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The People's Procuratorate of Liuzhou City v. Ma Lin, Jiang Baolin and Other Six Persons (2000) (Case on the Crime of Committing Frauds by Means of Financial Bills,#$the Crime of Defrauding Loans and the Crime of Offering Bribes)
被告人麻琳、姜保林等八人金融票据诈骗、贷款诈骗、行贿案
【法宝引证码】

The People’s Procuratorate of Liuzhou City v. Ma Lin, Jiang Baolin and Other Six Persons (2000) (Case on the Crime of Committing Frauds by Means of Financial Bills,#$the Crime of Defrauding Loans and the Crime of Offering Bribes)
(Case on the Crime of Committing Frauds by Means of Financial Bills,#$the Crime of Defrauding Loans and the Crime of Offering Bribes)
被告人麻琳、姜保林等八人金融票据诈骗、贷款诈骗、行贿案

The People's Procuratorate of Liuzhou City v. Ma Lin, Jiang Baolin and Other Six Persons (2000)

 

被告人麻琳、姜保林等八人金融票据诈骗、贷款诈骗、行贿案

(Case on the Crime of Committing Frauds by Means of Financial Bills, 
the Crime of Defrauding Loans and the Crime of Offering Bribes) 被告人麻琳,女,45岁,回族,高中文化,原广西柳州市三朦工贸有限公司法人代表。
BASIC FACTS 被告人姜保林,男,42岁,汉族,高中文化,原广西柳州市三朦工贸有限公司总经理。
Defendant: Ma Lin, female, 45, of the Hui nationality, with senior high school background, former legal representative of Guangxi Liuzhou Sanmeng Industrial and Trading Co., Ltd.. 被告人徐洪,女,46岁,汉族,高中文化,原广西金运房地产发展公司柳州分公司财务主管兼柳州市三朦工贸有限公司会计。
Defendant: Jiang Baolin, Male, 42, of the Han nationality, with senior high school background, former general manager of Guangxi Liuzhou Sanmeng Industrial and Trading Co., Ltd.. 被告人李海,男,37岁,回族,大学文化,原武警广西消防总队医师。
Defendant: Xu Hong, female, 46, of the Han nationality, with senior high school background, former financial officer of Guangxi Jinyun Real Estate Development Company, Liuzhou Branch and accountant of Guangxi Liuzhou Sanmeng Industrial and Trading Co., Ltd.. 被告人周烈,男,42岁,汉族,高中文化,原广西柳州市三朦工贸有限公司财务经办。
Defendant: Li Hai, Male, 37, of the Hui nationality, with university background, former doctor of the Armed Police Force Guangxi General Fire Brigade. 被告人何江燕,女,24岁,壮族,初中文化,原广西柳州市三朦工贸有限公司财务经办。
Defendant: Zhou Lie, female, 42, of the Han nationality, with senior high school background, former financial employee of Guangxi Liuzhou Sanmeng Industrial and Trading Co., Ltd.. 被告人胡振强,男,37岁,汉族,中专文化,无职业。
Defendant: He Jiangyan, female, 24, of the Zhuang nationality, with junior high school background, former financial employee of Guangxi Liuzhou Sanmeng Industrial and Trading Co., Ltd.. 被告人何源,男,43岁,汉族,中专文化,原广西柳州市三朦工贸有限公司财务经办。
Defendant: Hu Zhenqiang, male, 37, of the Han nationality, with technical secondary school background, unemployed. 起诉书认定的犯罪事实:
Defendant: He Yuan, male, 43, of the Han nationality, with technical secondary school background, former financial employee of Guangxi Liuzhou Sanmeng Industrial and Trading Co., Ltd.. 1994年下半年,被告人麻琳因经营不善,急需资金,听信秦柳娥等中介人的建议:付给引资人及存款人高额利差,找金融机构协商按引资存款抵押贷款。被告人麻琳、姜保林、李海、何源以月息3%至8%的高息引诱中介人四处拉款存入指定银行后,采取伪刻存款户的印章,或在存款户保证书上添加内容假冒存款户同意以存款抵押委托贷款给三朦公司使用的方法,骗取金融机构的贷款。被告人麻琳、姜保林为进一步引资诈骗,1995年1月成立柳州市三朦工贸有限公司,被告人麻琳、姜保林、李海、何源分别挂任董事长、总经理、经理、业务经理之职。同时2月、4月,被告人李海、何源获巨额赃款后先后离开三朦公司,并到柳州市城中城市信用合作社将自己制作的部分假委托书取回销毁。被告人麻琳、姜保林为继续作案又纠集被告人胡振强、徐洪、何江燕、周烈加入,在被告人麻琳组织、指挥下,被告人姜保林、徐洪引诱储户到金融机构开户存款后,利用储户麻痹大意、金融机构工作人员疏忽或向金融机构工作人员行贿等方法获取储户留在金融机构的印鉴卡上的印模,交被告人胡振强找人伪刻印章,用假章伪造储户的转账支票、汇票,由被告人徐洪、何江燕、何源、周烈从金融机构骗转资金到三朦公司控制的账户,来实施票据诈骗。从1994年12月至1996年4月期间,被告人麻琳、姜保林、李海、何源、胡振强、徐洪、何江燕、周烈先后从柳州市城中城市信用合作社等四家金融机构骗取贷款98起,金额1.2813亿元;采用制作假转账支票、汇票的方法,诈骗23起,金额1.415212亿元,共计诈骗金额2.6965亿元。用后骗的贷款归还前骗的贷款本息7280万元。案发后公安机关追回赃款赃物共计人民币1.0305亿元,给国家造成损失9380万元。此外,被告人麻琳、姜保林、李海、徐洪、何江燕、周烈还先后分别向8名金融机构工作人员行贿人民币共49.2万元。
