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Prosecutor-protested Swindling Case of the Defendant Fangxiao (case of defending the swindling)
被告人方晓诈骗抗诉案
【法宝引证码】
  • Type of Dispute: Criminal-->Property Infringement
  • Legal document: Judgment
  • Judgment date: 06-26-2000
  • Procedural status: Trial at Second Instance
  • Source: SPC Gazette,Issue 4,2001

Prosecutor-protested Swindling Case of the Defendant Fangxiao (case of defending the swindling)
(case of defending the swindling)
被告人方晓诈骗抗诉案

Prosecutor-protested Swindling Case of the Defendant Fangxiao

 

被告人方晓诈骗抗诉案

BASIC FACTS 
The defendant Fangxiao, male, 45 years old, was the vice-president of Guangdong Hua Zhijie Cinematographic and Television Media before arrestment. 被告人 方晓,男,45岁,捕前系广东华之杰影视传播有限公司副总经理。
On June 30,1998, the Public Security Bureau of Wuhan Municipality, Hubei Province, accepted the case of the defendant Fangxiao for investigation on the ground of swindling; on July 9, 1999, the case was transferred to Wuhan People's Procuratorate for review and prosecution. On August 19, 1999, Wuhan People's Procuratorate proceeded with public prosecution in Wuhan Intermediate People's Court. The Bill of Prosecution held that: 1998年6月30日湖北省武汉市公安局对被告人方晓以诈骗罪立案侦查,1999年7月9日移送武汉市人民检察院审查起诉。1999年8月19日武汉市人民检察院向武汉市中级人民法院提起公诉。起诉书认定:
On January 1995, for the purpose of defrauding the financial institution of funds, the defendant Fangxiao had 4 cachets engraved without authorization. They are: “China Bank, Shanxi Branch”, “China Bank, Shanxi Trust and Investment Company, Taiyuan Securities Trading Department”, the special financial cachet of “China Bank, Shanxi Trust and Investment Company, Taiyuan Securities Trading Department”, and the personal seal of “Jin Xiaokang”. In the name of China Bank, Shanxi Trust and Investment Company, Taiyuan Securities Trading Department as well as the name of Jin Xiaokang, Manager of the Department, he also forged several documents including the Agreement concerning the Cooperation in Applying for a Securities Trading Seat in Wuhan, the Application Report for Securities Trading Seat, and the letter of Authorization. Additionally, he himself filled the Application Form for Wuhan Securities Trading Center Membership, and stamped on the above documents with the cachets illegally engraved.
In February 1995, the defendant Fangxiao plotted with Zhouchuan, who is jobless and now at large. And then, with the above-mentioned forged documents, a forged financial statement and other defrauded documents by Fangxiao from China Bank, Shanxi Trust and Investment Company, Taiyuan Securities Trading Department including Business License, a copy of Financial Business Operating Permit, Registration Form of Dealers of Wuhan Securities Trading Center, Zhouchuan defrauded Wuhan Securities Trading Center of Seat 596, and held the position of Chief Dealer.
In April 1995, Zhouchuan illegally transferred RMB 2 million Yuan of Seat 596 of Wuhan Securities Trading Center to Shenzhen Rong Datong Investment Development Limited Company's account appointed by the defendant Fangxiao, who divided RMB 300 hundred Yuan of the funds to Zhouchuan and came into possession of the remaining part.
