Point of View... How is the act of the lender and the borrower conspiring to defraud the guarantor's property from the case?
Published:
2021-12-30
1. brief In December 2008, Wu XX borrowed the name of Weng XX to establish XX Real Estate Co., Ltd., with Weng XX as the legal representative and Wu XX as the general manager. At the same time, Wu Moumou and Weng Moumou signed an agreement, agreeing that the shareholders of the company are Wu Moumou and Weng Moumou. Weng Moumou does not actually contribute capital to the company and does not participate in the operation of the company. All capital contributions of the company are borne by Wu Moumou, and all external responsibilities of the company are borne by Wu Moumou. In January 2010, the legal person of the company was changed from Weng Moumou to Wu Moumou. On February 3, 2010, Weng Moumou reported to the public security that the company's general manager Wu Moumou had embezzled his company's equity. Later, the public security filed a case for investigation with Wu Moumou suspected of falsely reporting registered capital, and took criminal coercive measures against Wu Moumou. Wu Moumou's father then signed the "Agreement" with Weng Moumou to hand over the company's seal, financial information and important documents of the company's development project to Weng Moumou. Later, Jiang Moumou sued the court with a private lending dispute, demanding that the borrower Weng Moumou perform the repayment responsibility, and the guarantor Wu Moumou's company performs joint and several liability for the loan. After the court accepted the case, Jiang Moumou applied to seal up a large number of houses under construction in Wu Moumou Company. After many court sessions, Jiang Moumou submitted an application for withdrawal to the court, and the court allowed him to withdraw the lawsuit. 2. case analysis (I) Weng used the convenience of keeping the company's official seal to forge the loan agreement and let the company provide joint and several liability guarantee for his personal loan. In this case, Wu is the actual shareholder of the company, and Weng is only a nominal shareholder. Weng Moumou kept the company's official seal on his behalf after Wu Moumou was detained by the public security. Therefore, this case needs to examine the authenticity of the loan relationship between Weng and Jiang and the authenticity of the guarantee relationship. First, the issue of the timing of the official seal on the loan agreement between Weng and Jiang. During the signing period of the loan agreement, the company's official seal was kept by Wu, who did not affix the company's official seal to the loan agreement involved. During the trial, Jiang Moumou and Weng Moumou admitted that the company's official seal was stamped by Weng Moumou afterwards. Even if there is a loan relationship, the time when the loan relationship occurs does not match the time when so-and-so crown real estate stamps. Second, according to the agreement signed between Weng and Wu, Weng is not the actual shareholder of the company and has not invested money in the company. Therefore, objectively there is no situation in which Weng has borrowed money for the company's construction in progress. Third, after Weng signed an agreement with Wu's father, the two sides had carried out the company's creditor's rights and debts check, in the handover Weng did not put forward the case of the loan and guarantee. Since the project developed by the company is an urban construction project of the so-and-so sub-district office, the so-and-so sub-district office issued a "certificate" stating that in resolving the dispute between the company and Weng, it had sent personnel to coordinate and reconcile many times. During this period, Weng Moumou himself and his agent never proposed that Weng Moumou borrowed Jiang Moumou's personal money to invest in the company's project, nor provided the company's loan guarantee evidence. Therefore, before Jiang so-and-so sued, the company and the project client so-and-so street office did not know about the loan and guarantee involved. Fourth, the total amount of the four loan agreements involved in the case is as high as more than 3728 million yuan, but the lender Jiang Moumou can not provide the source of these funds, the formation of the loan transactions, the loan process, the way the loan payment and other important evidence that can prove the real occurrence of the loan involved in the case, Jiang Moumou has no evidence to prove that the loan involved in the case actually occurred. Fifth, according to the provisions of Article 16 of the 2011 Company Law, if a company provides a guarantee for the shareholders or actual controllers of the company, it must be resolved by the shareholders' meeting or the general meeting of shareholders. The company involved in the case is an independent legal person. Even if Weng is the legal representative and nominal shareholder of the company, he decides to let the company provide joint guarantee liability for his personal loan without a vote of the shareholders' meeting. Because of the violation of the provisions of the company law, it is also an invalid guarantee. (II) Weng and Jiang for the criminal purpose of illegally occupying the company's property, through the fictitious loan agreement and guarantee relationship, the use of civil litigation, defrauding the property of a certain crown, belongs to litigation fraud, the behavior of the two has constituted the crime of fraud. In this case, after the lawsuit, Jiang Moumou filed an application for property preservation against the guarantor to the court. Soon the court made a ruling to seal up the guarantor's house under construction when Jiang Moumou did not provide a full guarantee. It can be seen that the purpose of the lawsuit between Jiang and Weng is to encroach on the property of the guarantor through civil litigation, that is, the two have a clear purpose of illegal possession of the guarantor's property. It