[Evidence Series] Guidelines on Evidence of Fund-raising Fraud

I. Charge: Crime of fund-raising fraud

Whoever illegally raises funds by fraudulent means for the purpose of illegal possession, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan; If the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan or confiscated property.

Second, the legal and judicial interpretation

(1) Article 192 of the Criminal Law: the crime of fund-raising fraud;

(2) Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Fund-raising (Law Interpretation [20 10] 18);

(3) Notice of the Supreme People's Court Municipality on Cracking Down on Fund-raising Fraud and Illegal Absorption of Public Deposits (Fa Fa [2004] No.240);

(4) Guiding Opinions on Promoting the Healthy Development of Internet Finance issued by the People's Bank of China, the Ministry of Industry and Information Technology and the Ministry of Public Security (Yinfa [2015] No.221);

(5) Interim Measures of China Banking Regulatory Commission on the Management of Business Activities of Personal-to-Personal Loan Information Intermediaries (CBRC Order [20 16]No. 1).

Three. Evidence requirements for approving arrest

(1) There is evidence to prove the fact that the criminal suspect illegally raised funds by fraudulent means.

1, fund-raising fraud case occurred. The basic evidence that should be collected is the case registration form, the decision to file a case, and the work certificate of filing, detection and arrest issued by the public security organ; Investment contracts, project approval documents, publicity materials, training materials, ownership certificates of assets involved before and after the incident, debt vouchers, consumer bills, accounting books, capital receipts and payments, and details of bank account transactions; The victim's statement; The confession of the criminal suspect; Online publicity, trading platform electronic data, etc. ;

2. The identity of the suspect. Materials that prove the identity information of the criminal suspect shall be collected, including household registration certificates, identity cards and other materials.

3. The amount of fund-raising fraud is "large". The basic evidence that should be collected is the details of bank account transactions, the amount of fund-raising fraud and the judicial expertise opinions on losses.

(2) There is evidence that fund-raising fraud is committed by a criminal suspect.

1. The criminal suspect specifically participated in fund-raising fraud. The basic evidence that should be collected is the confession and defense of the criminal suspect, the confession of the co-accused criminal suspect, the statement of the victim, the information of the criminal suspect's publicity and training, the criminal suspect's labor contract, employment certificate and related contracts, agreements, bank account details, electronic data of the trading platform of the unit involved, etc.

2. There is a causal relationship between fund-raising fraud and the victim's loss. The basic evidence that should be collected is the confession and defense of the criminal suspect, the statement of the victim, the testimony of witnesses, the details of bank transactions, electronic data, identification transcripts, expert opinions, etc.

(3) There is evidence that the criminal suspect has the purpose of illegal possession.

According to the confession and excuse of the criminal suspect, combined with the proportion of funds used for production and business activities, the return of principal and the source of funds, the ability to return, the level of personal consumption, the subjective attitude after the incident, etc., comprehensive identification. The basic evidence that should be collected is the confession and defense of the criminal suspect, the confession of the co-accused criminal suspect, the statement of the victim, the criminal suspect's labor contract, employment certificate, publicity materials, training materials, production and operation accounting books, tax payment, ownership certificates of assets involved before and after the incident, consumer bills, ownership certificates of assets involved before and after the incident, relevant agreements, details of bank account transactions, and judicial expertise opinions.

(4) Social risk assessment and review

In order to find out the cause of the crime, the circumstances of the crime, whether to return the stolen money or not, and whether to meet the conditions of obtaining bail pending trial, the following basic evidence should be collected: (1) legal documents that prove that the suspect has a criminal record and commits recidivism, such as judgments, release certificates, administrative punishment decisions, etc.; (2) The decision, judgment and explanation of the case in which the criminal suspect appeared in court and rendered meritorious service; (3) Evidence of the criminal suspect's return of stolen goods and compensation; (4) The hospital diagnosis certificate of major diseases, the pregnancy and lactation certificate of female criminal suspects, and the baby birth certificate, etc.

Four, review the evidence requirements of prosecution

(A) the construction of evidence chain and the facts and evidence to be verified

1. When reviewing the "evidence chain" of fund-raising fraud cases, it should also include the basic information of the victims and their participation in fund-raising activities; The victim in a fund-raising fraud case refers to the fund-raising participant who has actually invested and lost all or part of the principal by the time of filing. Those whose principal is fully recovered can be used as witnesses, but they do not participate in the distribution of stolen money.

