Economic disputes are not equal to economic crimes: although it is a loan forged official seal guarantee, but does not constitute a crime of fraud

2022-06-05 0 By

The crime of fraud in our country is always at a high rate. Special attention should be paid to the difference between economic disputes and economic crimes in judicial practice.Many civil activities do exist non-standard problems, but we can not just take the existence of false factors in civil activities to directly identify the perpetrator of fraud.From the criminal constitution, the crime of fraud requires the perpetrator to have the objective of illegal possession subjectively.Subjective view is objective. Whether the doer has the purpose of illegal possession usually needs to be judged by combining his objective behavior mode.In this regard, criminal law and relevant judicial interpretation have listed clear reference basis for the objective representation of the actor’s subjective purpose.In judicial practice, judgments are made mainly from the following aspects:Behavior person to perform the contract capacity, when the signing of the contract after signing a contract to perform the contract behavior, have money without, whether to squander funds used for the agreed purpose or for illegal crime, the contract is unable to perform is caused by subjective cause and objective cause, actor after default is willing to accept responsibility and so on the objective facts.The following is an example of a loan dispute case. The court made a judgment of not guilty because the perpetrator did not have the purpose of illegal possession and did not meet the subjective elements of the crime of fraud.First, to provide a guarantee: the court believes that although the defendant Xu xx forged the seal and the lender to sign a guarantee, but provided a real and effective guarantee, that is, the value of more than 40 million yuan of collateral.Although the collateral is a duplicate mortgage, it is only used for bank loans, with 20 million yuan mortgaged, so there is still a residual value.Moreover, Xu xx and Ren mou 1 had dealt with notarization of the mortgage.Since the real estate mortgage status belongs to public information, any one should be aware of the existence of mortgage on the house, that is, the victim did not fall into a wrong understanding, which does not conform to the objective elements of the crime of fraud.At the same time, Xu is willing to provide mortgage, which also shows that it has repayment willingness.Ii. The defendant has the ability to perform: The court found that xu and others had more than 200 million shares of a company and unmortgaged real estate at the time of borrowing, whose comprehensive value was enough to repay Ren’s loan of 50 million yuan.In addition, Xu also raised funds through equity pledge, asset mortgage and other ways to repay Ren 1.Based on the defendant’s asset status and repayment behavior, the existing evidence can not prove that the defendant has no repayment ability, nor can it prove that the defendant has the purpose of illegal possession.3. The defendant has repayment intention and repayment behavior: In terms of the purpose of borrowing, all the loans are used to repay the debts of the company, and there is no use of the loans for gambling, extravagance or illegal or criminal activities.In addition, the borrower has performed repayment obligations as agreed in the contract, but it cannot continue to perform because of the objective reason that Xu and others are imprisoned. The defendant does not transfer or hide property to avoid repayment….In summary, the facts and insufficient evidence in the original judgment that the defendant Xu committed the crime of fraud are unclear and should be corrected.However, Xu’s behavior of forging ding Li Technology Company’s seal constitutes the crime of forging company’s seal and should be convicted and punished.Beijing Lanqin Lawyers Criminal Legal Service Group (public number)