The criminal facts ascertained in the bill of prosecution were as follows: 被告人麻琳、姜保林参与贷款诈骗98起,金融1.2813亿元,参与票据诈骗23起,金额1.415212亿元;被告人徐洪参与贷款诈骗30起,金额3373万元,参与票据诈骗12起,金额8492万元,获赃款330万元;被告人何江燕参与贷款诈骗27起,金额2292万元,参与票据诈骗18起,金额1.0355125亿元;被告人周烈参与贷款诈骗23起,金额2072万元,参与票据诈骗15起,金额1.407125亿元,获赃款6.5万元;被告人胡振强参与贷款诈骗43起,金额4720万元,参与票据诈骗12起,金额5909万元,获赃款26万元;被告人李海参与贷款诈骗7起,金额982万元,获赃款140万元;被告人何源参与贷款诈骗18起,金额2802万元,获赃款305万元。
In the second half of 1994, Ma Lin (hereinafter referred to as “Ma”) was in urgent need of funds due to poor operation, and believed the advice of Qin Liu'e (an intermediary): to find financial institutions to negotiate on absorbing mortgaged loans as deposits by paying a huge amount of interest difference to the fund absorbers and the depositors. Ma, Jiang Baolin (hereinafter referred to as “Jiang”), Li Hai (hereinafter referred to as “Li”) and He Yuan (hereinafter referred to as “He Y”) enticed the intermediary to solicit depositors everywhere to deposit their money into the designated bank by promising the monthly interest to be as high as 3% to 8%, and then, through falsifying the depositors' seals or adding some contents to their guaranty letters, personated the depositors to agree to entrust Guangxi Liuzhou Sanmeng Industrial and Trading Co., Ltd. (hereinafter referred to as “Sanmeng Co.”) to use the loans by mortgaging the deposited money. In this way, they fraudulently obtained loans from the financial institution. In order to further commit frauds through absorbing funds, Ma and Jiang established Sanmeng Co. in January 1995 with Ma, Jiang, Li and He Y separately holding the posts of the chairman of the board, the general manager, the manager and the business manager. In February and April of the same year, Li and He Y successively left Sanmeng Co. after obtaining a huge amount of illicit money, and went to Liuzhou Chengzhong Urban Credit Union to take back some fake powers of attorney made by themselves. In order to continue to commit the offence, Ma and Jiang gathered together Hu Zhenqiang (hereinafter referred to as “Hu”), Xu Hong (hereinafter referred to as “Xu”), He Jiangyan (hereinafter referred to as “He JY”) and Zhou Lie (hereinafter referred to as “Zhou”). Organized and conducted by Ma, Jiang and Xu enticed the depositors to open accounts and deposit their money into the financial institution, and then obtained the samples of the seals left by the depositors on the seal cards of the financial institutions by such means as taking the opportunity when the depositors were careless, the employees of the financial institutions were negligent or by bribing them, etc.. Then they delivered the samples to Hu telling him to find someone to falsify the seals. After that, they used the fake seals to falsify the depositors' checks and bills of exchange payable in account, while Xu, He JY, He Y and Zhou committed frauds by means of financial bills through defrauding funds from the financial institutions and transferring the funds to the account controlled by Sanmeng Co.. During the period from December 1994 to April 1996, Ma, Jiang, Li, He Y, Hu, Xu, He JY and Zhou fraudulently obtained 98 loans in succession from four financial institutions including Liuzhou Chengzhong Urban Credit Union, with the amount at 128.13 million Yuan; they also committed 23 frauds by making fake checks and bills of exchange payable in account, with the amount at 141.5212 million