 1995年1月,被告人方晓为骗取金融机构资金,私刻“中国人民银行山西省分行”、“中国银行山西省信托投资公司太原证券业务部”、“中国银行山西省信托投资公司太原证券业务部财务专用章”、“晋晓康”等4枚印章,并假冒中国银行山西省信托投资公司太原证券业务部及该部经理晋晓康的名义伪造关于合作申办武汉证券交易席位的协议书和申请证券交易席位的申请报告、授权委托书等,亲笔填写武汉证券交易中心会员申请表,并在上述文件上加盖其私刻的有关印章。1995年2月,被告人方晓与无业人员邹川(在逃)合谋后,由邹川持上述伪造的文件和方晓事先从中国银行山西省信托投资公司太原证券业务部骗取的营业执照、经营金融业务许可证复印件和武汉证券交易中心交易员登记表、伪造的会计报表,骗取武汉证券交易中心596号席位,由邹川任首席交易员。1995年4月,邹川通过武汉证券交易中心596号席位将场内的200万元人民币非法转到被告人方晓指定的深圳融通达投资发展有限公司账上。被告人方晓除分给邹川30余万元外,余款被其据为己有。
After their criminal acts were discovered, Zhouchuan's relatives returned RMB 780 hundred thousand Yuan; the relatives of the defendant Fangxiao returned RMB 400 thousand Yuan. 案发后,邹川亲属退赃78万余元,被告人方晓亲属代为退赃40万元。
PROCEDURAL POSTURE 
On December 7,1999, Wuhan Intermediate People's Court held after trial:
The defendant Fangxiao engraved false cachets, forged documents, participated in defrauding of securities trading seat, as well as public and private property; his acts has constituted the crime of fraudulence involving specially enormous amount of money. The accusations brought forward by the procurator are tenable; the applied crime name is correct. However, the defendant Fangxiao was instigated, during the fraudulence, to participate in engraving false cachets, forging documents, and did not participate in securities trading in practice. Because he is an accessory who played an auxiliary role in the complicity, and is active in returning the boodle, the penalty to him can be mitigated below the minimum statutory provisions according to laws and regulations. In accordance with Article 12 (1) of the Criminal Law of the People's Republic of China, and Article 152画风不对,如何相爱.22.24 of the Criminal Law of the People's Republic of China, the Criminal Judgment No.(1999)224 of First Trial of Criminals of Wuhan City determines that:
 1999年12月7日武汉市中级人民法院一审认定,被告人方晓刻制假印章、伪造文件,参与骗取证券交易席位,诈骗公私财物,其行为已构成诈骗罪,且数额特别巨大。公诉机关指控的事实成立,罪名准确。但被告人方晓在诈骗过程中,参与制造假印章、伪造文件,系被指使,没有实际参与证券交易,在共同犯罪中起辅助作用,系从犯,且在案发后积极退赃,依法可予减轻处罚。依照《中华人民共和国刑法》第十二条第一款和1979年《中华人民共和国刑法》第一百五十二条、第二十二条法宝、第二十四条的规定,以(1999)武刑初字第224号刑事判决书,判处被告人方晓犯诈骗罪,判处有期徒刑六年,退出的赃款人民币40万元予以发还。
The defendant Fangxiao has committed the crime of fraudulence and shall be sentenced to imprisonment of 6 years. The returned boodle of RMB 400 thousand Yuan shall be given back to him.
After the first trial judgment was made, Wuhan People's Procuratorate held, after review, that the judgment of the first trial is incorrect with inappropriate application of law and light sentencing. On December 13, 1999, it lodged a protest against the judgment in the Higher People's Court of Hubei Province with Bill of Protest of No (1999) 15 of Criminal Protest of Wuhan Procuratorate on the ground that:
 一审判决下达后,武汉市人民检察院审查后认为,一审判决存在适用法律不当、量刑畸轻的错误,遂于1999年12月13日以武检刑抗(1999)15号年刑事抗诉书向湖北省高级人民法院提出抗诉。抗诉理由:
The defendant Fangxiao has played primary role in the case and is therefore the principal defender. For the purpose of defrauding funds from financial institutions, he plotted, organized and carried out engraving of false cachets and forging of documents, instigated Zhouchuan to transfer RMB 2 million Yuan to the account appointed by him, and came into possession of the funds except RMB 300 hundred thousand Yuan shared by Zhouchuan. 一、被告人方晓在本案中起主要作用,系主犯。被告人方晓为骗取金融机构资金,亲手策划、指挥、实施制造假印章、伪造文件,并指使邹川将国有资金200万元转到其指定的账户,除分给邹川30余万元外,余款被其据为己有。
