Viewpoint... The defense point of the crime of fund-raising fraud.
Published:
2023-05-29
There is a rumor in the market: "Success is a legendary entrepreneur, and failure is a fund-raising fraud criminal." The company's operation and project development are inseparable from the support of funds. Therefore, fund-raising has become a means for many people to expand their business scale. However, in practice, some illegal personnel illegally raise funds by means of fraud, illegally occupy the funds raised by others, and cause economic losses to others, which will constitute the crime of fund-raising fraud. 1. fund-raising fraud legal provisions Article 192 of the Criminal Law stipulates that for the purpose of illegal possession, anyone who uses fraudulent methods to illegally raise funds shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention and a fine of not less than 20,000 yuan but not more than 200,000 yuan; if the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years and a fine of not more than 50,000 yuan but not more than 500,000 yuan. The amount is particularly serious, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be sentenced to a fine of not less than 50,000 yuan but not more than 500,000 yuan or confiscation of property. Sentencing Rules for the Crime of 2. Fund-raising Fraud 1, the amount of individual fund-raising fraud in 100000 yuan or more is "large amount", the amount of unit fund-raising fraud in 500000 yuan or more is "large amount", should be filed for prosecution, sentenced to not more than five years of fixed-term imprisonment or criminal detention, and fined; 2, the amount of individual fund-raising fraud in 300000 yuan or more is "huge amount" (special circumstances are 240000), the amount of unit fund-raising fraud in 1.5 million yuan or more is "huge amount" (special circumstances are 1.2 million), sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and fined; 3. If the amount of individual fund-raising fraud is above 1 million yuan, it is "extremely large" (800000 in special circumstances), and if the amount of unit fund-raising fraud is above 5 million yuan, it is "extremely large" (4 million in special circumstances), and shall be sentenced to fixed-term imprisonment of more than 10 years or life imprisonment, and fined or confiscated property; Other (particularly) serious circumstances refer to:(1) impersonating a state organ or public welfare organization to carry out fund-raising fraud;(2) causing the victim to commit suicide, mental disorder or other serious consequences;(3) the victim is mainly a disabled person, the elderly or a person who is incapacitated. The crime of 3. fund-raising fraud must have three elements at the same time. (1) for the purpose of illegal possession; (2) the use of fraudulent methods; 3. Illegal fundraising. 4. Fundraising Fraud Defense Point The first category, not guilty point Innocence point one, the perpetrator does not have the purpose of illegal possession. The Supreme People's Court on the trial of illegal fund-raising criminal cases of the specific application of law. The interpretation of several issues (2022) stipulates that the use of fraudulent methods to illegally raise funds under one of the following circumstances can be regarded as "for the purpose of illegal possession": (I) the funds raised are not used for production and business operations or are used for production and business operations and the scale of the funds raised is obviously out of proportion, so that the funds raised cannot be returned; (II) wantonly squandering fund-raising funds, resulting in the non-return of the fund-raising funds; (III) evades hiding with fund-raising funds; (IV) use the funds raised for illegal and criminal activities; (V) to withdraw, transfer funds, conceal property and evade the return of funds; (VI) concealing or destroying accounts, or engaging in false bankruptcy or bankruptcy to evade the return of funds; The (VII) refuses to account for the whereabouts of the funds and evades the return of the funds; (VIII) other circumstances in which the purpose of illegal possession can be determined. The purpose of illegal possession in the crime of fund-raising fraud should be determined by distinguishing the circumstances. If part of the illegal fund-raising behavior of the perpetrator has the purpose of illegal possession, the fund-raising money involved in this part of the illegal fund-raising behavior shall be convicted and punished as the crime of fund-raising fraud; if some of the illegal fund-raising joint crime has the purpose of illegal possession, if the other actors have no common intention and behavior of illegally possessing the fund-raising money, the perpetrator with the purpose of illegal possession shall be convicted and punished for the crime of fund-raising fraud. Performance that does not have the purpose of illegal occupation: (I) evidence in the record does not reflect the perpetrator's profligacy or illegal