Original title: Why doesn't the bank bear responsibility when employees forge official seals and fraudulently use the bank's name to defraud 8 million yuan| outsider
Interface journalists| An earthquake
Recently, the State Administration of Financial Supervision and Administration disclosed an administrative penalty Industrial and Commercial Bank of China Guo Jixuan, Vice President of Urumqi Gangcheng Sub branch, was banned from business for life because he was responsible for the serious violation of prudential operation rules in the behavior management of the Bank's employees.
In fact, this punishment is related to a fraud case many years ago. At present, Guo Jixuan has been sentenced to 13 years' imprisonment and a fine of 500000 yuan.
two thousand and fifteen On January 5, 2006, Guo Jixuan falsely used the name of ICBC Gangcheng Sub branch to sign a false Financial Management Entrusted Loan Agency Agreement with Gong, and defrauded Gong of 8 million yuan.
Gong said that Guo Jixuan was the vice president of the sub branch, and as the vice president, he allowed him to invest and manage money. On January 5, 2015, Mr. Gong signed the "Entrusted Loan Agency Agreement for Wealth Management" and the "Entrusted Loan Business Authorization Letter for Wealth Management" with Guo Jixuan in his office, with a term of three months and a monthly interest rate of 0.9%. The financial management agreement has been drawn up in advance and stamped with the seal of "Gangcheng Sub branch of Business Department of Industrial and Commercial Bank of China Limited Xinjiang Uygur Autonomous Region Branch".
After the financial management expired, Gong failed to receive the principal and interest on schedule, so he reported to the public security organ. On September 28, 2016, Guo Jixuan was detained for contract fraud.
The plaintiff, Gong Mou, sued the court and asked ICBC Gangcheng Sub branch to repay the entrusted wealth management fund of 8 million yuan and pay interest of 4.32 million yuan.
The court of first instance found that Guo Jixuan signed a false financial management agreement with the customer in the name of ICBC Gangcheng Sub branch, defrauding the customer of 8 million yuan, all of which was used to repay personal debts. Guo Jixuan was sentenced to 13 years' imprisonment for contract fraud and a fine of 500000 yuan; The fraud income shall be recovered or ordered to return to Gong.
The two core issues of the dispute in this case are: first, whether the civil legal relationship between Gong and ICBC Gangcheng Sub branch "financial management entrusted loan agency" is established; Second, whether Guo Jixuan's act constitutes agency by estoppel.
The court found that the "Entrusted Loan Agency Agreement for Wealth Management" involved in the case was forged by Guo Jixuan, who signed the above agreement with Gong in the name of ICBC Gangcheng Sub branch. Guo Jixuan defrauded Gong of his trust and forged the official seal, which was an individual fraud.
According to the Provisions of the Supreme People's Court on Several Issues Concerning Suspicion of Economic Crimes in the Trial of Economic Dispute Cases Article 5 "Where an actor steals or embezzles the official seal, business introduction letter, blank contract sealed with the official seal of the unit, or signs an economic contract with the official seal of the unit secretly, defrauding property for personal possession, use, punishment or other criminal activities, which constitutes a crime, the unit shall not bear civil liability for the economic losses caused by the criminal act of the actor", ICBC Gangcheng Sub branch will not bear civil liability for Guo Jixuan's personal criminal act.
In the trial, Gong believed that Guo Jixuan's act constituted an apparent agency act. Agency by estoppel refers to the legal act performed by the opposite party who has reason to believe that the actor has the power of agency, although the actor has no power of agency in fact.
In this case, it was confirmed by the criminal judgment that ICBC Gangcheng Sub branch had never carried out the entrusted financing loan business, and the funds involved in the case were not entered into the bank account. Under the condition of trusting Guo Jixuan's identity as the vice president of the Bank, Gong subjectively pursued high interest rates, and had faults and negligence in the occurrence of the losses in this case, so the crime of contract fraud committed by Guo Jixuan did not constitute a prima facie act of agency.
The plaintiff Gong appealed against the judgment. The court of second instance held that the trustee's name "Gangcheng Sub branch of Xinjiang Industrial and Commercial Bank Co., Ltd. Xinjiang Uygur Autonomous Region Branch Business Department" in the Financial Management Entrusted Loan Agency Agreement signed by Guo Jixuan and Gong was obviously inconsistent with the name "Urumqi Gangcheng Sub branch of Industrial and Commercial Bank Co., Ltd." stated in the seal, Moreover, ICBC Gangcheng Sub branch has never carried out entrusted financing loan business, and the funds involved in the case have not entered ICBC Gangcheng Sub branch.
Gong failed to review the above situations, credibly believed Guo Jixuan's identity as the vice president of ICBC Gangcheng Sub branch, and was negligent in the occurrence of the loss in this case. Finally, the original judgment was still upheld in the second instance.
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