must be emphasized here that although Weng Moumou and Jiang Moumou's actions involved in the case objectively meet the constitutive requirements of the crime of false litigation, their subjective intention to illegally occupy the legal property of XX Crown Real Estate Company is very clear. And the behavior involved in the case occurred before the establishment of the crime of false litigation, according to the Supreme People's Court's Interpretation of the (IX) Time Effect of the Criminal Law Amendment, implement false litigation behavior, if the criminal law before the amendment should be investigated for criminal responsibility for the crime of fraud, embezzlement or embezzlement according to the criminal law before the amendment, the relevant provisions of the criminal law before the amendment shall apply. In general, there are only the perpetrator and the victim in fraud. The victim has a misunderstanding due to the perpetrator's deception and disposes of his own property, that is, the victim and the deceived are the same person. However, in practice, there are also cases of triangular fraud in which the victim and the deceived are not the same person. This case is a triangular fraud. The judge involved in the case is the deceived person. Based on the law, he has the right to decide whether a certain crown real estate bears joint and several guarantee liabilities. Therefore, he is the property disposer, but the victim is a certain crown real estate. In this case, the content of Weng's deception was to fabricate the loan and guarantee relationship, which made the trial judge mistakenly believe that the loan relationship and guarantee relationship existed, thus making a civil judgment that the guarantor should bear joint and several guarantee liability for the loan of more than 3728 million yuan involved. Therefore, Weng's behavior belongs to the purpose of illegal possession, through litigation to defraud the guarantor's property, constitute the crime of fraud. (III), Jiang's withdrawal does not belong to the suspension of the crime, but is forced to make a choice based on objective circumstances, which is an attempted crime. In the course of the crime, the perpetrator's influence on the perpetrator needs to be examined whether the factor other than the will causes the perpetrator to stop continuing the crime, which constitutes the suspension of the crime or the attempted crime. If factors other than will occur, but are not sufficient to prevent the continuation of the crime, and the perpetrator voluntarily gives up the crime based on such unfavorable conditions, it shall be the suspension of the crime; if a phenomenon other than will occurs and is sufficient to prevent the perpetrator from continuing to commit the crime, it shall be an attempt to commit the crime. In this case, Weng Moumou did not intend to let the guarantor XXX company participate in the trial. Weng Moumou entrusted his colleague Pan Moumou to participate in the trial on behalf of the guarantor by using the official seal and invalid business license and other materials to cooperate with him to complete the fraud crime. After Wu Moumou inadvertently learned of the lawsuit involved, Weng Moumou prevented the person entrusted by Wu Moumou from attending the trial. After the agent entrusted by Wu participated in the trial, many questions were raised about the loan and guarantee relationship in this case, and Jiang could not provide a reasonable explanation. After many court sessions, Jiang was forced to apply to the court for withdrawal after realizing that the criminal purpose of the two men could not be realized. Therefore, the criminal state of the two men is not a crime suspension, but an attempted crime.. The criminal acts of (IV) Weng and Jiang are still within the statute of limitations. Weng Moumou colluded with Jiang Moumou to fabricate the loan agreement and guarantee relationship, the total amount was as high as more than 3728 million yuan, and the guarantor Moumou Company was jointly and severally liable for the loan of more than 3728 million yuan, that is, the two persons intended to defraud the guarantor of more than 3728 million yuan worth of property through litigation. According to the sentencing regulations of Shandong Province on the crime of fraud, if the amount of fraud is 500000 yuan or more, it belongs to a particularly large amount, and shall be sentenced to fixed-term imprisonment of more than ten years or life imprisonment, and a fine or confiscation of property. According to the above provisions, Weng's fraud obviously belongs to the "extremely large amount" and should be sentenced within the scope of fixed-term imprisonment of more than ten years or even life imprisonment. According to Article 87 of my country's Criminal Law, crimes will no longer be prosecuted after the following periods: if the legal maximum sentence is less than 5 years of fixed-term imprisonment, the limitation of prosecution is 5 years; if the legal maximum sentence is more than 5 years but less than 10 years of fixed-term imprisonment, The limitation of prosecution is 10 years; if the legal maximum sentence is more than 10 years, after 15 years; if the legal maximum sentence is life imprisonment or death, after 20 years. The maximum legal penalty for fraud by Weng Moumou is life imprisonment, so the prosecution is still 20 years, and the criminal acts of the two are still within the statute of limitations and can be investigated for criminal responsibility. In summary, according to the provisions of Article 266 of my country's Criminal Law on the crime of fraud, Weng Moumou and Jiang Moumou fabricated the loan agreement and guarantee relationship, intending to embezzle the guarantor's property through civil litigation, and their actions have been suspected of fraud. Because the guarantor found out and participated in the civil action in time, the illegal possession purpose of Weng and Jiang was not realized, and it was an attempted fraud.