Examining whether the investigation organ has collected evidence of the victim's name, gender, age, household registration and contact information, as well as evidence of the victim's participation in fund-raising activities such as investment contracts, income and expenditure of funds, publicity materials and victim's statements.

2 "Main criminal facts" shall examine whether the investigation organ collects evidence to prove the time, place, personnel, purpose of illegal possession, means and process of fraud, fund-raising scale, capital flow and loss.

The "time of committing a crime" shall examine and confirm the evidence of the starting and ending time nodes of fund-raising fraud activities. If fund-raising fraud is carried out in the name of the unit, and the name of the unit and the main person in charge change during the period, the evidence of changing the time node shall be examined and confirmed. If multiple criminal suspects continuously participate in fund-raising fraud, the starting and ending time of each criminal suspect's actual participation shall also be examined and confirmed.

The "crime place" shall examine and confirm the evidence of the propaganda place, signing place, fund collection place, fund withdrawal or use place of fund-raising fraud. Fund-raising fraud in the name of a unit shall also examine and confirm the evidence of the place of registration and actual business operation of the unit.

The "actor" shall examine and confirm the identity of each criminal suspect, his participation in fund-raising fraud, his position, division of labor, role and evidence of illegal income. If fund-raising fraud is carried out in the name of a unit, it shall also examine and confirm the organizational structure, personnel level and work content of the unit, and the evidence of the rank and position of each criminal suspect in the unit.

We should examine the "purpose of illegal possession" and confirm whether the criminal suspect (unit) has the subjective intention of illegally occupying other people's property by deception.

"Means and process of committing crimes" should not only examine whether the fund-raising behavior of criminal suspects (units) is illegal, attractive, open and social, but also focus on the specific ways of fabricating facts, concealing the truth and defrauding others' property, including false public publicity of fund-raising projects, high interest rate induction, wanton exaggeration of production and business activities, concealment and fabrication of money whereabouts and other relevant evidence.

The "scale of fund-raising, capital flow and loss" should be reviewed to confirm the source and total amount of funds, the number of victims, capital flow, the details and total amount of paid investment returns, the amount of losses caused by the incident, the assets involved in the incident, etc.

3. The "scope of persons to be investigated for criminal responsibility" shall be determined according to the motivation and purpose of the perpetrator's participation in fund-raising fraud, the position he holds, the role he plays, the amount of funds absorbed, and the amount of losses caused to the victim. And the principle of consistency between subject and object and the requirements of the criminal policy of combining leniency with severity.

4 "Suspected charges" should focus on the relevant provisions of the specific provisions of the criminal law, combined with the verification of the criminal facts of the case, to determine the suspected charges of the criminal suspect (unit).

There is sufficient evidence to prove that the criminal suspect (unit) illegally absorbs public deposits by fraudulent means for the purpose of illegal possession. If the amount is large, it can be identified as the crime of fund-raising fraud.

(2) Evidence collection and review of fund-raising fraud cases

1. The evidence to prove "the victim's identity and participation in fund-raising activities" shall include:

(1) Documentary evidence such as the victim's ID card, household registration certificate or basic information of the permanent population; (two) the case acceptance registration form; (3) the victim's statement about participating in fund-raising activities; (4) Documentary evidence such as publicity materials, investment agreements, guarantee contracts, bank receipts and payment vouchers provided by the victims.

The investigation organ shall, according to the above-mentioned evidence materials, make a statistical table of the victim's information, listing the victim's name, contact information, criminal suspects handled, investment amount, investment time, rebate amount and whether there is repeated investment.

2. The investigation organ shall collect the statements of the victims one by one as far as possible. Because of the large number of victims, geographical dispersion and other objective conditions, it is really impossible to collect one by one, so we can take the method of homogeneous classified sampling to collect evidence, that is, after merging and comparing the similar elements of the objects to be obtained, select representative objects to make inquiry records. Specific sampling evidence can be obtained according to the following principles:

(1) area full coverage. Fund-raising fraud involves multiple regions (provinces, autonomous regions, municipalities directly under the Central Government, or counties in the same city), and representative victims are selected from various regions to make inquiry records;

(2) Covering all fund-raising names. If multiple fund-raising names are used for fraud, a representative victim shall be selected for each fund-raising name, and the inquiry record shall be kept;

(3) fully participate in the process. Priority should be given to the victims who participated in the whole process of fund-raising activities;

(4) Under the same conditions, priority should be given to the victims who can provide complete written documents to participate in fund-raising activities or the victims who are in the same case and have a large amount of investment in the project.