Yuan. The total fraudulently obtained amount was 269.65 million Yuan. They returned 72.8 million Yuan of the principal and interest of the loans defrauded earlier with the loans defrauded later. After the occurrence of the case, the public security organ recovered a total amount of 103.05 million Yuan of illicit money and articles, from which the State incurred 93.8 million Yuan of losses. Furthermore, Ma, Jiang, Li, Xu, He Jy and Zhou also separately bribed 8 employees in the financial institutions in succession with a total amount of 492 thousand Yuan of Renminbi. 案发后被告人徐洪、李海、何源分别先后向公安机关投案。
Ma and Jiang participated in defrauding 98 loans, with the amount at 128.13 million Yuan, and participated in committing 23 frauds by means of financial bills, with the amount at 141.5212 million Yuan; Xu participated in defrauding 30 loans, with the amount at 33.73 million Yuan, and participated in committing 12 frauds by means of financial bills, with the amount at 84.92 million Yuan, and made 3.3 million Yuan of illicit money; He JY participated in defrauding 27 loans, with the amount at 22.92 million Yuan, and participated in committing 18 frauds by means of financial bills, with the amount at 103.55125 million Yuan; Zhou participated in defrauding 23 loans, with the amount at 20.72 million Yuan, and participated in committing 15 frauds by means of financial bills, with the amount at 140.7125 million Yuan, and made 65 thousand Yuan of illicit money; Hu participated in defrauding 43 loans, with the amount at 47.2 million Yuan, and participated in committing 12 frauds by means of financial bills, with the amount at 59.09 million Yuan, and made 260 thousand Yuan of illicit money; Li participated in defrauding 7 loans, with the amount at 9.82 million Yuan, and made 1.4 million Yuan of illicit money; He Y participated in defrauding 18 loans, with the amount at 28.02 million Yuan, and made 3.05 million Yuan of illicit money. 
After the occurrence of the case, Xu, Li and He Y separately delivered themselves up to the public security organ in succession. 诉讼过程:
PROCEDURAL POSTURE 公安机关于1996年5月4日对被告人麻琳收容审查,1997年1月1日刑事拘留,2月4日经检察机关批准逮捕,次日对被告人麻琳执行逮捕。公安机关于1998年4月26日移送柳州市人民检察院审查起诉,柳州市人民检察院于1998年5月8日以柳市检刑诉字(1998)63号向柳州市中级人民法院提起公诉。因发现新的犯罪事实,需要进一步补充证据,分别于同年7月20日、10月19日前后两次提出延期审理,并变更起诉。
The process of the litigation: 柳州市中级人民法院于1999年4月22日作出一审判决,判决书认定的犯罪事实与起诉书认定的犯罪事实基本一致,认为被告人麻琳等8人先后采用偷盖储户印章、添加虚假的委托贷款内容、伪刻储户的公私章等方法制作假委托书,从柳州市城中城市信用合作社等四家金融机构骗取贷款115笔,金额1.2813亿元;被告人麻琳等6人采用制作假转账支票、汇票的方法,实施票据诈骗22起,金额1.415212亿元,给国家造成损失9266万元。被告人麻琳、姜保林、李海、徐洪、何江燕、周烈还先后分别向8名金融机构工作人员行贿人民币共49.2万元。被告人麻琳等8人的行为触犯全国人大常委会《关于惩治金融秩序犯罪的决定》第十条第三项、第十二条第一项,《关于惩治贪污贿赂罪的补充规定》第七条第一、二款,《中华人民共和国刑法》第十二条、第二十六条第一项、第四项、第二十七条、第四十八条、第五十七条、第六十七条、第六十九条、第三百九十条,《最高人民法院关于审理诈骗案件具体应用法律的若干问题的解释》第四条第三款第一项、第四款、第五条、第九条之规定,构成票据诈骗罪、贷款诈骗罪、行贿罪。判处被告人麻琳、姜保林死刑,剥夺政治权利终身;判处被告人徐洪死刑,缓期二年执行,剥夺政治权利终身;判处被告人李海有期徒刑十五年,剥夺政治权利二年;判处被告人周烈有期徒刑二十年,剥夺政治权利三年;判处被告人何江燕有期徒刑十三年;判处被告人胡振强有期徒刑十年;判处被告人何源有期徒刑十年。
The public security organ took in Ma for examination on May 4, 1996, and detained him according to criminal procedure on January 1, 1997. Upon approval by the procuratorial organ on February 4, the public security organ arrested Ma on the next day. The public security organ transferred the case to the People's Procuratorate of Liuzhou City (hereinafter referred to as “Liuzhou Procuratorate”) for examination and prosecution on April 26, 1998. Liuzhou Procuratorate initiated a public prosecution at the Intermediate People's Court of Liuzhou City (hereinafter referred to as “the Intermediate Court”) on May 8, 1998 with No. 63 (1998) by Liuzhou Procuratorate Concerning Criminal Procedure. Due to its finding new criminal facts and the need of further evidence to be supplemented, it requested for postponing the hearing separately on July 20 and October 19 of the same year, and also modified its prosecution. 