Viewpoint... Suspected non-prosecution-an effective defense of a suspected usury transfer crime.
Published:
2022-07-22
In a usury on-lending case handled by the author, the procuratorial organ strictly controlled the evidence and did not prosecute the case for insufficient evidence-that is, no prosecution in doubt. Brief of the case The suspect Zou Moumou is related to the informant Zou Mou 1. Since July 14, 2012, Zou Moumou and Zou Moumou 1 and other five people have signed six loan contracts, with a total loan principal of more than 2270 million yuan, with monthly interest rates ranging from 2% to 2.9. Later, because Zou Mou 1 difficult to repay the follow-up money, Zou Mou filed a civil lawsuit. After the first, second and retrial procedures of the civil case, it was decided that Zou Mou 1 and other five people should repay Zou Mou the remaining loan principal of more than 3.14 million yuan and the corresponding interest. Zou Mou 1 and other five people refused to accept the lawsuit and applied to the procuratorial organ for civil protest. In the protest materials, Zou Mou was reported to be suspected of transferring loans at high interest rates. The reason was that Zou Mou lent bank loans of 3 million yuan and 830000 yuan on September 12, 2012 and March 2, 2013 respectively in his own name, and transferred them to Zou Mou 1 on the same day, corresponding to the second loan contract signed by both parties (3.5 million yuan, 2.6 per month, the loan period is 2 months) and the third loan contract (1 million yuan, 2.9 monthly interest rate, loan period is 3 months). The procuratorial organ then handed over the clues of the above-mentioned case to the public security organ for handling, and the public security organ filed the case for investigation. After obtaining the loan transfer vouchers of the two loans, the public security organ confirmed that the two loans were true and the bank interest rate was 0.95 per cent per month. After obtaining the details of Zou's loan account, it was confirmed that the two loans were lent to Zou 1 on the day they were issued. The public security organ believes that Zou has the act of taking bank credit funds and lending to others at high interest rates, and the amount of illegal proceeds from Zou's usury transfer should be: the interest earned by Zou's transfer bank loan to Zou 1 minus the interest paid by Zou to the bank. In December 2020, the public security organ transferred the case to the local procuratorial organ for review and prosecution. Case handling process and results After being examined by the procuratorate and returned twice for supplementary investigation, the procuratorate held that the facts of the crime identified by the public security organ were unclear and the evidence was insufficient, and decided not to prosecute Zou in accordance with the provisions of paragraph 4 of Article 175 of the the People's Republic of China Criminal procedure Law. Focus of this case On the day the loan was issued, Zou lent the loan to Zou 1, can it be determined that Zou has the criminal intent to transfer the loan for profit and the act of taking the loan from a financial institution? Representation of the defense The defender pointed out that Zou did not have the criminal intention of re-lending for profit and the act of taking credit funds from financial institutions, which did not constitute the crime of usury on-lending. First, the actor has no subjective purpose of re-lending for profit. First of all, Zou Moumou himself and the participating companies do not lack funds. The reason why he borrows money from financial institutions on a daily basis is entirely the normal production and operation mode and production and operation behavior of the company, because in the production and operation, the funds of the company basically All have targeted intended uses. For example, if you need 1 million yuan to purchase a batch of raw materials, you must prepare 1 million yuan in advance for standby, except for special circumstances, the amount is generally no longer used for other purposes, but in this case, it often results in capital binding and makes the liquidity of the enterprise worse, so the enterprise often borrows from the bank to increase liquidity in case of emergency. Secondly, the interest profit that can be obtained through usury is also far lower than its normal business income, Zou, as an entrepreneur, will not give up the end to do such things that go against common sense and harm their own interests. Therefore, Zou has no necessity and objective demand basis for re-lending for profit. It constitutes the crime of usury on-lending, which subjectively requires the actor to have the purpose of on-lending for profit before obtaining the credit funds of the financial institution; on the contrary, if the actor obtains the loan from the financial institution for a legitimate purpose, there is an emergency, or it is found that the funds are abundant or not needed, and then the funds are on-lending to others and interest higher than the loan interest rate is charged from it, the perpetrator should not be found to have the purpose of re-lending for profit under the criminal law. In this case, there is no evidence to prove that Zou has the purpose of re-lending for profit at the time of the loan, Zou only after obtaining the loan, the loan will be changed to another person, then from the subjective elements of the crime, is not a crime. Second, the perpetrator did not take out loans from financial institutions. The so-called arbitrage of loans from financial institutions refers to the use of false reasons for loans, or the provision of deceptive loan information, to apply for loans from financial institutions. For the two loans involved in the case, Zou Moumou did not apply for false loan reasons or deceptive loan conditions when borrowing from the bank, and the public security organs did not find such evidence after investigation. Therefore, Zou