transfer of property. (II), after the turnover of funds, the actor takes positive measures such as personal fund-raising, settlement with the relative or confirmation of the amount of debt can confirm that the subjective purpose of illegal possession is not. The funds absorbed by the (III) actor are mainly used in normal production and business activities, and do not belong to the situation with the purpose of illegal possession. Not guilty point 2. the perpetrator did not use the "fraud method" "Fraud method" refers to the means by which the perpetrator uses fictitious fund-raising purposes and uses false supporting documents and high rates of return as bait to defraud fund-raising funds. In practice, the methods often adopted by the actors are: fabricating enterprises or enterprise plans that do not actually exist, forging relevant approval documents, and defrauding the trust of the public in the name of breeding, planting, and producing products that can obtain high returns. I believe that its investment will be able to get several times and dozens of times the return, but in fact, most of these are illusory. Objectively, the specific manifestations of the lack of fraudulent means of fund-raising are: (I) there is no evidence to prove that the perpetrator has the intention to commit fraud. (II) actors objectively did not commit fraud and subjectively did not have the common intent to defraud clients of their investments. The perpetrator of the (III) did not use fraudulent means such as fictitious fund-raising purposes, using false supporting documents and high rates of return as bait to obtain fund-raising funds. The (IV) actor's absorption of funds is a function arranged by the performing unit and is unaware of the purpose and whereabouts of the unit after receiving the money. The acquittal point 3. did not implement the illegal absorption of public deposits. The actor's loan object is his comrades, colleagues, relatives, friends and other specific personnel, not the social unspecific object, not the public. The point of not guilty 4. the argument of insufficient evidence As the crime of fund-raising fraud will inevitably involve the problem of amount calculation and verification, the appraisal opinions in the form of "report" and "calculation and verification report" are the key evidence of the crime of fund-raising fraud. Starting from the appraisal opinions, the argument of insufficient evidence is often effective. Defense lawyers can cross-examine whether the appraisal opinions have the qualification of evidence and the strength of proof through the entrusting unit, appraisal unit, appraisal method, process, materials and other aspects in the process of making the appraisal opinions. The second category, misdemeanor defense point: does not constitute the crime of fund-raising fraud, constitutes the crime of illegally absorbing public deposits. To determine whether the defendant constitutes the crime of fund-raising fraud, we should focus on the "coming" and "going" of funds. If the perpetrator only participates in the absorption of funds according to the arrangement of the unit, but does not know the purpose and whereabouts of the unit after receiving the money, he shall be convicted and punished for the crime of illegally absorbing public deposits, and shall not be classified as the crime of fund-raising fraud; If the whereabouts of the fund-raising funds have not been identified, it cannot be determined that the perpetrator has the purpose of illegal possession of the fund-raising funds. Category III, light points If the crime is light, it constitutes a unit crime, not an individual crime, and shall be investigated for criminal responsibility for the unit crime; The point of misdemeanor 2. the amount of the crime. The amount of fund-raising fraud should be calculated based on the amount actually defrauded by the perpetrator; the part that has been returned before the incident should be deducted; but the advertising fees, intermediary fees, handling fees, rebates, or expenses paid by the perpetrator for the implementation of fund-raising fraud activities For bribes, gifts and other expenses, they shall not be deducted; the interest paid by the perpetrator for the implementation of fund-raising fraud activities shall be included in the amount of the fraud, except for the principal. The third point of the light crime: the argument of status and role. The crime of fund-raising fraud mostly occurs in the form of gangs. The status, role and amount of money involved in each unit should be treated differently. Those who are not involved in fund-raising fraud within the unit should not be dealt with criminally. For those who are involved in fund-raising fraud, but are not the main responsible personnel in the unit, they should start with the amount of money involved and the amount of money (whether from relatives and friends), etc, distinguish from the main responsible person to get a lighter punishment.
