; A and the actual controller of the group company shall bear the joint liability for refund and compensation within the scope of the losses caused by it." According to the provisions of Article 64 of the Criminal Law, the illegal gains of criminals should be recovered, and there is no dispute in judicial practice, but there are different standards in the practice of local courts as to whether the general personnel involved in non-absorption should bear the joint liability for refund and compensation with the actual controller of the company. The author also wants to take advantage of this case to discuss with you the subject of the responsibility for the refund.
The basis for the treatment of the subject of the responsibility for the refund of compensation in various parts of the 1..
1. Joint and several liability for reimbursement
The Shanghai Higher People's Court, the Shanghai Municipal People's Procuratorate, and the Shanghai Municipal Public Security Bureau "Guiding Opinions on Handling Cases of Involved Illegal Fund-raising Crimes" (Shanghai High Law [2018] No. 360) Article 11, paragraph 2, stipulates: "Defendants involved in illegal fund-raising crimes (including salesmen who are held criminally responsible) shall be liable for refunding and compensation for the losses caused by their criminal acts, in addition to the illegal gains such as commissions and commissions that should be recovered in accordance with the law, they may also be ordered to bear the liability for refund and compensation within the scope of the losses caused by their criminal acts." That is, the general personnel involved in non-smoking should also bear the liability for joint reimbursement with the actual controller of the company to the extent of the loss caused by them.
2. Independent responsibility
Article 24 of the minutes of the meeting on the application of law in handling illegal fund-raising criminal cases (Yu Gao Fa [2018] No. 186) issued by Chongqing Municipal High People's court, Chongqing Municipal People's Procuratorate and Chongqing Municipal Public Security Bureau stipulates that "there is a difference between the scope of recovering or ordering the return of illegal income and the joint and several liability of the joint defendants for the losses of fund-raising participants in civil proceedings, the recovery or refund of illegal income does not belong to civil compensation litigation, and does not involve civil joint and several liability. It should be limited to the actual illegal income of the perpetrator. If it has not been recovered or cannot be recovered, it may be ordered to refund according to law, and the refund should also be based on the actual illegal income. limit." That is, as long as they are involved in non-smoking, regardless of the master or slave, they only need to return the illegal income, and do not need to bear the responsibility for the loss caused by it.
3, joint and several compensation liability and independent liability combined.
Article 6 "on the scope of the defendant's liability for refund and compensation" in the first Criminal Court of Shandong High Court's "answers to issues related to the trial of illegal fund-raising cases" puts forward that "the organization, planner and commander of fund-raising behavior, the main perpetrators and the main profiteers who actively participate in the crime shall bear the liability for refund and compensation for all losses caused by the illegal fund-raising activities organized, planned, directed and implemented by them. For those who accept the command and management of others to carry out illegal fund-raising activities or only provide support for illegal fund-raising, they can only recover the agency fees, facilitation fees, rebate fees, commissions, commissions and other fees obtained by them, and those who cannot be recovered shall bear the responsibility of refund and compensation." That is, the main personnel shall bear joint and several liability for the losses caused by them, and the general personnel or auxiliary personnel involved in non-absorption shall only return the illegal income and shall not be responsible for their losses.
2. the author's point of view: whether to be responsible for the loss should be based on whether the actor has control, control and disposal rights over the non-absorption proceeds.
As we all know, the recovery and loss rate of non-smoking cases is generally very low. How to properly solve the balance between the recovery and loss of stolen goods and the protection of the legitimate rights and interests of the defendant has become a difficult problem in judicial practice. Once it constitutes a non-absorbing crime, it is bound to face a fine penalty, and the liability for refunding losses takes precedence over the fine penalty. Whether to pay the fine involves commutation and parole during the prison sentence. Therefore, it is not required to actually control, control and dispose of the non-absorbing proceeds. Those who have paid the money have not been required to bear the liability for refunding the loss, and have been punished for their crimes, which is not in line with the criminal policy of combining leniency.
Starting from the basic principle of adapting crime, responsibility and punishment, and combining the relevant provisions of Article 6 of the Supreme People's Court's Reply on the Application of Article 64 of the Criminal Law and the Opinions on Several Issues Concerning the Handling of Criminal Cases of Illegal Fund-raising, the author believes that whether the non-smoking personnel should be responsible for the losses caused by them should not only start from their rank, status and role in the whole crime, the key depends on whether it has the right to control, control and dispose of the non-absorption proceeds, I .e. whether it has the right to possess and dispose of the money involved. For those who organize, lead and initiate non-absorption activities and have the right to decide on the possession, domination and disposal of non-absorption proceeds, they shall bear joint and several liability for refund of the losses in the whole case. However, those who have no right to decide on the disposal and disposal of funds even if they are in a leading position or play an active role in promoting non-absorption activities shall only bear the liability for refund of their illegal proceeds, and shall not bear the liability for the loss. As for the defendant's initiative to refund the loss part, it should be considered as the circumstances of lenient punishment, but it is easier to stimulate the defendant's willingness to refund.
3. case analysis
In a non-smoking case undertaken by the author, although a certain A is nominally a leader of a subsidiary of the group, it has no decision-making power over the non-smoking projects involved in the case. It is entirely implementing the decision of the leaders of the group company. The non-smoking proceeds directly enter the accounts controlled by the group company. A has neither control nor control or disposal power over the non-smoking proceeds. The author believes that the liability for the refund of a certain A should be limited to its illegal income, a court ruled that a certain A's loss and the group company's actual controller to bear the joint responsibility for the refund of the principle of criminal responsibility.
4. epilogue
The combination of punishment and education is the purpose of penalty setting in our country. Criminal judgment should realize the organic unity of legal effect and social effect, so as to combine leniency with strictness and punish as its crime. No matter whether they have the right to control and dispose of the non-sucking proceeds or not, all defendants are required to bear joint and several liability for compensation for their losses and the actual controller (actual possession, control and disposal of the proceeds). On the surface, they are trying to recover the stolen goods as much as possible. In fact, it may happen that the defendant has no money to refund or the amount of compensation is too high and is unwilling to actively raise funds for compensation, which is even more unfavorable for subsequent recovery, nor can it achieve the effect of general and special prevention of penalties. Therefore, for those who have no right to control or dispose of non-absorbing income, the refund should be limited to their illegal income, and for voluntary refund of losses, it should be regarded as the circumstances of lenient punishment.
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