Anhui Province Huaibei Xiangshan District People's Procuratorate

Criminal protest

XJXK [2019] No. 1

Huaibei Xiangshan District People's Court issued a criminal judgment (2018) Wan 0603 Xing Chu No. 142 against the defendants for the crime of fraud, illegal mining, collusion in bidding, the crime of illegal mining by the defendants Hu Moujia and Chen Moumou, and the crime of collusion in bidding by the defendants Zhang Moumou and Hu Moumou C

The judgment of the first case: the defendant committed the crime of illegal mining and was sentenced to four years' imprisonment and a fine of 10 million yuan; Whoever commits the crime of collusion in bidding shall be sentenced to fixed-term imprisonment of two years and six months, and shall also be fined 10 million yuan; Whoever commits the crime of helping forge evidence shall be sentenced to fixed-term imprisonment of two years and six months, and he shall be sentenced to eight years of fixed-term imprisonment and shall also be fined 20 million yuan. After reviewing in accordance with the law, the Court believed that the judgment was wrong in finding the facts, wrong in applying the law, and extremely light in sentencing.

The judgment finds that“ The evidence currently on file in this case shows that, Qin The borrower has issued a debit note to Zhou Xuan for many times and agreed on the loan interest , Triumph and Qin There are also several capital transactions between the two's bank accounts, indicating that The Defendant Triumph and Qin There is a loan relationship between them, and the current evidence on the record cannot exclude the possibility of a compromise Qin Enjoy more than 1.5 million yuan of creditor's rights. Zhao Accepting the transfer of creditor's rights to pay the consideration is not to dispose of the property because of falling into a wrong understanding, and the defendant cannot be ruled out to have a right to Qin Under the condition of enjoying the creditor's rights, it can not be determined that the defendant has the intention of illegally occupying other people's property, but The defendant Zhou Huanyi's sister Zhou Using its forged evidence to bring a lawsuit in the people's court, which jeopardizes judicial order, and the circumstances are serious, Should be Help to investigate criminal responsibility for the crime of forging evidence ”It is wrong to recognize the facts, apply the law, and measure the punishment lightly.

1、 According to the facts ascertained in this case, Zhou Xuan's purpose of bringing a civil action against Qin is not to confirm and claim debts through normal civil action, but to help Qin preserve the property being applied for by the victim Zhao.

From the recording materials between Qin and Huang, it can be seen that the evidence materials that can prove Zhou Xuan's civil action against Qin are false, and they are the facts of the action to protect his property. For example, Qin mentioned in the recording: "I don't mean I want to give up after half a year, but you say I want to protect my property"; Huang said: "Don't let Zhao finish it, and don't let others finish the money you owe them. Let's keep it first.". According to Zhou's testimony, it was also confirmed that Qin had not issued an IOU to him, and the IOU provided to the court later was written after Zhou arranged Qin. If Zhou Xuan and Qin Moumou have real creditor's rights before they file a civil action, Zhou Xuan can directly file a civil action in the court in his own name based on the IOU issued by Qin Moumou to Zhou Xuan, instead of filing a civil action in the name of others by forging the IOU and other litigation evidence. And the fact that the above forged evidence has brought a civil action was also recognized in the judgment, which shows that Zhou Xuan's purpose of bringing a civil action against Qin is to help Qin "preserve" the property that Zhao is applying for execution.

II Qin The outstanding revolving debt before the civil lawsuit was filed in February 2013 It has been paid off, and the judgment confirmed that it existed on August 7, 2012 Qin The IOU of 9.7 million yuan issued to Zhou Xuan, and then determined that "the evidence on record cannot exclude Zhou Xuan's right Qin The fact of enjoying 1.5 million creditor's rights " cognizance Error.