3, review the victim's statement should focus on the following contents

(1) The time, place and method of obtaining fund-raising information, the information of managers and their personal information, related fund-raising projects, investment principal and return, the use of funds and other publicity contents; (2) The form, time and place of signing the investment contract, the handling personnel and their personal information, the mode of capital contribution, the payee's account information, and the payment period and time agreed in the investment return; (3) The time, frequency, total investment, principal recovery, gains and losses of each investment, and whether there are repeated investments.

When collecting the victim's statement, the investigation organ shall not use the same template for the above contents. For the victim's statement with basically the same content, copying and pasting should also be avoided in the transcript, and the original statement of the victim should be truthfully recorded.

4. When conducting remote interrogation and evidence collection for victims in different places, it is necessary to examine whether the investigation organ has verified the identity information of the victims in different places, whether it has produced legal documents such as case handling cooperation letters, evidence collection lists and transcripts, and whether the case handling organ and the public security organ in the cooperative place have signed and sealed the relevant legal documents and inquiry transcripts.

5. If the victim provides a statement, the investigation organ shall verify the identity of the victim and explain the process of obtaining evidence.

6, confirm the main criminal facts of fund-raising fraud shall include the following evidence:

(1) Documentary evidence such as business license, establishment and change of industrial and commercial registration materials, business premises lease contract and financial license of the unit involved. Confirm the business qualifications and hierarchical structure of the units involved; (2) Documentary evidence such as the criminal suspect's employment resume, labor contract, employment certificate, financial qualification certificate, income (including salary, introduction fee, commission, agency fee, benefit fee and kickback fee), so as to confirm the criminal suspect's position, role, subjective cognition and illegal profit; (3) Documentary evidence such as publicity materials, training contents, foreign investment project contracts, project approval documents, proof of creditor's rights, property transfer, profit and loss of production and operation, main sources of funds for repayment of principal and interest, liabilities, details of bank account transactions, personal consumption of the suspect during the case. Prove that the criminal suspect (unit) fabricated facts and concealed the truth; (4) investment agreements, creditor's rights transfer agreements, guarantee agreements, repurchase agreements, accounting books and vouchers, receipts and payments of funds, bank account transaction details and other documentary evidence to prove the scale of fund-raising and the investment of the victims; (five) the criminal suspect's confession and defense of the above (one) to (five); (6) The victim's statement on the above (1) to (5); (seven) judicial expertise; (8) Documents such as seizure, freezing, seizure and registration of the property involved by the unit and the criminal suspect; (nine) other evidence that can confirm the main criminal facts;

7. If the structure of the unit involved is complex and the personnel are multi-level, the investigation organ shall make a schematic diagram of the unit structure, describing the internal and external structure of the unit involved and the level of each suspect.

8. If fund-raising fraud activities adopt website publicity, establish an Internet trading platform and electronic payment means, it shall also examine whether the investigation organ has conducted an inquest and extraction of electronic data, and whether the process of inquest and extraction strictly implements the Provisions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Handling the Collection and Extraction of Electronic Data in Criminal Cases.

9. If the unit or criminal suspect involved uses multiple accounts to raise funds, it shall review the basic information of each account and the transaction details during the crime.

10. Whether the criminal suspect has the purpose of illegal possession shall be judged according to the circumstances listed in Article 4 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Fund-raising, and based on evidence such as fund-raising fraud mode, fund use, repayment ability and fraud content.

1 1. In cases of joint crime or unit crime, attention should be paid to examining whether the criminal purpose of each criminal suspect has changed and whether there are differences.

If the purpose of a crime changes, we should pay attention to examining the evidence that proves the time node of the purpose change. According to the difference of the purpose before and after the change, we can identify the time period of illegal possession of the purpose, which can be identified as the crime of fund-raising fraud.

Different criminal suspects have different criminal purposes because of different levels, different division of labor and different levels of understanding. Among them, if there is evidence that it has the purpose of illegal possession, it can be identified as the crime of fund-raising fraud.

