Lawyer

Chapter 234 Chapter 235 Chapter 236 (Consolidate one chapter) Court Debate
"Before you mentioned that the bank has already approved your loan, how did you know? How did Wei Xikui know about this?" Fang Yi asked.

"It was the person in charge of the loan at the bank who told me. Later, I took Wei Xikui to the bank to verify the approval of the loan. It was also the person in the bank who told Wei Xikui himself." Hu Weijun said.

"Just now you said that the bank didn't issue the loan because there was something wrong with the collateral. Is there something wrong with that collateral? What's wrong?" Fang Yi asked.

"It's my house. I have a large three-bedroom house. When I applied for the mortgage, because I couldn't find the real estate certificate, I was in a hurry to go to the bank for a loan, so I asked someone to forge a real estate certificate." Hu Weijun said.

"In other words, the house is real and belongs to you. It's just that you forged the real estate certificate because you lost the real estate certificate and you were eager to go through the loan mortgage procedures, right?" Fang Yi asked.

"Yes. The police investigated this matter during the first trial, and cross-examined it during the trial." Hu Weijun said.

"Presiding judge, the defender is done questioning." Fang Yi looked at the expressionless presiding judge sitting above.

"The next step is to cross-examine evidence in court. Do the prosecutors, defenders, and appellants have any new evidence to submit?" asked the presiding judge.

"There is no new evidence." The three parties agreed.

……

"The court investigation is over, and the court debate is now underway. Before the debate, the court draws the attention of both the prosecution and the defense. The debate should focus on determining charges, sentencing and other controversial issues. Let the appellant and defender speak first.

Appellant Hu Weijun can defend himself. " said the presiding judge.

"I don't think I'm guilty of fraud..." Hu Weijun repeated his previous speech.

"The defender of the appellant Hu Weijun spoke." The presiding judge looked at Fang Yi.

"Dear presiding judge, judge: The defender believes that Hu Weijun does not constitute a crime of fraud for the following reasons:

[-]. Hu Weijun borrowed from others at a high interest rate and issued an IOU. The borrowed funds were used for legitimate business activities such as stock market investment, repayment of bank loans, and factory operations. He did not hide or squander the borrowed money. According to the bank transfer records provided by the prosecutor, Before the incident, Hu Weijun had been repaying the principal and interest of the loan on schedule, so it was not sufficient to determine that Hu Weijun had illegal possession as the purpose.

[-]. Although Hu Weijun fabricated part of the facts or concealed the truth, his actions were not for the purpose of illegal possession, but for the purpose of enabling the machining factory to continue operating, so his actions did not meet the constituent elements of the crime of fraud. The borrowing behavior involved in this case should be classified as a civil fraudulent behavior, and the dispute with the creditor should be resolved through civil litigation, and criminal responsibility should not be pursued.

[-]. Judging from Hu Weijun’s past experience, the appellant Hu Weijun himself is a loyal and trustworthy entrepreneur. During the heyday of his machining factory, local people, including banks, rushed to lend land and earn stable interest.At the moment when economic growth is slowing down and financial disputes are frequent, many entrepreneurs are insolvent. This case is a typical economic dispute case formed under this background and should not be treated as a crime.

In summary, the court is requested to ascertain the facts according to the law and support the appellant's claim.The defender's defense opinions have been elaborated. "Fang Yi said.

"Now it's up to the prosecutor to speak." The presiding judge said.

"Presiding judge, judges: The public prosecutor believes that the facts found in the first instance are clear, and the evidence is reliable and sufficient.

Hu Weijun obtained property by fabricating facts and concealing the truth, and forged fake real estate certificates as collateral, and used a large amount of money for high-risk stock investment and paying usury.Knowing that he had no ability to repay the debt, he still borrowed a large amount of money, so that he became insolvent, and absconded after the incident.

To sum up, Hu Weijun conforms to the basic characteristics of the crime of fraud and should constitute a crime of fraud.It can be seen from this that Hu Weijun's grounds for appeal cannot be established, and it is recommended to dismiss the appeal and uphold the original judgment. " said the female prosecutor.

"The prosecutor can respond to the defender's defense opinion." The presiding judge said.

"Okay, in response to the defender's defense opinion, the public prosecutor's response is as follows:

700. For the purpose of illegal possession, Hu Weijun fabricated facts and concealed the truth, and defrauded Feng Ping and Wei Xikui of [-] million yuan successively. The above facts have been verified to be true.Although there is no profligate behavior, it has the obvious purpose of illegal possession by investing the funds in the stock market.

