Viewpoint... Can the funds that have been repaid by the defendant can be recovered?
Published:
2024-09-04
In the crime of fraud, if it is found that the defendant has repaid his debts with the funds obtained by fraud after the crime, even if the public security organ has frozen part of the funds after the crime, the nature and ownership of the funds are still controversial. By analyzing the recent judicial precedents of such cases, we can see the views and ways of dealing with such cases by the judicial organs. This is of great significance to how to obtain the maximum recovery of the victim's loss.
In the crime of fraud, if it is found that the defendant has repaid his debts with the funds obtained by fraud after the crime, even if the public security organ has frozen part of the funds after the crime, the nature and ownership of the funds are still controversial. The reason is that there is a provision in the law for bona fide acquisition, which means that the third party, without knowing the true situation of both parties to the legal relationship, usually refers to the property acquired in good faith by an unwitting third party in an illegal transaction, and the original owner may not require the bona fide third party to return the property, but can only request the transferor (possessor) to compensate for the loss. At this time, the interests of the victim and the third party conflict, and the debt repayment funds obtained by the third party constitute a good faith acquisition that prevents criminal recovery, which makes the recovery of stolen goods in criminal cases create legal difficulties.
By analyzing the recent judicial precedents of such cases, we can see the views and ways of dealing with such cases by the judicial organs. This is of great significance to how to obtain the maximum recovery of the victim's loss.
[Case 1] Fan Moumou Fraud [(2019) Yu 05 Xing Zhong No. 620]]
Defendant Fan Moumou cheated a trading company in order to repay the discounted bill of Company A, knowing that he did not have the ability to return it. On March 23, 2017, Defendant Fan Moumou borrowed 20 million yuan from a trading company to fictitiously help a bank to complete the deposit collection business. Both parties agreed that a trading company would transfer 20 million yuan to the account of a construction company actually controlled by Defendant Fan Moumou and would not transfer it to other accounts or use it for other purposes. After a trading company transferred 20 million yuan to the account of a construction company, the defendant Fan Moumou violated the agreement and, without the consent of a trading company, transferred 18 million yuan of the funds to the new general deposit account opened by Company A in Daping branch of a bank with a transfer cheque at the bank's manual counter. On March 24, a trading company found that the defendant Fan Moumou had transferred funds to other accounts and demanded repayment. On March 25, a trading company reported to the public security organs. On March 27, the public security organ froze the 18 million yuan funds transferred by the defendant Fan Moumou from the account of a construction company to the account of Company A.
Court verdict:
The 1. defendant Fan Moumou committed the crime of fraud and was sentenced to 12 years in prison and fined 5 million yuan. The 2. returned the funds in the deposit account seized in the case to a trading company of the victim unit. The second instance of this case upheld the original verdict.
In this case, the defendant Fan Moumou has repaid the loan of Company A from 18 million yuan of 20 million yuan defrauded from a trading company, and whether it should be recovered. As can be seen from this case, the court directly returned the funds that had been transferred to the deposit account of Company A to a trading company of the victim. This provides a judgment basis for the follow-up work of recovering stolen goods, avoids the occurrence of disputes in the execution stage, and ensures the smooth recovery and protection of the loss of the victim unit.
[Case 2] Gao Mou and Other Fraud Cases [(2022) Jing 02 Xing Chu No. 60]]
From July 2018 to December 2019, the defendants Gao Moumou, Zhang Moumou and others in Dongcheng District, Beijing, called multiple victims in the name of a Beijing Auction Co., Ltd., fictitious facts that could help the victims sell the collection at a high price Auction and other facts, invited the victim to the company, and then collected commission for the entrusted auction contract, auction service fee, auction deposit, etc, defrauded more than 300 victims such as Chen 1 and Li 1, and the amount involved was as high as tens of millions of yuan. The victims in this case are all elderly.
During the court hearing, the public prosecution organ showed the testimony of witnesses Li mou 4 and Guo mou 1, as well as the confession of the defendant Gao mou and the details of Li mou 4 bank account transactions, proving that Li mou 4 possessed 273082 yuan of the stolen money involved in the case, and suggested that the court order Li mou 4 to refund the stolen money involved in the case. Among them, Li mou 4 and Guo mou 1 claimed that Guo mou 1 had creditor's rights to Gao mou.