12, the opinions of judicial expertise shall include the following contents, and the corresponding schedules shall be formulated by classification:

(1) Duration of fund-raising activities, total paid-in funds, sources, number of fund-raising participants, whereabouts of funds, balance of funds at the time of filing, and loss of funds; If there are accounting vouchers for investment projects, the profits and losses of investment projects should also be audited; (2) The time, frequency and amount of capital invested by each victim, and the amount of principal recovered, returned and lost; Repeated investment should be explained separately; (3) Find out the whereabouts of the absorbed funds item by item, such as paying investors' returns, returning the victims' principal, foreign investment, operating expenses, employee income support, consumption, debt repayment and other personal use, and engaging in illegal and criminal activities.

When examining the opinions of judicial authentication, the qualification certificates, authentication scope and other qualification certificates of judicial authentication institutions and authenticators shall be examined at the same time.

13. The amount of fund-raising fraud shall be determined based on the amount that the criminal suspect (unit) has not paid at the time of committing the crime. The amount returned after the crime is not deducted, but it can be considered as a sentencing circumstance.

14. The investigation organ shall, according to all kinds of notices, records and lists of seizure, seizure and freezing of the property involved, and the information it has about the ownership of real estate, vehicles, securities and other assets, make a list of seizure, seizure and freezing of the property involved, indicating the types, characteristics, quantity, ownership, ways of obtaining rights, the starting and ending time of seizure and freezing, etc. And transferred to the judicial organs with the case.

(3) Comprehensive analysis and judgment of evidence

1. On the basis of confirming the legality, truthfulness and validity of single evidence, we should pay attention to examining whether the evidence can be verified, whether the relevant evidence is logical, and whether the confession and excuse of the criminal suspect can be reasonably excluded. It is found that each criminal fact element must have more than two evidences to form a specific and accurate confirmation relationship.

2. The logical analysis between relevant evidences mainly includes:

(1) The amount, whereabouts and losses of the absorbed funds confessed by the criminal suspect, and whether the investment amount, income acquisition and principal loss confirmed by the victim are consistent with the opinions of judicial expertise shall be explained; (2) Whether the total amount of fund-raising, the destination amount and the loss amount in the judicial expertise opinion have a total score correspondence, and if there is any contradiction, it should be explained.

? V. Construction of evidence chain and evidence list

The evidence chain of this crime can be divided into six links: the source of case clues; Lock the suspect and follow the trail; Verify the facts of the crime; A description of the sufficiency and exclusiveness of the evidence; Performance before and after the crime and other sentencing circumstances; Suspected of a crime.

List of evidence of illegal fund-raising crime

Evidence chain

Verification items

basic evidence

Auxiliary evidence

Guidance prompt

Victims and investors reported the case.

Basic situation of informants' participation in fund-raising

Registration form for accepting cases

(1) For whistleblowers involved in illegal fund-raising activities, it is the victim who lost the principal and the investor who has fully returned the principal. (two) statistics of victims and investors in illegal fund-raising cases.

Resident certificate

Registration form for accepting criminal cases

system software

record of trial

Remittance voucher

Promotional materials

Preliminary screening of administrative violations

Preliminary judgment of illegality

Written opinions of the regulatory authorities

(1) Pay attention to the retrieval of relevant financial supervision administrative regulations; (2) Pay attention to obtaining the financial business qualification materials of the units and individuals involved.

Administrative penalty materials

working situation

Verify criminal facts

Crime time

record of trial

1, in the joint crime, it is necessary to find out the time node when each criminal suspect participates in the crime; 2 for illegal fund-raising in the form of units, it is necessary to find out the establishment time of the units involved and the implementation time of illegal fund-raising activities, and find out the participation time of the directly responsible personnel.

record of trial

Business information

Business premises lease contract

locale of a crime

record of trial

For illegal fund-raising in the name of the unit, it is necessary to find out the registered place, business place and contract place of the unit. If the three are inconsistent, pay attention to verify the address of the crime and attach a photo of the house number on the spot.

Record of on-site inquest, inspection and appraisal

House lease contract

Criminals

record of trial

1. This part mainly adopts the combination of formal judgment and substantive judgment to identify the position, division of labor and practical role of specific criminals in unit crimes. In order to provide a factual basis for evaluating the legal status and role of a specific person in the process of "locking the suspect", we should first formally judge the actual role of the actor in the unit crime (including participation time, salary distribution, illegal income and fund-raising amount), and then judge its actual role in the unit crime by finding out the level, responsibility and actual role of the suspect. According to the verification results, a statistical table of suspect information in illegal fund-raising cases was made. 2. The investigation organ shall make an organizational chart of the criminal unit suspected of illegal fund-raising cases and a job list of criminal suspects at different levels to show the organizational structure of the unit involved and the status and division of labor of the personnel involved. 3. Pay attention to the legal compliance of investigation procedures: ensure the identities of computers, USB flash drives and mobile phones in storage media for seizure, inspection and presentation. When extracting electronic data, it shall be accompanied by a description of the extraction process and signed by witnesses to prove the legitimacy of the source; When sealing up, freezing or detaining written materials, computers, USB flash drives, mobile phones and other items, records and lists must be made and signed by the relevant suspects involved. If the suspect refuses to sign, he shall indicate the reasons.