一审宣判后,8名被告人均提出上诉。其中被告人麻琳的上诉理由是,本案的主谋是秦柳娥,原判认定其是组织、指挥者的主犯,证据不足。其二审辩护人提出,麻琳主观上没有以非法占用为目的,其行为属于单位犯罪,其行为发生时法律没有规定票据诈骗罪和贷款诈骗罪,其归案后能揭发秦柳娥犯罪,有立功表现,原判对其定罪科刑、适用法律不当。被告人姜保林上诉理由是原判认定犯罪主体有误,三朦公司是依法成立的,以公司名义实施犯罪,应属单位犯罪,认定其是主犯,适用法律不当。被告人徐洪上诉理由是原判认定其是主犯事实有误,票据诈骗、行贿是代表单位利益实施的,原判认定为个人犯罪不当。被告人李海上诉理由是其没有指使他人伪刻印章,不是主犯,其走后,公司已全部归还银行贷款,不应以犯罪论处。被告人周烈上诉理由是其没有主观故意,其行为不构成犯罪。被告人何江燕上诉理由是其在三朦公司管账、记账是麻琳、姜保林安排的,未获赃款,主观上无诈骗故意,不构成犯罪。被告人胡振强上诉理由是其根据麻琳、姜保林的指使找人伪刻印章,没有非法占有为目的的犯罪主观故意,原判认定其犯罪据诈骗票和贷款诈骗罪,适用法律不当。被告人何源上诉理由是其是为三朦公司打工,主观上无非法占有目的,不构成犯罪。
The Intermediate Court rendered the judgment of the first instance on April 22, 1999. The criminal facts ascertained in the judgment were basically in conformity with those ascertained in the bill of prosecution. The judgment considered that, Ma and other 7 persons made the fake powers of attorney by such means as covering the seals of the depositors by stealth, adding fake contents on entrusted loans, and falsifying seals of the depositors, etc. in succession, and defrauded 115 loans from four financial institutions including Liuzhou Chengzhong Urban Credit Union, with the amount at 128.13 million Yuan; Ma and other 5 persons committed 22 frauds by means of financial bills through making fake checks and bills of exchange payable in account, with the amount at 141.5212 million Yuan, from which the State incurred 92.66 million Yuan of losses. Ma, Jiang, Li, Xu, He JY and Zhou also separately bribed 8 employees in financial institutions in succession with a total amount of 492 thousand Yuan of Renminbi. The acts of Ma and other 7 persons had violated the following provisions: Item 3 of Article 10 and Item 1 of Article 12 in the Decisions on the Punishment of the Crimes of Financial Order by the Standing Committee of the National People's Congress, Paragraphs 1 and 2 of Article 7 in the Supplementary Provisions Concerning the Punishment of the Crimes of Embezzlement and Bribery by the same standing committee, Article 12, Items 1 and 4 of Article 26, Articles 27, 48, 57, 67, 69 and 390 of the Criminal Law of the People's Republic of China, as well as Item 1 of Paragraph 3 of Article 4, Paragraph 4 of Article 4, Articles 5 and 9 of the Interpretations of the Supreme People's Court Concerning Some Issues on the Specific Application of Law When Trying Defrauding Cases. Thus their acts had constituted the crime of committing frauds by means of financial bills, the crime of defrauding loans and the crime of offering bribes. As a result, Ma and Jiang were sentenced to death, and were deprived of his political rights for life; Xu was sentenced to death with a two-year suspension of execution, and was deprived of her political rights for life; Li was sentenced to 15 years of fixed-term imprisonment, and was deprived of his political rights for 2 years; Zhou was sentenced to 20 years of fixed-term imprisonment, and was deprived of her political rights for 3 years; He JY was sentenced to 13 years of fixed-term imprisonment; Hu was sentenced to 10 years of fixed-term imprisonment; He Y was sentenced to 10 years of fixed-term imprisonment. 