The crime of the defendant does not involve mitigated circumstances. Fangxiao came into possession of RMB 1.69 million Yuan of the defrauded RMB 2 million Yuan. Although his relatives returned RMB 400 thousand Yuan after his criminal acts were found out, the loss of the state amounting to RMB 800 thousand Yuan is still enormous. Furthermore, he showed no sign of repent after arrestment by overthrowing his confession for several times. 二、被告人方晓不具备减轻处罚的情节。在骗取的200万元资金中,方晓占有其中的169万元,虽然案发后其亲属代为退赃40万元,但仍然造成国家80余万元的巨额损失;方晓归案后,多次翻供,说明其并无悔罪表现。
JUDGMENT'S REASONING 
On June 26,2000, Hubei Higher People's Court held, after trial that:
For the purpose of illegal possession, the defendant Fangxiao plotted with Zhouchan to defraud of trading seat from Wuhan Securities Trading Center and to swindle of public property. His acts have constituted the crime of fraudulence. Having engraved several cachets without authorization and forged several documents, the defendant Fangxiao played a key role in the fraudulence of Seat 596 of Wuhan Securities Trading Center. Furthermore, after the fraudulence of RMB 2 million Yuan from Wuhan Securities Trading Center, Fangxiao possessed RMB 1.69 Yuan of it and only gave Zhouchuan a small part. Therefore, Zhouchuan has played a primary role in the joint offense and is the principle offender. The former judgment, which deemed Fangxiao as an accessory, is not in conformity with facts of the case.
Fangxiao and Zhouchuan Co-defrauded state-owned funds of RMB 2 million Yuan and possessed RMB 1.69 million Yuan. Although his relatives returned RMB 400 thousand Yuan, the loss incurred to the state is still enormous. The circumstances of the case are very serious, the former judgment with mitigated penalty to him is improper, and therefore the protesting opinion and causes of the protesting organ is tenable.
The following judgment is issued in accordance with Article 189 (1)(2), Article 12 法小宝(1),and Article 152,52,51(1),22(1),23 of the Criminal Law of the People's Republic of China.
 2000年6月26日湖北省高级人民法院经审理认为,原审被告人方晓以非法占有为目的,与邹川合谋骗取武汉证券交易中心席位,诈骗公有财物,其行为已构成诈骗罪。方晓冒名私刻多枚印章,伪造多份文件,为骗取武汉证券交易中心596号席位起了关键作用。而且,在骗取武汉证券交易中心200万元人民币后,方晓将其中169万元据为己有,仅将其中一小部分分级邹川。因此方晓在共同诈骗犯罪中起主要作用,应系主犯。原审判决认定方晓是从犯,不符合本案事实。方晓与邹川共同诈骗国有资金人民币200万元,并从中占有169万元,其亲属虽代为退赃40万元,但仍给国家造成了巨额损失。方晓犯罪情节特别严重,原判对其减轻处罚不当,抗诉机关提出的抗诉意见及理由成立。依照《中华人民共和国刑事诉讼法》第一百八十九条第一、二项和《中华人民共和国刑法》第十二条

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第一款及1979年《中华人民共和国刑法》第一百五十二条、第五十二条、第五十一条第一款、第二十二条第一款、第二十三条的规定,判决如下:
JUDGMENT 
The conviction part in the first article of the Criminal Judgment of No. (1999) 224 first trial of criminals of Wuhan issued by Wuhan Intermediate People's Court of Hubei Province shall be sustained. The part of punishment to Fangxiao in this article shall be set aside. The defendant of the former trial has committed the crime of fraudulence, shall be sentenced to imprisonment of 15 years, be deprived of political rights for 3 years and be confiscated of property in the amount of RMB 100 thousand Yuan concurrently. 一、维持湖北省武汉市中级人民法院(1999)武刑初字第224号刑事判决书第一项中对方晓的定罪部分,撤销该项中对方晓的量刑部分。原审被告人方晓犯诈骗罪,判处有期徒刑十五年,剥夺政治权利三年,并处没收财产人民币10万元。
The second article of the former judgment shall be sustained. The returned boodle of RMB 400 thousand Yuan shall be given back to Wuhan Securities Trading Center.

 二、维持原审判决第二项,即退出的赃款人民币40万元发还予武汉证券交易中心。
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