According to the flow of bank accounts between Qin and Zhou Xuan transferred by the public security organ, Zhou Xuan transferred more than 97.961 million yuan to Qin's account, and Qin transferred more than 113.5745 million yuan to Zhou Xuan's account The difference is more than 15.9135 million yuan, indicating that Qin and Zhou In the act of borrowing funds from each other, the amount of funds transferred by Qin to Zhou Xuan is far greater than the amount of funds transferred by Zhou Xuan to Qin. Although the defendant, Zhou Xuan, argued that he had an acceptance bill transaction with Qin, he failed to provide any evidence such as acceptance bill records and documents signed by Qin. In addition, Zhou Xuan holds a 9.7 million yuan IOU, which cannot deny the fact that Qin has repaid. According to the bank account transfer details, there was only one record of Zhou Xuan transferring 9.7 million yuan to Qin on August 7, 2012, that is, Zhou Xuan only transferred 9.7 million yuan to Qin once, but there were two IOUs issued by Qin to Zhou Xuan and Zhou B on the same date, which can be seen that the IOUs can not objectively reflect the fact that Qin failed to repay; According to the case evidence, whether from the confession of Mr. Qin or the recording materials between him and Mr. Huang, it shows that before the lawsuit was filed, Mr. Qin transferred more than 38.8 million yuan of creditor's rights to Mr. Kong to Zhou Xuan. For example, the recording evidence between Mr. Qin and Mr. Huang on January 23, 2014 shows that Mr. Qin He said: "Kong's contract is 38.8 million yuan in total. I don't know the contract you drafted, but it was all transferred to him. If you think about it, I will pay more than 20 million yuan.". The loan guarantee agreement, debt transfer agreement and loan contract also prove that on June 20, 2013, Zhou Xuan signed an agreement with Mr. Qin, which stated that Mr. Qin enjoyed a debt of 42.973 million yuan against Mr. Zhou A and Mr. Kong, and that Mr. Zhou enjoyed a debt of 45 million yuan against Mr. Qin. Both parties agreed that Mr. Qin would transfer 10.6 million yuan of his debt to Mr. Zhou A and Mr. Kong to Zhou Xuan. On June 30, 2013, Mr. Qin signed a loan guarantee agreement with Mr. Zhou A and Mr. Kong, and both parties settled that Mr. Zhou A and Mr. Kong still owed Mr. Qin 46 million yuan. On August 3, 2013, Zhou Xuan signed a loan contract with Kong, Li and Zhou, which stated that Zhou Xuan loaned 38.8 million yuan to Kong, Li and Zhou on July 30, 2013. It can be seen that before Zhou Xuan filed a civil lawsuit against Qin, Qin had reached a settlement of creditor's rights and debts with Zhou Xuan by means of creditor's rights transfer, and Qin had paid off the debts. The judgment was based on the fact that there was a 9.7 million yuan IOU issued by Mr. Qin to Mr. Zhou Xuan on August 7, 2012, and it was found that "the evidence on record cannot exclude the fact that Mr. Zhou Xuan has 1.5 million yuan of creditor's rights against Mr. Qin".

3、 The false creditor's rights established in the "Civil Mediation Statement" formed by Zhou Xuan through false litigation to defraud the victim to pay 1.5 million cash by way of transfer of creditor's rights should be identified as the crime of fraud. The judgment found that his behavior constituted the crime of helping to forge evidence, and the application of law was wrong, so that the sentencing was too light.

According to the facts found out, the purpose of civil litigation between Zhou Xuan and Qin is not to solve the debt dispute between them, but to conduct false litigation by forging litigation evidence, so as to "confirm" the creditor's rights through the court, and then to join the execution procedure of sealing up the property applied by the victim, so as to "preserve" the property of Qin. Later, due to the closure of the house property for three times in the execution procedure, Zhou Xuan made use of the "civil mediation statement" formed by his earlier false litigation behavior to transfer part of the false claims, so that the victim fell into a wrong understanding and paid 1.5 million yuan to him. From the perspective of civil litigation documents, the civil mediation statement of the court confirmed that "Mr. Qin paid Mr. Zhou's loan of 22.8 million yuan of principal and interest of more than 2.3 million yuan", and the value of the seven houses seized by Mr. Qin was also much higher than 1.5 million yuan. If the defendant Mr. Zhou really enjoyed more than 20 million yuan of creditor's rights against Mr. Qin, and had enforceable property, It is also unreasonable to abandon other enforceable property by transferring only 1.5 million yuan of creditor's rights to the victim. Therefore, deliberate behavior should be considered as fraud, The judgment found that the circumspect behavior constituted the crime of helping to forge evidence, and the application of law was wrong, so that the sentencing was too light.

To sum up, Huaibei Xiangshan District People's Court (2018) W0603 X.Chu No. 142 Criminal Judgment found that the defendant Zhou Xuan could not be excluded from having creditor's rights against Qin, nor could it be determined that the defendant Zhou Xuan had the intention to illegally occupy other people's property, and that Zhou Xuan's behavior constituted a mistake in fact determination of the crime of helping to forge evidence, leading to the application of law to him, Sentencing is too light. In order to maintain judicial fairness and accurately punish crimes, we hereby lodge a protest in accordance with the provisions of Article 228 of the Criminal Procedure Law of the People's Republic of China and apply for a sentence according to law.

Sincerely

Huaibei Intermediate People's Court

May 16, 2019

Attachment:

1. The defendants Zhou Xuan, Hu Moujia, Zhang Moumou, Hu Mou C, Chen Moumou are now in custody in Huaibei No. 2 Detention Center;

2. The evidence of the whole case is the same as that of the original trial.