Lawyer

Chapter 292 Chapter 298 299 (Merger) Well, you are very honest!

"I definitely don't agree with the use of violence by employees. Those who can be persuaded and educated, I absolutely do not allow my subordinates to use violence, but I can't stand up to those who are in debt, hide around without paying back the money, and threaten our employees who demand money, so it is inevitable that there will be one or two. It's a legitimate defense. It can't be all our fault." Hu Meng said with a beaten expression on his face.

Persuade education!Why does it feel so wrong to say such a high-level word from Hu Meng's mouth!Fang Yi wanted to laugh but it was not appropriate in court, so he had to hold back.

The inspector was so angry that he wanted to go up and kick him twice, but seeing his size, let's forget it, don't kick someone and hurt his feet again.

"You said that the debtor threatened your employees who want to collect money. How did you threaten it?" the inspector asked with a suppressed fire.

"Our employees went to the debtor to collect the money, but the debtor refused to pay back the money and refused to tell him. He still lay on the window and yelled at him to force him, so he jumped off the building. Do you think this is a hooligan who threatens our employees? How can we spoil him." Hu Meng is confident. road.

Fang Yi has seen it, and he doesn't feel embarrassed at all when such shameless words come out of his mouth, and he is quite confident.

"Presiding judge, we're done with the questioning." The prosecutor was speechless and ended the questioning.The presiding judge's face was even colder than before.

"Does the defendant's defender need to question the defendant?" asked the presiding judge.

"Need to ask a question." Ma Banshan said: "Defendant Hu Meng, in the process of lending money, under what circumstances will the debtor default?"

"Most of them are debtors who are out of work and have defaulted on not paying the money. There are also very few debtors who have gone missing because of their debts," Hu Meng said.

"Has there ever been a problem with the APP platform, or have you deliberately breached the contract?" Ma Banshan asked.

"No, we operate the company to make a profit and earn the agreed loan interest. If there is a problem with our platform, the debtor will refuse to repay the loan and cause trouble for us. We operate with integrity." Hu Meng said.

The usury actually claims that it operates with integrity. Well, you are very honest, at least more honest than routine loans.In Fang Yi's heart, the word "serve" was capitalized.

"Presiding judge, I'm done asking." Ma Banshan didn't dare to ask any more questions, but Hu Meng's stupid mouth would cause problems if asked too much.

……

"The facts of this case have been investigated clearly, the court investigation is over, and the court debate is now beginning. The court debate mainly revolves around the disputed facts that have not been certified by the court and how to apply the law based on the facts.

Let the prosecutor speak first. " said the presiding judge.

"Presiding judge and judge: We believe that the defendant in this case set up traps to obtain the address book, charged high service fees and extension fees, and then demanded them in the form of picking quarrels and provoking troubles after expiration. Obviously beyond the scope of private lending, the essence is that the above-mentioned "routines" cooperate with each other to inflate the loan amount, maliciously build up the loan, and achieve the purpose of illegally occupying other people's property. It should be convicted and punished as a crime of fraud. Finish!" The prosecutor said in a cold tone I can't wait to freeze Hu Meng to death.

"The defendant defends himself." Although the presiding judge didn't want Hu Meng to speak in his heart, the procedure must be complete, so it had to be.

"I don't agree with their opinion. Our company and the borrower are in a private loan relationship, but the interest rate is high and there is a little handling fee..." Hu Meng said casually, and the presiding judge saw that what he said was almost the same. directly interrupted his speech.

"Defendant Hu Meng's defender issued a defense opinion." The presiding judge said a little impatiently.

Ma Banshan gave Fang Yi a look, which means it's time for you to play!

"The presiding judge, the judge: the defender believes that the defendant Hu Meng in this case did not defraud others of property by fabricating facts and concealing the truth, which does not meet the constituent elements of the crime of fraud. The reasons are as follows:
[-]. Defendant Hu Meng did not cheat the borrower of money by fabricating facts and concealing the truth

First of all, in the process of operating the company, the defendant in this case did not induce or force the borrower to borrow money through false publicity or other means.The case file shows that both the borrower and the platform staff stated that the platform only used promotional phrases such as "no mortgage, no credit information, fast loan lending", and the platform has clearly informed the borrower on the loan interface, including the loan amount, service fee, loan amount, etc. The time limit, due repayment amount and overdue fee, etc., have to go through two confirmation procedures of "loan agreement confirmation" and "loan amount confirmation" before the loan is released. Before the final confirmation, the borrower can choose to accept or abandon the loan.

