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Telephone reply on the issue of whether the stolen money recovered after fraud can be adjudicated and recovered
(August 26, 1992)
The Higher People's Court of the Xinjiang Uygur Autonomous Region:
Your court [1992] New Fayan No. 3 "Request for Instructions on whether the illicit money used to repay debts after fraud can be adjudicated and recovered" has been received.
After research, we believe that the stolen money illegally obtained by criminals through fraud should be recovered in accordance with the law, even if it is used to pay off debts and return them to creditors. There are many legal provisions for recovering stolen money and property, and recovery by judgment is only one of them. According to Article 3 of the "Interim Provisions on Several Issues Concerning the Confiscation and Disposal of Illegal Money and Profit" issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Finance on December 1, 1965 (65) Fayanzi No. The stolen money and stolen property that are transferred to the people's court for judgment in accordance with the law should be transferred with the case, and the people's court will make a decision together with the judgment." It is in line with the principles of the law for the people's court to recover the stolen money and stolen goods that need to be recovered through a judgment. The recovery of stolen money and stolen goods is not limited to the criminals themselves. If criminals transfer, conceal, or pay off debts, the flow of stolen money and stolen goods should be followed to the end. Even stolen money obtained in good faith by the person who has the creditor's rights should be recovered. The criminal law does not require creditors who have obtained stolen money in good faith to participate in criminal proceedings. Failure to participate in the proceedings will not affect the order to withdraw the stolen money.
In addition, Vice President Hua Liankui’s speech on assisting execution at the High Court President’s Meeting at the beginning of the year was not only for the execution of civil and economic dispute cases, but also should include property in criminal cases. Partial implementation included.
Attachment: ]
Request for instructions on whether the illicit money recovered after fraud can be adjudicated and recovered
([1992] New Law Research No. 3 )
Supreme People's Court:
The Intermediate People's Court of the Ninth Agricultural Division of the Xinjiang Production and Construction Corps and the People's Court of the Yergeti Reclamation District (referred to as the Reclamation District Court) under its jurisdiction were sentenced to fraud in two instances. The defendant Jiang Ping'an was sentenced to eight years in prison. The 205,000 yuan stolen money used by the defendant to cover debts after fraud shall be recovered and returned to the defrauded unit (the original judgment and the second instance ruling are attached). When requesting Urumqi Shayibak District People's Court (referred to as Shayibak District Court) to assist in the execution of the recovery of stolen money, the two parties had different opinions and requested our court for instructions.
According to the report of the Reclamation District Court: Before this case occurred, the defendant Jiang Ping An held a contract with the official seal of Yili Overseas Chinese Investment Co., Ltd. which has been declared invalid, and Cui, the director of the material supply station of the Autonomous Region Forestry Department, in Although the two parties had never met for negotiation, Kong Xianglan (female), a cadre of the Industrial Credit Unit of the Shaqu District Bank Office in Urumqi City, bridged the gap between the two parties and signed a purchase and sale contract for plywood with a total bid of 500,000 yuan. The material supply station paid Jiang an advance payment of 200,000 yuan, but the contract was not fulfilled. The material supply station repeatedly pursued Chiang for repayment and tasked Kong with recovering the money. When the 161st Regiment of Jiang Zhinong's Ninth Division carried out fraudulent activities, Kong also followed the 161st Regiment. After Jiang defrauded the wool, Kong got on the wool truck and went to the Changji Woolen Mill. He also went to the ICBC business office in Changji City to ask for help because Jiang was borrowing a bank loan. An acquaintance of the business office took Kong to the bank where the Changji Woolen Mill had its account and transferred the 180,000 wool from the 161st Group to the Forestry Department material supply station.
During the investigation of Jiang’s security fraud case, the Public Security Bureau and the Procuratorate went to Urumqi to recover the money, but the local banks refused to assist. The reason was: the money transferred to the accounts of enterprises and institutions Only the judgments and rulings of the court will be recognized. Therefore, most of the fraud money in this case was not recovered during the investigation and prosecution stage. After the judgment came into effect, the court sent people to recover the stolen money. When recovering 180,000 yuan of stolen money from the Material Supply Station of the Forestry Department, the Sha District Court assisted in the execution. On August 31, 1991, we got back the 180,000 yuan draft from the bank. When we returned from Urumqi to cash it, the bank told us that on September 6, the Urumqi Sha District Court informed us that the money could not be paid.