1. brief
In December 2008, Wu XX borrowed the name of Weng XX to establish XX Real Estate Co., Ltd., with Weng XX as the legal representative and Wu XX as the general manager. At the same time, Wu Moumou and Weng Moumou signed an agreement, agreeing that the shareholders of the company are Wu Moumou and Weng Moumou. Weng Moumou does not actually contribute capital to the company and does not participate in the operation of the company. All capital contributions of the company are borne by Wu Moumou, and all external responsibilities of the company are borne by Wu Moumou. In January 2010, the legal person of the company was changed from Weng Moumou to Wu Moumou.
On February 3, 2010, Weng Moumou reported to the public security that the company's general manager Wu Moumou had embezzled his company's equity. Later, the public security filed a case for investigation with Wu Moumou suspected of falsely reporting registered capital, and took criminal coercive measures against Wu Moumou. Wu Moumou's father then signed the "Agreement" with Weng Moumou to hand over the company's seal, financial information and important documents of the company's development project to Weng Moumou. Later, Jiang Moumou sued the court with a private lending dispute, demanding that the borrower Weng Moumou perform the repayment responsibility, and the guarantor Wu Moumou's company performs joint and several liability for the loan. After the court accepted the case, Jiang Moumou applied to seal up a large number of houses under construction in Wu Moumou Company. After many court sessions, Jiang Moumou submitted an application for withdrawal to the court, and the court allowed him to withdraw the lawsuit.
2. case analysis
(I) Weng used the convenience of keeping the company's official seal to forge the loan agreement and let the company provide joint and several liability guarantee for his personal loan.
In this case, Wu is the actual shareholder of the company, and Weng is only a nominal shareholder. Weng Moumou kept the company's official seal on his behalf after Wu Moumou was detained by the public security. Therefore, this case needs to examine the authenticity of the loan relationship between Weng and Jiang and the authenticity of the guarantee relationship.
First, the issue of the timing of the official seal on the loan agreement between Weng and Jiang. During the signing period of the loan agreement, the company's official seal was kept by Wu, who did not affix the company's official seal to the loan agreement involved. During the trial, Jiang Moumou and Weng Moumou admitted that the company's official seal was stamped by Weng Moumou afterwards. Even if there is a loan relationship, the time when the loan relationship occurs does not match the time when so-and-so crown real estate stamps. Second, according to the agreement signed between Weng and Wu, Weng is not the actual shareholder of the company and has not invested money in the company. Therefore, objectively there is no situation in which Weng has borrowed money for the company's construction in progress. Third, after Weng signed an agreement with Wu's father, the two sides had carried out the company's creditor's rights and debts check, in the handover Weng did not put forward the case of the loan and guarantee. Since the project developed by the company is an urban construction project of the so-and-so sub-district office, the so-and-so sub-district office issued a "certificate" stating that in resolving the dispute between the company and Weng, it had sent personnel to coordinate and reconcile many times. During this period, Weng Moumou himself and his agent never proposed that Weng Moumou borrowed Jiang Moumou's personal money to invest in the company's project, nor provided the company's loan guarantee evidence. Therefore, before Jiang so-and-so sued, the company and the project client so-and-so street office did not know about the loan and guarantee involved. Fourth, the total amount of the four loan agreements involved in the case is as high as more than 3728 million yuan, but the lender Jiang Moumou can not provide the source of these funds, the formation of the loan transactions, the loan process, the way the loan payment and other important evidence that can prove the real occurrence of the loan involved in the case, Jiang Moumou has no evidence to prove that the loan involved in the case actually occurred. Fifth, according to the provisions of Article 16 of the 2011 Company Law, if a company provides a guarantee for the shareholders or actual controllers of the company, it must be resolved by the shareholders' meeting or the general meeting of shareholders. The company involved in the case is an independent legal person. Even if Weng is the legal representative and nominal shareholder of the company, he decides to let the company provide joint guarantee liability for his personal loan without a vote of the shareholders' meeting. Because of the violation of the provisions of the company law, it is also an invalid guarantee.
(II) Weng and Jiang for the criminal purpose of illegally occupying the company's property, through the fictitious loan agreement and guarantee relationship, the use of civil litigation, defrauding the property of a certain crown, belongs to litigation fraud, the behavior of the two has constituted the crime of fraud.
In this case, after the lawsuit, Jiang Moumou filed an application for property preservation against the guarantor to the court. Soon the court made a ruling to seal up the guarantor's house under construction when Jiang Moumou did not provide a full guarantee. It can be seen that the purpose of the lawsuit between Jiang and Weng is to encroach on the property of the guarantor through civil litigation, that is, the two have a clear purpose of illegal possession of the guarantor's property.