After the judgment of the first instance was pronounced, all the 8 defendants filed appeals. Ma's reason in the appeal was that, the chief plotter in this case was Qin Liu'e, and the evidence was not sufficient in the original judgment which ascertained her to be the principal criminal as the organizer and director. Her defender in the second instance held that, Ma did not have the purpose of taking possession of the illicit money or articles subjectively, and her acts should belong to the crime committed by the entity; when her acts were committed, there was neither the crime of committing frauds by means of financial bills nor the crime of defrauding loans provided in the law; Ma could expose the crimes committed by Qin Liu'e after she was brought to justice, and performed meritorious services, thus she was inappropriately convicted and the criminal punishment imposed upon her was inappropriately measured in the original judgment and the law was inappropriately applied. Jiang's reason in the appeal was that the criminal subject was wrongly ascertained in the original judgment, because Sanmeng Co. was established in accordance with the law and the crimes committed in the name of a company should belong to the crimes committed by an entity; the law was inappropriately applied if he was ascertained to be the principal criminal. Xu's reason in the appeal was that, the fact that she was the principal criminal, which was ascertained in the original judgment, was wrong; as they conducted the act of committing frauds by means of financial bills and the act of offering bribes by representing the benefits of the entity, it was not appropriate for the original judgment to contribute the crimes of the entity to natural persons. Li's reason in the appeal was that, he did not direct others to falsify the seals, thus he should not be the principal criminal; after he left, the company had returned all the banking loans, therefore, his acts should not be regarded as a crime. Zhou's reason in the appeal was that, she did not have the intention subjectively, thus her acts should not constitute a crime. He JY's reason in the appeal was that, she was managing the accounts in Sanmeng Co., and it was Ma and Jiang who arranged her to keep accounts, moreover, she did not get any illicit money, and did not have the defrauding intention subjectively, therefore, her acts should not constitute a crime. Hu's reason was that he was directed by Ma and Jiang to find someone to falsify the seals, but did not have the intention of committing a crime for the purpose of illegally taking possession of the illicit money or articles, thus the law was inappropriately applied in the original judgment which ascertained him to have committed the crime of committing frauds by means of financial bills and the crime of defrauding loans. He Y's reason was that he was an employee of Sanmeng Co., and did not have the purpose of illegally taking possession of the illicit money or articles, thus his acts should not constitute a crime. 广西壮族自治区高级人民法院于2000年4月8日作出二审刑事裁定,认为各被告人的上诉理由均不能成立,其要求从轻或免除处罚无事实和法律根据。原审人民法院的判决定罪准确,量刑适当,审判程序合法,但原判没有适用刑法五十五条第一款、第五十六条第一款,予以纠正。依照《中华人民共和国刑事诉讼法》第一百八十九条第一项的规定,裁定驳回上诉,维持原判。
JUDGMENT 此案已依法报请最高人民法院核准。
The Higher People's Court of Guangxi Zhuang Autonomous Region rendered the criminal order of the second instance on April 8, 2000, considering that none of the defendants' reason in the appeal was tenable, and their requests for more mitgatory punishments or exemption of punishments were lack of factual or legal basis. In the judgment of the first instance, the crimes were accurately convicted, and punishments were appropriately measured, and the trial procedures were lawful, however, Paragraph 1 of Article 55 and Paragraph 1 of Article 56 of the Criminal Law was not applied in the said judgment, which should be corrected. In accordance with Item 1 of Article 189 of the Criminal Procedure Law of the People's Republic of China, it was ordered that the appeal should be rejected and the original judgment be affirmed. cae_1
This case has been reported in accordance with the law to the Supreme People's Court for approval.

 

     
     
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