Secondly, this case did not form a false creditor-debtor relationship by means of "beheading the head and interest". The routines in the "routine loan" use borrowing as a guise to design routines, create false payment traces, and charge fees in various names by deceptive means, and finally achieve the purpose of illegally occupying the borrower's property.

Returning to this case, the defendant neither created false traces of payment when borrowing money during the operation of the company, nor did he intentionally create a breach of contract, arbitrarily determine a breach of contract, or form a false creditor-debt relationship by maliciously raising debts by other means.The defender believes that it cannot be determined that he has the routine of "beheading interest" just because the converted service fee of 620 yuan is extremely high.

[-]. Subjectively, the defendant in this case did not have the purpose of illegal possession

"Routine loan" is essentially a fraudulent act carried out under the guise of borrowing money. The ultimate purpose of the lender is not to recover the principal and obtain interest, but to illegally occupy the borrower's property far exceeding the principal and interest.

In this case, the defendant’s loan amount is consistent with the loan amount, and what he pursues is that the borrower pays super high interest. When the loan is due, he actively contacts the borrower to request repayment of the principal and interest. High interest.

In reality, the interest of most private loans is higher than that of bank loans, and the collection is much more difficult than that of financial institutions such as banks. We should not only consider the relatively high interest, but also consider the fact that the creditor's rights cannot be realized. risk.

The interest charged by the defendant in this case is indeed much beyond the scope of legal protection, but it cannot be regarded as a "routine" because of the high interest rate.The target customers (borrowers) of the company run by the defendant are basically a group of people with extremely poor credit records. The defendant also bears the risk of total loss of the principal when lending money. The evidence provided by the public prosecutor can also prove that the platform has a high level of bad debts rate (more than 15.00%), because the company operated by the defendant has no substantial restrictions on the borrower at all.

The defendant in this case, as the actual controller of the company, chose the corresponding rate of return based on the characteristics of the industry and risks, and lent money for a fee under the conditions approved by the borrower. His purpose was not to illegally occupy other people's property.

[-]. The borrower is well aware of the high interest rate, and there is no misunderstanding
According to the provisions of the "Criminal Law" on the crime of fraud, the core element of the crime of fraud is the disposition of the property after the borrower falls into a misunderstanding due to being deceived.

Therefore, the defender believes that in this case, it is necessary not only to examine whether the defendant has the subjective purpose of "illegal possession", but also to examine whether the borrower has an objective situation of "falling into a wrong understanding and delivering the property".

"Routine loans" not only require the existence of "routines" in the lending process, but also require that "routines" be the key means for the defendant to obtain property.

In practice, the common criminal methods and steps of "routine loans" include but are not limited to the following situations:
1. Create the illusion of private lending.Criminal suspects and defendants often use the names of "microfinance companies", "investment companies", "consulting companies", "guarantee companies" and "online lending platforms" to publicize externally, using low interest rates, no mortgages, no guarantees, and fast lending as their excuses. The bait attracts the victim to borrow money, and then uses false reasons such as "guarantee deposit" and "professional regulations" to induce the victim to sign a "loan" agreement or related agreement with a falsely high amount based on misunderstanding.Some criminal suspects and defendants will also force the other party to sign a "loan" agreement or related agreements with an inflated amount on the grounds of the victim's previous loan breach.

2. Manufacture false payment facts such as fund transfer and flow of accounts.The criminal suspect and the defendant transferred the funds into the victim's account according to the inflated amount of the "loan" agreement, creating traces of the bank flow that all the loans had been delivered to the victim, and then took various means to recover all or part of the funds. The "loan" agreement or the money shown on the bank statement has not been obtained or fully obtained on the Internet.

3. Deliberately creating a breach of contract or arbitrarily ascertaining a breach of contract.Criminal suspects and defendants often deliberately cause the victim to breach the contract by setting traps for breach of contract and creating obstacles to repayment, or force the victim to repay false debts by arbitrarily ascertaining the breach of contract.

4. Maliciously increasing the loan amount.When the victim is unable to repay, some criminal suspects and defendants will arrange their companies or designated affiliated companies and related personnel to repay the "loan" for the victim, and then sign a larger amount of inflated "loan" agreement with the victim or related Agreement, through this method of "transferring orders to balance accounts" and "repaying loans with loans", the "debt" has been continuously increased.