What must be emphasized here is that although Weng Moumou and Jiang Moumou's involvement in the case objectively meets the constitutive requirements of the crime of false litigation, their subjective intention to illegally occupy the legal property of XX Crown Real Estate Company is very clear. And the behavior involved in the case occurred before the establishment of the crime of false litigation,According to the Supreme People's Court's Interpretation of the (IX) Time Effect of the Criminal Law Amendment, the implementation of false litigation acts, illegal possession of other people's property or evasion of legal debts, according to the pre-amendment Criminal Law should be investigated for criminal responsibility for fraud, embezzlement or corruption, etc., The relevant provisions of the pre-amendment Criminal Law shall apply.
In general, there are only the perpetrator and the victim in fraud. The victim has a misunderstanding due to the perpetrator's deception and disposes of his own property, that is, the victim and the deceived are the same person. However, in practice, there are also cases of triangular fraud in which the victim and the deceived are not the same person. This case is a triangular fraud. The judge involved in the case is the deceived person. Based on the law, he has the right to decide whether a certain crown real estate bears joint and several guarantee liabilities. Therefore, he is the property disposer, but the victim is a certain crown real estate.
In this case, the content of Weng's deception was to fabricate the loan and guarantee relationship, which made the trial judge mistakenly believe that the loan relationship and guarantee relationship existed, thus making a civil judgment that the guarantor should bear joint and several guarantee liability for the loan of more than 3728 million yuan involved. Therefore, Weng's behavior belongs to the purpose of illegal possession, through litigation to defraud the guarantor's property, constitute the crime of fraud.
(III), Jiang's withdrawal does not belong to the suspension of the crime, but is forced to make a choice based on objective circumstances, which is an attempted crime.
In the course of the crime, the perpetrator's influence on the perpetrator needs to be examined whether the factor other than the will causes the perpetrator to stop continuing the crime, which constitutes the suspension of the crime or the attempted crime. If factors other than will occur, but are not sufficient to prevent the continuation of the crime, and the perpetrator voluntarily gives up the crime based on such unfavorable conditions, it shall be the suspension of the crime; if a phenomenon other than will occurs and is sufficient to prevent the perpetrator from continuing to commit the crime, it shall be an attempt to commit the crime.
In this case, Weng Moumou did not intend to let the guarantor XXX company participate in the trial. Weng Moumou entrusted his colleague Pan Moumou to participate in the trial on behalf of the guarantor by using the official seal and invalid business license and other materials to cooperate with him to complete the fraud crime. After Wu Moumou inadvertently learned of the lawsuit involved, Weng Moumou prevented the person entrusted by Wu Moumou from attending the trial. After the agent entrusted by Wu participated in the trial, many questions were raised about the loan and guarantee relationship in this case, and Jiang could not provide a reasonable explanation. After many court sessions, Jiang was forced to apply to the court for withdrawal after realizing that the criminal purpose of the two men could not be realized. Therefore, the criminal state of the two men is not a crime suspension, but an attempted crime..
The criminal acts of (IV) Weng and Jiang are still within the statute of limitations.
Weng Moumou colluded with Jiang Moumou to fabricate the loan agreement and guarantee relationship, the total amount was as high as more than 3728 million yuan, and the guarantor Moumou Company was jointly and severally liable for the loan of more than 3728 million yuan, that is, the two persons intended to defraud the guarantor of more than 3728 million yuan worth of property through litigation. According to the sentencing regulations of Shandong Province on the crime of fraud, if the amount of fraud is 500000 yuan or more, it belongs to a particularly large amount, and shall be sentenced to fixed-term imprisonment of more than ten years or life imprisonment, and a fine or confiscation of property. According to the above provisions, Weng's fraud obviously belongs to the "extremely large amount" and should be sentenced within the scope of fixed-term imprisonment of more than ten years or even life imprisonment.
According to the provisions of Article 87 of the Criminal Law of China, crimes will not be prosecuted after the following periods: if the statutory maximum sentence is fixed-term imprisonment of less than 5 years, the limitation period of prosecution is 5 years; if the statutory maximum sentence is fixed-term imprisonment of more than 5 years but less than 10 years, the limitation period of prosecution is 10 years; if the statutory maximum sentence is fixed-term imprisonment of more than 10 years, 15 years has passed;The maximum penalty prescribed by law is life imprisonment or death penalty, after 20 years. The maximum legal penalty for fraud by Weng Moumou is life imprisonment, so the prosecution is still 20 years, and the criminal acts of the two are still within the statute of limitations and can be investigated for criminal responsibility.
In summary, according to the provisions of Article 266 of my country's Criminal Law on the crime of fraud, Weng Moumou and Jiang Moumou fabricated the loan agreement and guarantee relationship, intending to embezzle the guarantor's property through civil litigation, and their actions have been suspected of fraud. Because the guarantor found out and participated in the civil action in time, the illegal possession purpose of Weng and Jiang was not realized, and it was an attempted fraud.
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