The reason is: the execution procedure is wrong, so the payment is stopped. The cash draft cannot be cashed in hand. The 5,000 yuan recovered from the Third Transportation Department was brought back in the form of a money order after working directly for the unit, which has now been cashed. When recovering 20,000 yuan from the Autonomous Region Physical Training Brigade, the Tianshan District Court of Urumqi City signed an agreement to assist in the execution of assistance issued by our court. When we withdrew money from the bank the next day, we found out that the Tianshan District Court had notified the bank in writing that it would not assist us. So far, the 200,000 yuan in stolen money in this case cannot be recovered because the local court does not assist in execution.
They believe that the defendant in this case, Jiang Ping An, signed a fake contract in the name of his company to defraud 161 Group of Wool, and used most of the proceeds to repay the company's debts, causing the victimized company to lose 161 yuan. The regiment suffered heavy losses. The ownership of the wool money in this case belonged to the 161th Regiment. Jiang had no ownership rights in the money and could not use it to repay debts. His act of using property owned by others to pay debts was illegal and invalid. Although the Forestry Department Material Supply Station and the Autonomous Region Physical Training Brigade have the right to receive compensation from Chiang Kai-shek's unit, they cannot take back the property that should belong to the 161st Regiment. Their debts can be recovered from Chiang Kai-shek's unit in other forms. . As for the issue of whether the court can recover the stolen goods and enforce them in the form of a judgment. They think: 1. Article 60 of the "Criminal Law" has given the judicial organs the obligation to recover stolen goods; 2. Judging from the current judicial interpretation, the recovery of money entered into the unit's account can only be based on the court's judgment or ruling; 3. Article 207 of the Civil Procedure Law stipulates that the property portion of criminal judgments and rulings shall be executed by the People's Court. According to the "Joint Notice of the Supreme People's Court and the People's Bank of China on Inquiring, Freezing, and Withholding Bank Deposits of Enterprises, Institutions, Agencies, and Groups", when the deposits of the unit subject to enforcement are withheld, the people who are located where the unit subject to enforcement should be entrusted should be entrusted to The court assists in enforcement.
The reasons why the two courts in Urumqi refused to assist in execution are:
1. Article 60 of the Criminal Law stipulates: All property illegally obtained by criminals shall be recovered or ordered to be refunded and compensated. However, the Reclamation District Court ruled that the person to be recovered was not the criminal himself, but the legal person who had a creditor's right to the criminal. When these units did not participate in the lawsuit, the judgment that these units should bear obligations was inconsistent with the basic principles of litigation by the People's Court.
2． In current criminal trial practice, the illegal gains of criminals are usually recovered, including stolen money and stolen goods that criminals have hidden, transferred, and stored in others. If these people know that they are stolen money or stolen goods but refuse to hand them over, they can be held accountable for concealing the stolen goods. criminal liability, but the recovery target determined by the reclamation district court has received repayment from criminals due to enjoying creditor's rights, which cannot constitute the crime of harboring stolen goods. Based on the above two points, it is believed that assisting in the execution of this case will have adverse effects on the legal, economic and social aspects.
In response to the above-mentioned reasons of the Urumqi City Court, the Ninth Nongshi Normal University Intermediate Court and the Yergeti Reclamation District Court recently proposed: According to the speech of Vice President Hua Liankui at the National High Court Presidents’ Conference in January this year , if the court entrusted with execution has doubts about the execution of a legal document that has become legally effective in accordance with the entrusting court, and there is still a disagreement after consultation with the entrusting court, it shall execute in accordance with the legal document that has become legally effective in the entrusting court. If any problems arise after execution, the entrusting court shall Responsible.
After discussing the different opinions of the Ninth Nongshi Court and the Urumqi Court, our court believes that both opinions have a certain degree of truth. Since there are no clear provisions in the law and judicial interpretation, it is difficult to decide which one should be supported. An opinion. It is not clear whether Vice President Hua Liankui's words about assisting in execution only refer to the execution of civil and economic dispute cases or include the execution of the property part of criminal cases.
Please study the answer on how to deal with it.
April 24, 1992