Zhu Yuan is an agent of a branch savings office of Agricultural Bank of China. On June 23rd, 2000, Zhu and a branch of Agricultural Bank of China terminated their labor relations. When Zhu left, he hid a blank deposit slip with the seal of Agricultural Bank of China. On September 26, 2000, Zhu filled in and altered it into a five-year time deposit certificate with a face value of 65,438+10,000 yuan. In the name of absorbing deposits, he promised an annual interest rate of 8.35% and accepted 65,438+million yuan from Zhang, which was used for private loans. Before the incident, Zhu had returned 70,000 yuan to Zhang. After the incident, Zhu returned 45,000 yuan of principal and interest.
crosslight
During the trial of this case, there are three different opinions.
The first opinion is that Zhu's behavior constitutes the crime of altering financial bills. The reason is that Zhu falsified false bank deposit certificates, which disturbed the normal management order of state financial institutions, and his behavior conforms to the constitution of the crime of altering financial tickets, so he should be convicted and sentenced for the crime of altering financial tickets.
The second opinion is that Zhu's behavior constitutes the crime of illegally absorbing public deposits. The reason is that Zhu illegally absorbed public deposits, filled in and altered bank deposit certificates, and defrauded Zhang of 65,438+10,000 yuan. His behavior violated the national financial management system and should be convicted and sentenced for the crime of illegally absorbing public deposits.
The third opinion is that Zhu's behavior constitutes the crime of financial voucher fraud. The reason is: Zhu's act of altering the bank deposit slip is a means, and his act of defrauding Zhang of 654.38+10,000 yuan in the name of absorbing Zhang's deposit conforms to the constitution of the crime of financial voucher fraud, and should be convicted and sentenced for the crime of financial voucher fraud.
Comments and comments
In this case, Zhu committed two acts, one was to alter the deposit certificate of the bank, and the other was to use the altered deposit certificate to obtain 65,438+10,000 yuan from Zhang in the name of high-interest storage. Generally speaking, his behavior involves several articles and charges: first, the crime of altering financial tickets; second, the crime of fraudulently using financial vouchers; third, the crime of illegally absorbing public deposits; and fourth, the crime of fraud. This involves both the concurrence of laws and articles and the implicated offense, which is extremely complicated. In order to accurately characterize Zhu's behavior, it is necessary to comprehensively analyze the nature of Zhu's behavior, the relationship between behaviors, the constitution of crimes involved and the relationship between crimes, so as to correctly convict Zhu.
1. Zhu's act of altering bank deposit certificates.
Article 177 of the Criminal Law clearly stipulates the crime of forging or altering financial bills. According to this provision, the crime of forging or altering financial bills refers to the act of forging or altering bills of exchange, promissory notes, checks, entrusted collection vouchers, remittance vouchers, bank deposit certificates, letters of credit or accompanying documents and vouchers, and forging financial bills such as credit cards. Zhu's act of altering bank deposit certificates conforms to the constitution of the crime: (1) the subject of the crime. The subject of this crime is the general subject. Any natural person who has reached the age of criminal responsibility and has criminal responsibility ability can become the subject of this crime, and Zhu Can becomes the subject of this crime. (2) the object of crime. The object of this crime is the national financial ticket management system. Zhu's act of altering bank deposit certificates affected the due reputation of financial bills, undermined the national financial bill management system, and achieved the criminal purpose of this crime. (3) Subjective aspects of crime. The subjective aspect of this crime can only be constituted by intention. From Zhu's keeping a blank and stamped certificate of deposit privately to altering the certificate of deposit and filling it into a five-year time deposit with a face value of 65,438+10,000 yuan, all his actions prove that he is subjective and intentional. (4) The objective aspect of crime. The objective aspect of this crime is the act of forging or altering various financial bills. Zhu illegally altered the blank certificate of deposit by altering or filling it out, which is an act of alteration. Therefore, Zhu's act of altering bank certificates of deposit conforms to the criminal constitution of the crime of altering financial instruments.
Second, Zhu used the altered certificate of deposit to withdraw 65,438+10,000 yuan from Zhang in the name of high-interest storage.