Moumou did not have the subjective elements of "taking" behavior, whether based on facts or in accordance with the principle of "favoring the defendant in case of doubt" and the "principle of modesty, its behavior does not belong to the" taking "behavior. And if there is not enough evidence to prove that the perpetrator has "arbitrage behavior", then it cannot be determined that the perpetrator constitutes the crime of usury. Third, the minor circumstances did not cause losses to the bank. The crime of usury on-lending violates the order of national financial management, and the perpetrator transfers credit funds to other uses and makes profits, which makes the credit funds of banks and other financial institutions face a high-risk state. It has been nearly 10 years since the two loans involved in this case have already paid off all the principal and interest of the bank. And the two loans involved are mortgages themselves, not credit loans, and there is no credit risk to the bank. Conclusion and recommendations Whether it constitutes the crime of usury on-lending can be judged from the following aspects: the crime must be manifested as the act of "taking" the credit funds of financial institutions to lend to others at a large amount for the purpose of on-lending for profit. First, subjectively, the crime of usury on-lending requires that the perpetrator must have the purpose of on-lending for profit before obtaining the credit funds of the financial institution, and the crime can only be constituted by intention, and negligence does not constitute this crime; on the contrary, if the perpetrator After obtaining a loan from a financial institution for a legitimate purpose, there is an emergency, or it is found that the fund is abundant or unnecessary, and then the fund is transferred to others, and from which interest is charged higher than the interest rate of the loan, the perpetrator should not be found to have the purpose of re-lending for profit under the criminal law. Second, to see whether it is the credit funds of financial institutions, if it is the normal procedure to obtain the credit funds of financial institutions, it does not meet the requirements of this crime. The arbitrage here refers to applying for a loan from a bank or other financial institution on false loan grounds or loan conditions, and obtaining a loan that is not available through normal procedures. Third, judge from the amount of illegal income to see whether the illegal income obtained from usury on-lending has reached more than 500000 yuan (the (II) of the new "filing standard" in 2022 is adjusted to 500000 yuan). With regard to the determination of "illegal income"-it should be noted that the amount of illegal income is not the interest earned on usury, but the interest difference, that is, the difference between the interest earned on usury and the interest on loans obtained from financial institutions. In short, to constitute the crime, the three elements of "taking illegal gains for the purpose of re-lending for profit" are indispensable. The lawyer's effective defense can start from the above points.
In a usury on-lending case handled by the author, the procuratorial organ strictly controlled the evidence and did not prosecute the case for insufficient evidence-that is, no prosecution in doubt.
Brief of the case
The suspect Zou Moumou is related to the informant Zou Mou 1. Since July 14, 2012, Zou Moumou and Zou Moumou 1 and other five people have signed six loan contracts, with a total loan principal of more than 2270 million yuan, with monthly interest rates ranging from 2% to 2.9. Later, because Zou Mou 1 difficult to repay the follow-up money, Zou Mou filed a civil lawsuit. After the first, second and retrial procedures of the civil case, it was decided that Zou Mou 1 and other five people should repay Zou Mou the remaining loan principal of more than 3.14 million yuan and the corresponding interest. Zou Mou 1 and other five people refused to accept the lawsuit and applied to the procuratorial organ for civil protest. In the protest materials, Zou Mou was reported to be suspected of transferring loans at high interest rates. The reason was that Zou Mou lent bank loans of 3 million yuan and 830000 yuan on September 12, 2012 and March 2, 2013 respectively in his own name, and transferred them to Zou Mou 1 on the same day, corresponding to the second loan contract signed by both parties (3.5 million yuan, 2.6 per month, the loan period is 2 months) and the third loan contract (1 million yuan, 2.9 monthly interest rate, loan period is 3 months). The procuratorial organ then handed over the clues of the above-mentioned case to the public security organ for handling, and the public security organ filed the case for investigation. After obtaining the loan transfer vouchers of the two loans, the public security organ confirmed that the two loans were true and the bank interest rate was 0.95 per cent per month. After obtaining the details of Zou's loan account, it was confirmed that the two loans were lent to Zou 1 on the day they were issued. The public security organ believes that Zou has the act of taking bank credit funds and lending to others at high interest rates, and the amount of illegal proceeds from Zou's usury transfer should be: the interest earned by Zou's transfer bank loan to Zou 1 minus the interest paid by Zou to the bank. In December 2020, the public security organ transferred the case to the local procuratorial organ for review and prosecution.
Case handling process and results
After being examined by the procuratorate and returned twice for supplementary investigation, the procuratorate held that the facts of the crime identified by the public security organ were unclear and the evidence was insufficient, and decided not to prosecute Zou in accordance with the provisions of paragraph 4 of Article 175 of the the People's Republic of China Criminal procedure Law.