[-]. Hu Weijun's machining factory had deteriorated in operation before borrowing money. It borrowed a lot of money and concealed its real purpose. It was also a fact that it used fake property right certificates to mortgage and release mortgages in the process of borrowing money.Clearly intended to be deceptive.

200. After borrowing 500 million yuan from Feng Ping, he borrowed [-] million yuan from the bank and borrowed [-] million yuan from Wei Xikui.It is to cover up the fact of fraud.

[-]. After the incident, Hu Weijun avoided debts and absconded in fear of crime.Moreover, the economic situation should not become a gold medal for avoiding death from crime.

To sum up, Hu Weijun constituted the crime of fraud, the facts are clear, the evidence is sufficient, and the court is requested to rule in accordance with the law. " said the female prosecutor.

"The defender can respond to the prosecutor's opinion." The presiding judge said.

"In response to the Prosecutor's defense opinion and response, the defender issued the following defense opinion:

[-]. There is insufficient basis for finding that the defendant Hu Weijun had the purpose of illegal possession
首先，被告人胡维军向冯平和魏喜奎借款金额总计为一千700万元。根据2011年、2012年土地估价报告、房产抵押评估报告证实，机加工厂土地及房产总价值达一千930余万元、个人房产总价值为860万元。

At the time of the loan, the remaining value of the company's assets and the value of its personal property were basically the same as the loan amount, except for the bank mortgage loan and the payment owed to the supplier for the assets of the machining factory. It can be seen that Hu Weijun has the ability to repay the loan.

(Fang Yi knows that the evaluation report may be rather false and full of water, but after a lot of research, the evidence presented by both parties in the first trial is not much in favor of Hu Weijun, so it can only be used for what it is, but fortunately, the real estate and land are indeed It really exists, but its value is doubtful)
Secondly, Hu Weijun used the borrowed funds for legal activities such as stock market investment and repayment of bank loans. The owed loans could not be repaid in time due to reasons such as stock investment operating losses and failure to complete loan renewal procedures, not due to personal squandering or other illegal activities. caused by criminal activity.

Again, Hu Weijun paid interest to creditors on schedule.Among them, Feng Ping has received more than 280 million yuan in interest, and has obtained more than 230 million yuan in civil litigation; Wei Xikui has received more than 16 yuan in interest. It can be seen that Hu Weijun has an active willingness to repay the loan.

In the end, Hu Weijun fled to other places after learning that Wei Xikui had reported the crime. He did not flee after getting the loan. His behavior of running away was not for illegal possession of the loan, which did not conform to the manifestation of the crime of fraud.

[-]. Hu Weijun did fabricate facts or conceal the truth, but it should be classified as civil fraud.

The crime of fraud is objectively manifested as fabricating facts or concealing the truth. The actor commits fraudulent acts of fabricating and concealing facts in order to make the victim fall into a wrong understanding, so as to realize his purpose of illegally occupying other people's property.

In this case, Hu Weijun borrowed 200 million yuan from Feng Ping. The reason for the loan was that the factory needed funds for production, but in fact he used part of the funds to speculate in stocks after obtaining the funds. There was indeed fraud in the reasons for the loan and the purpose of the funds.

After Hu Weijun obtained the money, when Feng Ping asked for a mortgage, he forged the real estate certificate and mortgaged it to him, which was also fraudulent.

However, Hu Weijun and Feng Ping reached a loan agreement and issued an IOU to the lender in a timely manner. This behavior conforms to the formal requirements of private lending. The two parties are essentially in a loan relationship, and there is no misunderstanding between the two parties about the loan funds.

Hu Weijun invested part of the funds in stocks, but stock investment is a legal business activity and only changes the direction of business.Hu Weijun forged personal real estate certificates as collateral for the loan, but the above-mentioned personal real estate is objective and real, and in the first trial, Hu Weijun's parents-in-law expressed their willingness to use their small property rights to pay off the debt.After the auction of the above-mentioned real estate, the victim's loan can be partially repaid.

Before the incident, Hu Weijun had been repaying the principal and interest steadily, and had no intention of illegal possession or absconding with money.

In this case, Hu Weijun asked Wei Xikui for a loan to repay the bank loan after the first bank loan was about to expire, and claimed that he had applied for a 600 million yuan loan from the bank, and he would return the loan after the loan was obtained.

Regarding the application for a bank loan, Manager Zhou Jinku of the Bank’s business department also confirmed to Wei Xikui that what Hu Weijun said was true (as evidenced by the police’s interrogation records), and that the approval procedures for the loan had been completed, and Wei Xikui then transferred the loan to Hu Weijun .

