Telephone reply on whether the money paid off after fraud can be recovered by judgment
(1August 26, 992)
Higher People's Court of Xinjiang Uygur Autonomous Region:
Your hospital [1992] Xinfaxian No.3 "Request for instructions on whether the money paid off after fraud can be recovered by judgment" has been received.
Through research, we believe that the illegal income obtained by criminals through fraud should be recovered according to law, even if it is used to pay off debts and return to creditors. There are many ways to recover stolen money and goods, and judgment recovery is only one of them. According to the Supreme People's Court, the Supreme People's Procuratorate, Ministry of Public Security, Ministry of Finance1965121(65) Law Yanzi No.40, Article 3 of the Interim Provisions on Several Issues Concerning Confiscation and Disposal of Illegal Money and Stolen Goods stipulates that "the illegal money and stolen goods transferred by procuratorates and public security organs to the people's courts according to law shall be transferred with the case, and the people's courts shall make a decision to recover them, not limited to. Those who transfer, conceal or pay debts to criminals should follow the flow of stolen money and goods to the end. Even the money obtained by creditors in good faith should be recovered. The Criminal Law does not require creditors who have obtained illegal money in good faith to participate in criminal proceedings. Failure to participate in the proceedings does not affect the order to recover illegal income.
In addition, Vice President Hua Liankui's speech on assisting execution at the President's Meeting of the High Court at the beginning of the year was not only aimed at the execution of civil and economic disputes, but also included the execution of property in criminal cases.
Attachment: Higher People's Court of Xinjiang Uygur Autonomous Region
Request for instructions on whether the stolen money paid after fraud can be recovered by judgment
([1992] Xinfayan No.3)
The Supreme People's Court:
The Intermediate People's Court of the Ninth Agricultural Division of Xinjiang Production and Construction Corps and the People's Court of Yergaiti Reclamation Area under its jurisdiction (referred to as the Reclamation Area Court) sentenced the defendant Jiang An to eight years' imprisonment for fraud. The 205,000 yuan stolen money used by the defendant to repay the debt after fraud shall be recovered and returned to the cheated unit (with the judgment of the original trial and the ruling of the second trial attached). On the issue of requesting the Shayibake District People's Court of Urumqi (hereinafter referred to as the Sha District Court) to assist in the execution of recovering the stolen money, the two sides disagreed and asked our hospital for instructions.
According to the report of the court in the reclamation area, before the incident, the defendant Jiang An signed a three-ply board purchase and sale contract with Director Cui of the material supply station of the Forestry Department of the autonomous region with the contract stamped with the official seal of Ili Overseas Chinese Investment Co., Ltd. In the case that the two sides have never met to discuss, Kong (female), a cadre of the Industrial Credit Unit of the Bank Office of Wushisha District, matched the bridge, with a total target of 500,000 yuan. The material supply station gave Jiang an advance payment of 200,000 yuan, but the contract was not fulfilled. The material supply station chased Jiang for repayment many times, and instructed Kong to be responsible for the recovery. When Jiang went to the ninth agricultural division 16 1 group for fraud, Kong followed 16 1 group. After Chiang tricked the wool into his hands, Kong got into the wool-pulling car, went to Changji Wool Mill, and went to ICBC's business office in changji city. Jiang borrowed a loan from the bank, so please help him. An acquaintance of the business office took Kong to the account bank of Changji Wool Mill and transferred the 6.5438+0.8 million wool money defrauded by 16 1 group to the material supply station of the Ministry of Forestry.
During the investigation of Jiang's securities fraud, the Public Security Bureau and the Procuratorate went to Urumqi to recover the money, but the local bank refused to assist. The reason is that the money transferred to the accounts of enterprises and institutions only recognizes the judgments and rulings of the courts. 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 someone to recover the stolen money. The sand court assisted in recovering the illegal money of 6.5438+0.8 million yuan from the material supply station of the Forestry Department. 1991August 3 1 day, we got back the draft of180,000 yuan from the bank. Returning from Urumqi, the bank told us that on September 6, the Wushisha 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. The 5000 yuan recovered from Sanyun Company was brought back in the form of a draft after directly working for the company, and has now been cashed. When claiming 20,000 yuan from the Autonomous Region Sports Training Brigade, the Tianshan District Court of Urumqi signed an agreement to assist in the execution of the execution issued by our hospital. The next day, when we withdrew money from the bank, we learned that the Tianshan District Court informed the bank in writing that it would not assist us. At this point, the fraud in this case was 200,000 yuan, which could not be recovered because the local court did not assist in execution.
They believe that Jiang An, the defendant in this case, signed a fake contract in the name of the company to defraud 16 1 group wool, and most of the proceeds were used to repay the company's debts, causing heavy losses to 16 1 group. In this case, the ownership of wool money belongs to 16 1 group. Ginger has no ownership of the money and can't be used to pay off debts. It is illegal and invalid for him to pay off his debts with other people's property. Although the material supply station of the Forestry Department and the sports training brigade of the autonomous region have the right to recover from Jiang's unit, they cannot take the property that should belong to 16 1 group as their own, and their creditor's rights can be recovered from Jiang's unit in other forms. As for whether the court can recover and enforce it in the form of a judgment. They think: 1. Article 60 of the criminal law has given the judicial organs the obligation to recover; 2. Judging from the current judicial interpretation, the recovery of funds entering the unit account can only be based on the judgment or ruling of the court; 3. Article 207 of the Civil Procedure Law stipulates that the property part of a criminal judgment or ruling shall be executed by the people's court. According to the Joint Notice of the People's Bank of the Supreme People's Court and the People's Bank of China on Inquiring, Freezing and Deducting Bank Deposits of Enterprises, Institutions, Organs and Groups, if the deposits of the executed unit are deducted, the people's court where the executed unit is located shall be entrusted to assist in the execution.
The reasons why the two-level courts in Urumqi will not assist in enforcement are:
1. Article 60 of the Criminal Law stipulates that all property illegally acquired by criminals shall be recovered or ordered to make restitution. However, the court in the reclamation area ruled that the object of recovery is not the criminal himself, but the legal person who enjoys the creditor's rights to the criminal. In the case that these units did not participate in the litigation, it is not in line with the basic principles for the people's court to rule that these units assume obligations.
2. In the current criminal trial practice, it is usually to recover the illegal income of criminals, including the money and stolen goods that criminals hide, transfer and store in other people's places, and these people know that they are money and stolen goods and refuse to hand them over, so they can be investigated for criminal responsibility for harboring. However, the object of recovery determined by the reclamation court has been repaid by criminals because of the creditor's rights, which cannot constitute the crime of harboring. Judging from the above two points, it is considered that assisting in the execution of this case will have adverse effects in law, economy and society.
In view of the above reasons of the Urumqi court, the Intermediate People's Court of the Ninth Agricultural Division and the Yergeti Reclamation District Court recently proposed that, according to the speech made by Vice President Hua Liankui at the President's Meeting of the National Higher People's Court this year 1 month, if the entrusted court has doubts about the execution of the legally effective legal documents by the entrusted court, it shall, after consultation with the entrusted court, execute them according to the legally effective legal documents of the entrusted court, and any problems arising after the execution shall be borne by the entrusted court.
After discussion, our hospital believes that both opinions have some truth, and there is no clear stipulation in the legal and judicial interpretation, so it is difficult to decide which opinion to support. It is not clear whether Vice President Hua Liankui's assistance in execution only refers to the execution of civil and economic disputes or includes the execution of property in criminal cases.
How to deal with it, please study the answer.
1April 24, 992