record of trial

labour contract

business license

articles of incorporation

Household registration information

Identification record

Means and process of crime

record of trial

1. The behaviors of the crime of illegal fund-raising include propaganda and implementation, and special attention should be paid to collecting the contents of the commitment and implementation of capital preservation and interest payment in the behavior. 2. When selecting representative victims from behavioral objects to make transcripts, they can be selected according to the following five dimensions: complete vouchers, complete participation process, full coverage of regions, full coverage of projects, and top ranking of fund-raising amount. 3. In the process of audit evaluation, both horizontal and vertical coverage should be considered. Comprehensively identify the inflow and destination of fund-raising funds horizontally, and vertically review the investment amount, principal recovery, payment, loss and the amount involved in illegal fund-raising of specific investors at all levels within the unit involved from the characteristics of the case. 4. Among the objects of illegal fund-raising, the close relatives of the criminal suspect should be excluded from the criminal object, and whether to exclude the employees of the unit involved or the relatives and friends of the criminal suspect should depend on the case.

record of trial

Attachment list

Search record

Transfer list with box

List of evidence obtained

Promotional materials

Bank frozen receipt

Bank unfreeze receipt

Remittance voucher

Judicial accounting expert opinion

Motivation and purpose of crime

record of trial

1. The appraisal opinion requires a detailed review of the capital flow, and the production of summary tables and sub-tables involving all staff, all staff or the whole company and branches, with special attention to the separate statistics of the total and sub-accounts of payment receipts. 2 audit should focus on the financial situation, annual reports and other materials, try to exhaust the final destination of the flow of funds, and make a table of the flow and use of funds involved in illegal fund-raising cases. 3. The destination of funds includes the following nine parts: production and operation, loan and investment, debt repayment, personal consumption, office expenses, payment and refund, commission expenses and salary payment, illegal activities and others. 4. The operation of investment projects includes relevant business qualifications, actual operation of investment projects, and profit and loss of projects.

Bank transaction details

Real estate, vehicles, deposits, stocks, futures and other information.

record of trial

expert opinion/advice

Business information

Record of on-site inquest, inspection and appraisal

Related agreement contract

Financial losses involved

record of trial

Find out the current asset status and seal it up in time, seal up, freeze and seal up the property in cases of illegal fund-raising, and find out the debt service and the loss of investors' principal.

record of trial

Attachment list

expert opinion/advice

Notice of assistance in property inquiry

Notice of assistance in freezing assets

Detention decision

Attachment decision

Salary materials

Lock the suspect and handle the case.

The time of the crime and the process of its arrival

record of trial

1. Focus on the scope of grassroots salesmen. Generally only for salesmen who play a key role and have obvious subjective intentions. The information industry of fugitives should be collected and provided together, and the units suspected of committing crimes should be determined. 2. The judgment basis of the person directly responsible for the unit crime: although there is no management responsibility, the specific criminal act is directly implemented; Subjectively, there is an understanding of the illegality of the act; Playing a backbone or active role in crimes committed by units or departments.

record of trial

Submit a letter

After the incident,

working situation

capture process

Analysis of Abundance and Exclusivity of Evidence

Performance before and after the crime and other sentencing circumstances

Consider the situation before sentencing.

criminal judgement

If the criminal suspect has a criminal record, he shall obtain a criminal judgment and a release certificate; For those who apply probation, in addition to obtaining criminal judgment, they should also obtain a notice of probation, so as to judge whether they have committed a crime within the probation period. Verified materials for reporting meritorious service shall at least include materials for filing a case or taking compulsory measures.

Decisions on commutation and parole

Administrative penalty decision

release certificate

Probation notice

working situation

Consider the sentencing situation after the crime.

Return list

system software

Meritorious proof

Verification materials (guilty confession, compulsory measures materials)

Refund voucher

working situation