This behavior does not belong to the crime of illegally absorbing public deposits. Article 170 of the Criminal Law stipulates the crime of illegally absorbing public deposits, which refers to the act of illegally absorbing public deposits or absorbing public deposits in disguised form, disrupting financial order. The subject of this crime is the general subject, and the object of infringement is the national financial management system. Subjectively, it is intentional, and objectively, it shows that the actor illegally absorbs public deposits or absorbs public deposits in disguise. As far as Zhu's behavior in this case is concerned, it does not conform to the objective aspect of the crime of illegally absorbing public deposits. Although Zhu got 654.38 million yuan from Zhang in the name of absorbing deposits, his behavior did not meet the standard of illegally absorbing "public deposits". Public deposit means that depositors are an unspecified group. If the depositors are only a few individuals or specific, they cannot be recognized as public deposits. Obviously, Zhu only "sucks storage" from Zhang, and the object of his behavior is a specific individual, which does not belong to illegally absorbing public deposits. Therefore, Zhu's behavior does not conform to the constitution of the crime of illegally absorbing public deposits and should not be regarded as the crime of illegally absorbing public deposits.
Zhu's behavior constitutes the crime of financial voucher fraud. According to the second paragraph of Article 194 of the Criminal Law, the crime of financial voucher fraud refers to the use of forged or altered bank settlement vouchers, such as entrusted collection vouchers, remittance vouchers and bank deposit vouchers, to defraud others of their property in a large amount. (1) The subject of this crime is a general subject, and Zhu meets the subject conditions; (2) The object of this crime is a complex object, which not only infringes on the national management system of financial documents, but also damages the ownership of public and private property. In this case, Zhu's behavior not only violated the national financial voucher management system, but also violated Zhang's property ownership; (3) The subjective aspect of this crime must be intentional, and the actor must show that he knows that forged or altered financial documents are used. In this case, the altered bank deposit slip used by Zhang was altered by himself, which was obviously intentional subjectively. (4) The objective manifestation of this crime is to use forged or altered settlement vouchers for fraudulent activities, with a large amount. Zhu used altered certificates of deposit to fabricate facts about Zhang and conceal the truth, defrauding Zhang of 654.38 million yuan, which reached a large standard. From the above series of analysis, we can see that Zhu's behavior conforms to the crime of financial voucher fraud, and his behavior constitutes the crime of financial voucher fraud.
What needs to be mentioned here is that some people think that the crime of financial voucher fraud aims at illegal possession, and Zhu's behavior does not mean that it has the purpose of illegal possession. Zhu should not commit the crime of financial voucher fraud. The author believes that the purpose of crime is an optional element of crime, not a necessary element of all crimes, but only a necessary element of some crimes. According to the basic principle of a legally prescribed punishment for a crime, the criminal law clearly stipulates that the purpose of illegal possession is an essential element of a crime, otherwise, the purpose of illegal possession cannot be artificially regarded as an essential element of a crime. Judging from the provisions of Article 194 of the Criminal Law, it is not stipulated that the purpose of the crime of financial voucher fraud is illegal possession. Therefore, the purpose of illegal possession is not an essential element of the crime of financial voucher fraud, and whether the actor Zhu has the purpose of illegal possession does not affect the composition of the crime of financial voucher fraud.
Third, the conviction of Zhu's behavior.
Through the above analysis, it can be concluded that Zhu does not constitute the crime of illegally absorbing public deposits. How do the other three charges, namely, the crime of altering financial tickets, the crime of financial voucher fraud and the crime of fraud, apply to Zhu? First of all, the crime of financial voucher fraud and fraud are related to the concurrence of laws and regulations, and it is a form of fraud for actors to cheat with financial vouchers. According to the principle of parallel application of laws and regulations, that is, the principle of special priority application, the crime of fraud is excluded, and the crime of financial voucher fraud is convicted and sentenced in accordance with special laws and regulations. Secondly, Julie used altered bank deposit certificates to defraud money and property, which is an implicated offense, that is, the crime of altering financial bills and the crime of financial voucher fraud are implicated offenses, among which the crime of altering financial bills is a means of financial voucher fraud. For implicated offenders, the applicable rule is to choose a felony for punishment. Among the two crimes, the crime of financial voucher fraud is more serious, so Zhu Ying, the perpetrator of this case, should be convicted and punished for the crime of financial voucher fraud.