If the debtor has no subjective purpose of illegal possession and the borrowed goods cannot be repaid temporarily due to objective reasons other than his will, it should be a civil loan dispute and the crime of fraud is not established. ?
Several Provisions on Handling Economic Crime Cases by Public Security Organs Article 2 In handling economic crime cases, public security organs should pay equal attention to punishing crimes and protecting human rights, paying equal attention to substantive justice and procedural justice, paying equal attention to verifying crimes and recovering losses, strictly distinguishing the boundaries between economic crimes and economic disputes, and not abusing their powers or neglecting their duties. ?
Article 35 of the Lawyers Law: According to the needs of the case, the entrusted lawyer may apply to the people's procuratorate or the people's court for collecting and obtaining evidence or to the people's court for notifying witnesses to testify in court. ?
If a lawyer investigates and collects evidence by himself, he may, with the lawyer's practice certificate and the certificate of the law firm, investigate the situation related to undertaking legal affairs with the relevant units or individuals. ?
Extended data:
Evidence for prosecution of loan contract:
1, written evidence:
The parties concerned should consider documentary evidence such as contracts, IOUs, notarial certificates and invoices. If IOUs are the most powerful evidence of borrowing, IOUs are the most important. However, it is necessary to specify the payee and debtor and sign them, so as to ensure the validity of the IOUs. The following evidence must be provided:
(1) The plaintiff (creditor) shall provide:
Evidence that can prove the creditor's rights relationship with the defendant. Such as contracts, IOUs, receipts, IOUs, etc.
(2) Evidence that the defendant has fulfilled his obligations and failed to do so within the time limit. If the money was paid to the defendant on what day, where and by what means, and the defendant has not returned it at maturity, it is best to provide a witness who has nothing to do with the creditor's rights and the debtor;
(3) If there is a guarantor or introducer, the name, gender, age, work unit and home address of the guarantor or introducer shall be provided; If there is a unit guarantee, the name, address and legal representative of the unit shall be provided;
(4) Provide evidence for the reasons why the defendant fails to perform his obligations.
(2) The defendant mainly provides sufficient evidence to prove that the debt has been fulfilled or has been changed or cancelled. If you provide forged or deceptive materials, you will bear legal responsibility.
(3) Legal basis:
According to Article 4 of "Several Opinions on People's Courts' Trial of Loan Cases" issued by the people's court: "When the people's court examines the prosecution of loan cases, it shall require the plaintiff to provide an iou according to Article 108 of the Civil Procedure Law; If there is no written receipt, the necessary factual basis shall be provided. Prosecutions and rulings that do not meet the above conditions will not be accepted. " In addition, if the evidence material is a copy, the provider refuses to provide the original or the original clue, and the other party refuses to admit it without other materials, it shall not be used as the basis for ascertaining the facts in the lawsuit.
(4) Note: Whether the sued debt dispute case involves the technical appraisal conclusion and notarized registration documents of relevant departments, etc. These evidences are highly probative and should also be provided to the court.
2. Witness's testimony:
(1) The parties must choose the testimony of a witness who has no interest in themselves as evidence, and ensure that the witness can testify in court to facilitate the smooth trial of the court.
(2) Legal basis: the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of Civil Policies and Laws stipulates that the confirmation of the loan relationship should generally be based on the written receipt. If there is no written promissory note, there must be witnesses who have no interest. It can be seen that the evidence effectiveness of witnesses is also the key to whether the parties can win the case.
(3) Private lending mostly occurs in daily life scenes. When the loan occurs, not only the borrower and the borrower are present, but even in many cases where no IOUs are issued or IOUs are issued, it is precisely because the two parties agree to act as witnesses in an intermediary and implement the loan behavior under their witness. Therefore, if the third person present at that time and the witnesses invited by both parties can testify in court and truthfully state the facts at that time, their statements can be used as evidence to prove the facts of the case.
3. Recorded evidence:
(1) In many private lending cases, even if the creditor can get in touch with the debtor, the debtor often refuses to appear in court to participate in the litigation or make a statement in court, which is completely contrary to the statement in private communication. In this case, the plaintiff should pay attention to collecting recorded evidence, such as recording the telephone communication between the two parties.
(2) In order to improve the probative power of recorded evidence, special attention should be paid to the following points:
① The recorded person must be the debtor himself. Although the debtor can apply to an appraisal agency for appraisal if he does not admit that he is himself, in order to reduce the litigation cost, the creditor can ask the other party to report his name and identity during the call.
(2) The recorded content should fully reflect the content of the debt and the process of the loan relationship, the specific amount and the amount owed.
(3) In the process of recording, be kind and pay attention to communication skills to ensure that the other party clearly states the facts, reflects the true meaning, and has no threat or coercion from creditors. In addition, the recorded evidence submitted to the court must be true and complete, and it is the original carrier of the recording without editing, editing or tampering.
4. Screenshot of communication information, voice or other information of Alipay transfer and chat software:
(1) It should be noted that if both parties communicate and negotiate through QQ, WeChat, etc. In the case that the creditor's rights certificate is missing or flawed, and the evidence of loan delivery is insufficient, submitting the corresponding QQ and WeChat records can sometimes be used as strong evidence, and even become the key to determining whether the loan facts are established, so keeping the corresponding records can often play a preventive role.
(2) Compared with traditional forms of evidence such as IOUs and bank transfer vouchers, new forms of evidence such as QQ, WeChat records and Alipay transfer records still have greater risks. For example, not all QQ, WeChat and Alipay accounts have completed real-name authentication. In reality, there is indeed the possibility of being forged, altered or stolen by others. So generally speaking, such evidence is weaker than traditional evidence, and it is not recommended to contact only QQ and WeChat.
(3) If you want to use Alipay or other chat software to exchange screenshots, voice or other information, you must carry out real-name authentication.
(4) Less cash is used through transfer, and the transfer voucher is the most direct and powerful evidence to prove the time and amount of loan or repayment.
References:
Baidu encyclopedia-loan contract dispute