Hefei People's Procuratorate

Criminal appeal review decision

He Jian Xing Shen Fu Jue [2020] No. 6

The complainant is Ou XX, female, born on * * *, 1984, living in * * Room * *, * * Building, * * Community, * * Road, Shushan District, Hefei City, with ID card number 3411811984 ****************. He is the original victim.

The complainant is Huang Moumou, female, born on * * *, 1987, living in Room * *, Building * *, * * Community, * * Road, Shushan District, Hefei, with ID card number of 3401031987 ***********. He is the original victim.

The complainant Wang Moumou, male, was born on * * *, 1987, and lives in * * Room * *, * * Community, * * Road, Luyang District, Hefei City. His ID card number is 3401041987 *********. He is the original victim.

The complainants Ou, Huang, and Wang objected to the YJXBNP [2019] No. 63 decision of the People's Procuratorate of Yaohai District of Hefei City not to prosecute because Lu was suspected of fraud, and filed a complaint to the Court on November 18, 2019 on the ground that Lu defrauded the complainant of a large amount of money.

The court rechecked and found that the facts of Lu's suspected fraud case were unclear and the evidence was insufficient. The reasons were as follows:

1. Subjectively, there is insufficient evidence to determine that Lu has the purpose of illegal possession. Lu's confession changed before and after. In the early stage, Lu confessed that he was involved in usury, and the main purpose of borrowing money was to rob Peter to pay Paul. In the later stage, he also said that the money returned to the victim was more than the money lent to him by the victim. Therefore, in order to determine that Lu has the purpose of illegal possession, it is necessary to conduct a comprehensive investigation, verification and audit of all of Lu's claims and debts according to law.

2. In the objective aspect, the fact of the fund exchange between the victim and Lu is unclear. There are three main channels for the fund exchange between the victim and Lu: bank debit card transfer, credit card POS machine credit card transfer and WeChat, Alipay transfer. There is no sufficient evidence to prove that the money swiped by the victim's credit card entered Lu's account, and the amount claimed by the victim to be borrowed to Lu by swiping the credit card cannot be verified; Documentary evidence such as the debit card transaction flow on the volume confirmed that the amount returned by Lu to the complainant Huang and Wang was greater than the amount remitted by the two persons to Lu; In addition, the bank card flow and other objective vouchers related to the case were not fully retrieved. Therefore, the existing evidence cannot objectively and comprehensively reflect the loan and repayment between Lu and the victim.

The court reviewed and found that although Lu made up the purpose of the loan when he borrowed from the victim, the existing evidence could not prove the accurate capital flow between the victim and Lu. The People's Procuratorate of Yaohai District, Hefei City, once requested the public security organ to "retrieve the merchant name and transaction details of the POS machine; require the victim to clarify the transfer record between himself and Lu Moumou; recommend judicial audit of the amount of crime in this case to find out the transfer between Lu Moumou and the victim and the amount of crime", but the public security organ did not supplement relevant evidence. In light of the whole case, it is not improper for the People's Procuratorate of Yaohai District, Hefei City to decide not to prosecute on the grounds of unclear facts and insufficient evidence.

The court decided to maintain the YJXBJ [2019] No. 63 decision on non prosecution made by the People's Procuratorate of Yaohai District, Hefei City.

July 17, 2020