There is a rumor in the market: "Success is a legendary entrepreneur, and failure is a fund-raising fraud criminal." The company's operation and project development are inseparable from the support of funds. Therefore, fund-raising has become a means for many people to expand their business scale. However, in practice, some illegal personnel illegally raise funds by means of fraud, illegally occupy the funds raised by others, and cause economic losses to others, which will constitute the crime of fund-raising fraud.
1. fund-raising fraud legal provisions
Article 192 of the Criminal Law stipulates that for the purpose of illegal possession, anyone who uses fraudulent methods to illegally raise funds shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention and a fine of not less than 20,000 yuan but not more than 200,000 yuan; if the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years and a fine of not more than 50,000 yuan but not more than 500,000 yuan. The amount is particularly serious, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be sentenced to a fine of not less than 50,000 yuan but not more than 500,000 yuan or confiscation of property.
Sentencing Rules for the Crime of 2. Fund-raising Fraud
1, the amount of individual fund-raising fraud in 100000 yuan or more is "large amount", the amount of unit fund-raising fraud in 500000 yuan or more is "large amount", should be filed for prosecution, sentenced to not more than five years of fixed-term imprisonment or criminal detention, and fined;
2, the amount of individual fund-raising fraud in 300000 yuan or more is "huge amount" (special circumstances are 240000), the amount of unit fund-raising fraud in 1.5 million yuan or more is "huge amount" (special circumstances are 1.2 million), sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and fined;
3. If the amount of individual fund-raising fraud is above 1 million yuan, it is "extremely large" (800000 in special circumstances), and if the amount of unit fund-raising fraud is above 5 million yuan, it is "extremely large" (4 million in special circumstances), and shall be sentenced to fixed-term imprisonment of more than 10 years or life imprisonment, and fined or confiscated property;
Other (particularly) serious circumstances refer to:(1) impersonating a state organ or public welfare organization to carry out fund-raising fraud;(2) causing the victim to commit suicide, mental disorder or other serious consequences;(3) the victim is mainly a disabled person, the elderly or a person who is incapacitated.
The crime of 3. fund-raising fraud must have three elements at the same time.
(1) for the purpose of illegal possession;
(2) the use of fraudulent methods;
3. Illegal fundraising.
4. Fundraising Fraud Defense Point
The first category, not guilty point
Innocence point one, the perpetrator does not have the purpose of illegal possession.
The Supreme People's Court on the trial of illegal fund-raising criminal cases of the specific application of law.
The interpretation of several issues (2022) stipulates that the use of fraudulent methods to illegally raise funds under one of the following circumstances can be regarded as "for the purpose of illegal possession":
(I) the funds raised are not used for production and business operations or are used for production and business operations and the scale of the funds raised is obviously out of proportion, so that the funds raised cannot be returned;
(II) wantonly squandering fund-raising funds, resulting in the non-return of the fund-raising funds;
(III) evades hiding with fund-raising funds;
(IV) use the funds raised for illegal and criminal activities;
(V) to withdraw, transfer funds, conceal property and evade the return of funds;
(VI) concealing or destroying accounts, or engaging in false bankruptcy or bankruptcy to evade the return of funds;
The (VII) refuses to account for the whereabouts of the funds and evades the return of the funds;
(VIII) other circumstances in which the purpose of illegal possession can be determined.
The purpose of illegal possession in the crime of fund-raising fraud should be determined by distinguishing the circumstances. If part of the illegal fund-raising behavior of the perpetrator has the purpose of illegal possession, the fund-raising money involved in this part of the illegal fund-raising behavior shall be convicted and punished as the crime of fund-raising fraud; if some of the illegal fund-raising joint crime has the purpose of illegal possession, if the other actors have no common intention and behavior of illegally possessing the fund-raising money, the perpetrator with the purpose of illegal possession shall be convicted and punished for the crime of fund-raising fraud.
Performance that does not have the purpose of illegal occupation:
(I) evidence in the record does not reflect the perpetrator's profligacy or illegal transfer of property.