5. "Debt collection" with both soft and hard measures.When the victim fails to repay the inflated "loan", the criminal suspect or defendant seeks "debt" from the victim or a specific related party of the victim by means of litigation, arbitration, notarization, or violence, threats, or other means.

In this case, the case materials show that most of the defendant’s borrowers made it clear that they accepted the above-mentioned loan cost because they needed the loan urgently and the defendant made the loan quickly. I have borrowed money many times, and some even claim that they are not prepared to repay the borrowed money at all.

Moreover, if the actual loan amount and the amount of repayment of principal and interest do not exceed the prior agreement between the borrower and the lender, it is up to the borrower to decide whether to choose extension, overdue, or repayment.

It is impossible for the borrower to fall into a wrong understanding. They have a clear understanding of the platform's borrowing model and borrowing consequences, and the defendant has clearly informed the loan principal, loan service fee, and loan period when lending. In fact, the platform The displayed loan principal is completely consistent with the received amount, so the above behavior will not lead the borrower into a wrong understanding.

To sum up, the borrower in this case still paid money to the defendant when he knew the real loan amount and the super high interest rate of both parties, which obviously did not fall into the category of "delivering property due to misunderstanding". There is no doubt that there is a principle of legally prescribed penalties for violations.

The defense opinion has been published! After Fang Yi finished speaking, he put down his defense.

Hu Meng on the dock was dumbfounded, and looked at Fang Yi with blinked eyes. He didn't know where Ma Banshan bought this middle-aged male lawyer. Although he couldn't quite understand the professional words the other party said, but He felt that what the lawyer said seemed to be very beneficial to him, and he was even better than Hu Banshan!
Although the two prosecutors on the opposite side felt that Fang Yi's defense was different from what they thought, it seemed reasonable, but they couldn't admit it, absolutely couldn't admit it. Opinion is what it is.

The presiding judge still had a cold face, thinking while listening.

Ma Banshan had discussed the case with Fang Yi three or four times before, and he had read Fang Yi's defense opinion before, and felt that the writing was very down-to-earth, at least more comprehensive than he thought.

……

"The case of Hu Meng, the defendant who was prosecuted by the district procuratorate, was involved in the crime of fraud. The collegial panel had a trial session, conducted court investigations and court debates, and listened to the allegations of the public prosecutor, the opinions of the defendant, the defense and statements of the defendant, and the defense of the defender. The defense opinion, the court hearing is over. Now the court is adjourned for 10 minutes, and the collegial panel will make a deliberation and pronounce the verdict. Take the defendant out of the court." After the presiding judge rang the gavel, he stood up and exited the court.

After the adjournment, Fang Yi and Ma Banshan did not leave the courtroom. Ma Banshan handed Fang Yi a bottle of mineral water: "Lawyer Fang, what do you think the judge will do in this case?"

"It's hard to say, but I think the judge seems to have made a decision long ago." Fang Yi said.

"Oh? How do you say it?" Ma Banshan whispered.

"One of the three judges in the collegial panel seems not to be interested in this case. He should have been pulled over from another case to make up the numbers. The other judge just flipped through the case files casually, so he probably came to make up the numbers. The middle seat The presiding judge seems to be a little careless, completely following the procedure, in fact, he should have already made a decision in his heart, otherwise it would not be like this..." Fang Yi said.

Fang Yi's words left Ma Banshan speechless.

More than half an hour later, Fang Yi and Ma Banshan walked out of the court with relaxed faces.The court finally ruled that Hu Meng did not constitute the crime of fraud and was acquitted.Mr. Hu did not come out with the two lawyers because he still had some formalities to go through.

(According to the "Opinions on Several Issues Concerning the Handling of "Routine Loan" Criminal Cases" jointly issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice (implemented on April 2019, 4), "Routine Loan" is a For the purpose of illegal possession, under the guise of private lending, induce or force the victim to sign "loan" or disguised "loan", "mortgage", "guarantee" and other related agreements, by inflating the loan amount, maliciously creating breach of contract, arbitrarily determining breach of contract, destroying A general term for related illegal and criminal activities that form false creditor’s rights and debts by concealing evidence of repayment, and illegally occupying the victim’s property by means of litigation, arbitration, notarization, or violence, threats, or other means.)
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(End of this chapter)