In the process of the above-mentioned borrowing, although Hu Weijun concealed that one of the three real estate certificates mortgaged by him to the first bank was forged by him, the content, reason and repayment plan of the loan mentioned by him were all true. Therefore, it can be seen that Hu Weijun did not have the purpose of illegally taking Wei Xikui's loan.

In addition, the defender reminded the presiding judge that although one of the three real estate properties used for mortgage was forged and two real estate certificates were real, the reason why Hu Weijun forged the real estate certificates was that the original real estate certificates were lost.In other words, although the real estate certificate is false, the real estate is real and valid (confirmed in the first instance).

[-]. The Supreme People's Court issued the "Opinions on Giving Full Play to Judicial Functions and Effectively Strengthening the Judicial Protection of Property Rights" (this opinion issued in [-], borrowed here in advance), which particularly emphasizes the need to strictly distinguish between economic disputes and criminal disputes Crime, resolutely prevent economic disputes from being treated as crimes..., resolutely prevent the use of criminal means to intervene in economic disputes.

To sum up, Hu Weijun’s above-mentioned fraudulent behavior has not yet reached the level of a crime of fraud and should not be treated as a crime, no matter from the content and degree of fraud, or from the perspective of the misunderstanding of the fraudulent object.

The defender believes that the case is representative at present, and it will receive better social and legal effects if it is dealt with as innocent.The court is requested to accept the defender's opinion and support the appellant's appeal request.

The defender responded. "Fang Yi said.

……

Mr. Tong listened very carefully in the auditorium. He is over 50 years old, and he still knows whether Fang Yi is defending with his heart or performing in court.

Regarding Fang Yi's defense opinion today and the verbal battle with the prosecutor in court, he felt that the 10 yuan was worth it. Even if the court of second instance really upheld the original verdict, he would not blame the lawyer, because Fang Yi really Do your best.

"The court will be adjourned for 10 minutes now, and the verdict will be pronounced in court after the collegial panel deliberates. Please bail the appellant Hu Weijun out of the court." After the presiding judge finished speaking, he rang the gavel, and the three judges withdrew one by one to go to the back for deliberation.

Fang Yi let out a long breath, endured the hunger in his belly, took a big gulp of mineral water from his shoulders, and then looked at his watch. It was already past two o'clock in the afternoon, and the trial lasted for more than six hours.Then look at the two female prosecutors on the opposite side. They are not much better than themselves, and they are both starving and waiting for the sentencing.

What should come will always come, and the moment to decide Hu Weijun's fate has come.

All stood up, and the judges of the collegial panel entered the courtroom one by one.

The presiding judge sounded the gavel and said, "Continue with the trial now, and ask the judicial police to bring Hu Weijun to the court. This case has been deliberated by the collegial panel and a verdict has been formed. In view of the opinions of both the prosecution and the defense, combined with the focus of disputes in this case, and based on the facts and evidence of this case, this The court's analysis is as follows:

...Hu Weijun borrowed money from others at high interest rates and issued an IOU, and the borrowed funds were used for legal business activities such as stock market investment and repayment of bank loans.There is insufficient basis for determining that Hu Weijun has illegal possession as his purpose. He did fabricate some facts or conceal the truth, but he did not implement this act for the purpose of illegal possession. Therefore, his behavior does not meet the constituent elements of the crime of fraud and should be classified as a civil crime. Fraudulent acts, resulting in disputes with creditors, should be resolved through civil proceedings and should not be criminally investigated.Hu Weijun and his defender's pleading that it does not constitute a crime of fraud is valid and supported.

Accordingly, in accordance with Article 220, Paragraph 230 (190), Article [-], and Article [-], Paragraph [-] ([-]) of the Criminal Procedure Law of the People's Republic of China, the judgment is as follows:

90. Revoke the No. [-] criminal judgment of the Municipal Intermediate People's Court.

[-]. The appellant Hu Weijun is not guilty.

......"

When the presiding judge read out the sentence "his behavior did not meet the constituent elements of the crime of fraud", Fang Yi knew that Hu Weijun would not be sent to prison.

After the presiding judge read out the verdict, Hu Weijun didn't show much excitement. The joy flashed across his face, but his eyes were filled with tears. He still had huge debts to pay, and this was only the first step of the long march.

"Lawyer Fang, thank you!" Hu Weijun looked at Fang Yi and said sincerely.

When the bailiff was uncuffing Hu Weijun, Mr. Tong from the auditorium came over: "Old Hu, congratulations."

Hu Weijun turned his head to look at Mr. Tong, didn't say anything, but nodded heavily.

(End of this chapter)