(II), after the turnover of funds, the actor takes positive measures such as personal fund-raising, settlement with the relative or confirmation of the amount of debt can confirm that the subjective purpose of illegal possession is not.
The funds absorbed by the (III) actor are mainly used in normal production and business activities, and do not belong to the situation with the purpose of illegal possession.
Not guilty point 2. the perpetrator did not use the "fraud method"
"Fraud method" refers to the means by which the perpetrator uses fictitious fund-raising purposes and uses false supporting documents and high rates of return as bait to defraud fund-raising funds. In practice, the methods often adopted by the actors are: fabricating enterprises or enterprise plans that do not actually exist, forging relevant approval documents, and defrauding the trust of the public in the name of breeding, planting, and producing products that can obtain high returns. I believe that its investment will be able to get several times and dozens of times the return, but in fact, most of these are illusory.
Objectively, the specific manifestations of the lack of fraudulent means of fund-raising are:
(I) there is no evidence to prove that the perpetrator has the intention to commit fraud.
(II) actors objectively did not commit fraud and subjectively did not have the common intent to defraud clients of their investments.
The perpetrator of the (III) did not use fraudulent means such as fictitious fund-raising purposes, using false supporting documents and high rates of return as bait to obtain fund-raising funds.
The (IV) actor's absorption of funds is a function arranged by the performing unit and is unaware of the purpose and whereabouts of the unit after receiving the money.
The acquittal point 3. did not implement the illegal absorption of public deposits.
The actor's loan object is his comrades, colleagues, relatives, friends and other specific personnel, not the social unspecific object, not the public.
The point of not guilty 4. the argument of insufficient evidence
As the crime of fund-raising fraud will inevitably involve the problem of amount calculation and verification, the appraisal opinions in the form of "report" and "calculation and verification report" are the key evidence of the crime of fund-raising fraud. Starting from the appraisal opinions, the argument of insufficient evidence is often effective.
Defense lawyers can cross-examine whether the appraisal opinions have the qualification of evidence and the strength of proof through the entrusting unit, appraisal unit, appraisal method, process, materials and other aspects in the process of making the appraisal opinions.
The second category, misdemeanor defense point: does not constitute the crime of fund-raising fraud, constitutes the crime of illegally absorbing public deposits.
To determine whether the defendant constitutes the crime of fund-raising fraud, we should focus on the "coming" and "going" of funds. If the perpetrator only participates in the absorption of funds according to the arrangement of the unit, but does not know the purpose and whereabouts of the unit after receiving the money, he shall be convicted and punished for the crime of illegally absorbing public deposits, and shall not be classified as the crime of fund-raising fraud;
If the whereabouts of the fund-raising funds have not been identified, it cannot be determined that the perpetrator has the purpose of illegal possession of the fund-raising funds.
Category III, light points
If the crime is light, it constitutes a unit crime, not an individual crime, and shall be investigated for criminal responsibility for the unit crime;
The point of misdemeanor 2. the amount of the crime.
The amount of fund-raising fraud should be calculated based on the amount actually defrauded by the perpetrator; the part that has been returned before the incident should be deducted; but the advertising fees, intermediary fees, handling fees, rebates, or expenses paid by the perpetrator for the implementation of fund-raising fraud activities For bribes, gifts and other expenses, they shall not be deducted; the interest paid by the perpetrator for the implementation of fund-raising fraud activities shall be included in the amount of the fraud, except for the principal.
The third point of the light crime: the argument of status and role.
The crime of fund-raising fraud mostly occurs in the form of gangs. The status, role and amount of money involved in each unit should be treated differently. Those who are not involved in fund-raising fraud within the unit should not be dealt with criminally. For those who are involved in fund-raising fraud, but are not the main responsible personnel in the unit, they should start with the amount of money involved and the amount of money (whether from relatives and friends), etc, distinguish from the main responsible person to get a lighter punishment.
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