Focus of this case
On the day the loan was issued, Zou lent the loan to Zou 1, can it be determined that Zou has the criminal intent to transfer the loan for profit and the act of taking the loan from a financial institution?
Representation of the defense
The defender pointed out that Zou did not have the criminal intention of re-lending for profit and the act of taking credit funds from financial institutions, which did not constitute the crime of usury on-lending.
First, the actor has no subjective purpose of re-lending for profit.First of all, Zou Moumou himself and the participating companies do not lack funds. The reason why he borrows money from financial institutions on a daily basis is entirely the normal production and operation mode and production and operation behavior of the company, because in the production and operation, the funds of the company basically All have targeted intended uses. For example, if you need 1 million yuan to purchase a batch of raw materials, you must prepare 1 million yuan in advance for standby, except for special circumstances, the amount is generally no longer used for other purposes, but in this case, it often results in capital binding and makes the liquidity of the enterprise worse, so the enterprise often borrows from the bank to increase liquidity in case of emergency. Secondly, the interest profit that can be obtained through usury is also far lower than its normal business income, Zou, as an entrepreneur, will not give up the end to do such things that go against common sense and harm their own interests. Therefore, Zou has no necessity and objective demand basis for re-lending for profit.
It constitutes the crime of usury on-lending, which subjectively requires the actor to have the purpose of on-lending for profit before obtaining the credit funds of the financial institution; on the contrary, if the actor obtains the loan from the financial institution for a legitimate purpose, there is an emergency, or it is found that the funds are abundant or not needed, and then the funds are on-lending to others and interest higher than the loan interest rate is charged from it, the perpetrator should not be found to have the purpose of re-lending for profit under the criminal law. In this case, there is no evidence to prove that Zou has the purpose of re-lending for profit at the time of the loan, Zou only after obtaining the loan, the loan will be changed to another person, then from the subjective elements of the crime, is not a crime.
Second, the perpetrator did not take out loans from financial institutions.The so-called arbitrage of loans from financial institutions refers to the use of false reasons for loans, or the provision of deceptive loan information, to apply for loans from financial institutions. For the two loans involved in the case, Zou Moumou did not apply for false loan reasons or deceptive loan conditions when borrowing from the bank, and the public security organs did not find such evidence after investigation. Therefore, Zou Moumou did not have the subjective elements of "taking" behavior, whether based on facts or in accordance with the principle of "favoring the defendant in case of doubt" and the "principle of modesty, its behavior does not belong to the" taking "behavior. And if there is not enough evidence to prove that the perpetrator has "arbitrage behavior", then it cannot be determined that the perpetrator constitutes the crime of usury.
Third, the minor circumstances did not cause losses to the bank.The crime of usury on-lending violates the order of national financial management, and the perpetrator transfers credit funds to other uses and makes profits, which makes the credit funds of banks and other financial institutions face a high-risk state. It has been nearly 10 years since the two loans involved in this case have already paid off all the principal and interest of the bank. And the two loans involved are mortgages themselves, not credit loans, and there is no credit risk to the bank.
Conclusion and recommendations
Whether it constitutes the crime of usury on-lending can be judged from the following aspects: the crime must be manifested as the act of "taking" the credit funds of financial institutions to lend to others at a large amount for the purpose of on-lending for profit.
First,Subjectively, the crime of usury on-lending requires that the perpetrator must have the purpose of on-lending for profit before obtaining the credit funds of the financial institution, and the crime can only be constituted by intention, and negligence does not constitute this crime; on the contrary, if the perpetrator obtains a loan from a financial institution for a legitimate purpose, there is an emergency, or it is found that the funds are abundant or unnecessary, and then the funds are on-lent to others, and from which interest is charged higher than the interest rate of the loan, the perpetrator should not be found to have the purpose of re-lending for profit under the criminal law.
Second,To see if it is the credit funds of financial institutions, if it is the normal procedure to obtain the credit funds of financial institutions, it does not meet the requirements of this crime. The arbitrage here refers to applying for a loan from a bank or other financial institution on false loan grounds or loan conditions, and obtaining a loan that is not available through normal procedures.
Third,Judging from the amount of illegal income, see whether the illegal income obtained from usury on-lending has reached more than 500000 yuan (the (II) of the new "filing standard" in 2022 is adjusted to 500000 yuan). With regard to the determination of "illegal income"-it should be noted that the amount of illegal income is not the interest earned on usury, but the interest difference, that is, the difference between the interest earned on usury and the interest on loans obtained from financial institutions.
In short, to constitute the crime, the three elements of "taking illegal gains for the purpose of re-lending for profit" are indispensable. The lawyer's effective defense can start from the above points.
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