After hearing, the court held that:
The testimony of witnesses Li mou 4 and Guo mou 1, the confession of defendant Gao mou and the details of bank account transactions prove that Li mou 4 withdrew more than 270000 yuan of money from the bank card after reporting the loss of the bank card involved in the case, and the above more than 270000 yuan was the stolen money that each defendant defrauded the victim in the name of one. There is a contradiction between the testimony of witnesses Li Mou 4 and Guo Mou 1 and the confession of the defendant Gao Dengqiao on whether there is a debt and debt relationship between Guo Mou 1 and the defendant Gao Mou. Although Li Mou 4 and Guo Mou 1 proved that Guo Mou 1 had a debt to Gao Dengqiao, they could neither provide documentary evidence such as debit notes and bank transfer records nor provide other witnesses to support it; and no matter whether Guo 1 and Gao Dengqiao have creditor's rights and debts, can not be the basis for Li 4 to legally possess, in good faith to obtain the defendant in the name of a certain 1 to defraud the victim of the stolen money.
To sum up, the court held that the proposal of the public prosecution organ to recover the stolen money involved in the case against Li Mou 4 was established, and ordered Li Mou 4 to refund RMB 273,082 yuan, which was incorporated into the refund and compensation of some victims of fraud in Beijing 1 Auction Co., Ltd.
This case involves the question of whether the court can directly order the recovery of fraudulent funds that have been withdrawn and used by a third party on the grounds that they have creditor's rights and debts with the defendant. The case directly ordered a third party to refund the amount withdrawn.
According to the above cases, it can be seen that in the case of fraud, where the defendant has repaid the debt with the funds obtained by fraud, the judgment of the judicial organ can make a judgment based on the following circumstances, and then directly make a clear judgment on the ownership of the fraudulent funds involved:
1. When a third party's claim for stolen money conflicts with the interests of the victim, the value should be selected according to the situation, focusing on the following two aspects:
The first is that the third party can prove the legitimacy of its claim, that is, whether the creditor's and debt relationship between the two parties is legal, and the second is whether the third party can prove that it has obtained the stolen money and goods involved in the case in good faith, whether it can stably possess the property and fully exercise the specific powers of ownership.
2. In criminal recovery of stolen goods, when there is a conflict between the interests of the victim and the third party, on the basis of evaluating the interests of the victim and the third party respectively, adhere to the principle of protecting the legitimate interests, the interests of the victim are superior to the interests of the third party whose legality cannot be proved, and the third party bears the burden of proof for its claim, taking into account the protection of legitimate interests and the maintenance of market order and stability.
3, whether to recover the property involved from outsiders, should be clear about the ownership of the property involved, there are two review points:
The first is to examine whether the property in the possession of an outsider is an illegal gain or the property involved in the case that should be recovered in accordance with the law. The second is to examine whether the outsider constitutes a bona fide acquisition. The former is the nature of the property involved in criminal cases. If an outsider claims to constitute a good faith acquisition of debt settlement, the elements of good faith acquisition should be examined from the aspects of subjective knowledge, reasonable consideration, and the method of obtaining wealth. Under any of the following circumstances, it shall be recovered according to law: (1) the outsider knowingly collects the fraudulent property; (II) the outsider obtains the fraudulent property free of charge; (III) the outsider obtains the fraudulent property at a price significantly lower than the market; (IV) the outsider obtains the fraudulent property from illegal debts or illegal and criminal activities.
4. The procedure for recovering the property involved from an outsider is applicable. When the people's court discovers that an outsider is in possession of the property involved in the case that has not been sealed up, seized or frozen at the trial stage of a criminal case, it shall investigate the ownership of the property involved in the case and whether the outsider has obtained the property in good faith, and the public prosecutor shall explain the situation, produce evidence, put forward handling suggestions, and listen to the opinions of the defendant, defender and other litigation participants. If an outsider raises an objection to the ownership of the property involved in the case, he shall listen to the opinions of the outsider and, if necessary, may notify the outsider to appear in court.
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