<h1 class="pgc-h-arrow-right" >: Introduction to the case</h1>
Fu Moumou, director of a municipal agricultural committee and secretary of the party branch of the municipal animal husbandry and veterinary bureau, retired in November 2015. In 2007, Mr. Fu established a professional cooperative of agricultural and animal husbandry science and technology (hereinafter referred to as the A Cooperative) in the name of his wife Zhang X and 8 other farmers, and obtained the "Animal Epidemic Prevention Condition Certificate" in 2012, the business scope is breeding donkeys, breeding and sales, and in 2013, he obtained the "Breeding Livestock and Poultry Production and Operation License", and the production and operation scope is Huaibei Gray Donkey. In 2012, Mr. Fu, in the name of his daughter-in-law, established a certain agricultural and animal husbandry science and technology co., LTD. (hereinafter referred to as Company B) in the name of his daughter-in-law, and obtained the "Animal Epidemic Prevention Condition Certificate" in 2012, with the business scope of goats, breeding and sales, and in 2013, he obtained the "Breeding Livestock and Poultry Production and Operation License", and the business scope was Huanghuai goat breeding sheep.
Due to the withdrawal of the partner Meng X, after the two sides reached an agreement, the A cooperative took over Company B and paid Meng more than 1 million yuan for the initial construction costs, but the legal person did not change to Fu X. Cooperative A and Company B are both on a farm in the county, and the sheep breeding site and the sheep and donkey site are on both sides of the road, and the A cooperative has won the title of provincial and municipal leading enterprise. At that time, Fu xxx believed that the cooperative was the key support object, it was easier to get subsidies, and although company B had been actually operated by Fu xxx, but the legal person had not yet changed, the declaration procedures in the name of company B were cumbersome and difficult, and although the A cooperative and company B were two enterprises, they were in the same business place and the same set of operators, which was actually a unit. Therefore, the project declaration was made in the name of the A cooperative, and the business scope of the animal epidemic prevention condition certificate of the A cooperative was changed from "breeding donkeys" to "breeding goats". The three projects applied for by Fu X have all been accepted and inspected by experts from the county and municipal agricultural departments, and the acceptance and inspection personnel know that these two enterprises are actually Fu X's enterprises, and donkeys and sheep are farmed in the same farm. After the acceptance and inspection, the government financial department allocated subsidy funds. Between 2013 and 2015, Mr. Fu applied for agricultural project subsidies to the government three times in the name of A Cooperative, and received a total of 1.5 million yuan in agricultural project subsidies.
As the first case handled after the official establishment of the local Supervision Commission, coupled with various factors such as our acquittal defense as a defender, this case has received greater attention in the local area and the province, and the Supervision Commission has concluded its investigation to transfer the case to the procuratorate for the crime of suspected embezzlement. The procuratorate changed the charge and prosecuted Fu xxx to the court for fraud, alleging that between 2013 and 2015, the defendant Fu xxx repeatedly defrauded agricultural support funds totaling 1.5 million yuan by means of altering documents, and put forward sentencing recommendations for 13 to 14 years. After a one-and-a-half-day public hearing, in the end, the court of first instance adopted most of the defender's opinions on the innocence defense, reduced the facts of the crime charged in the indictment from three to one, reduced the amount of the crime from 1.5 million to 400,000, and sentenced the defendant to pay a fixed-term imprisonment of four years and six months. After the first-instance judgment was pronounced, Fu X appealed, and the procuratorate immediately filed a protest, and the case is currently in the process of second-instance trial.
Because this case also involves the protection of endangered species and the protection of the property rights of private enterprises, it has received attention and in-depth reports from the magazines of First Finance, Democracy and The Law.
<h1 class= "pgc-h-arrow-right" > second, the focus of the dispute between the prosecution and defense</h1>
In this case, the public prosecution alleged that Fu X's fraudulent agricultural support funds involved a total of three projects from 2013 to 2015. Fu xxx did submit copies of altered documents when declaring the project three times, so the focus of the dispute between the prosecution and defense in this case is mainly whether Fu xxx has the subjective intention to defraud the state agricultural special subsidy funds and whether Fu xxx has really implemented the project content, specifically the following points:
1. Whether the enterprise of Fu X meets the conditions for project declaration
The prosecution believes that the three project declarations made by Fu X have problems such as altering relevant documents, declaring subjects, and non-compliance with the layout of the farm, and do not meet the conditions for project declaration. The defense argued that no matter which enterprise declared in the name of the enterprise, the two enterprises were operated and managed by Fu X, there was no problem with the layout of the farm, and The enterprise of Fu X met the requirements of the project declaration and the national industrial policy.
2. How to view the act of altering national documents
The prosecution argued that Fu X, knowing that he did not meet the declaration requirements, forged relevant state documents to make a project declaration in order to illegally obtain project funds, proving that he had the intention of fraud. The defense argued that, on the surface, although Fu xxx had altered the relevant state documents and there was a certain degree of fraud, the act of counterfeiting could not necessarily be presumed to have the purpose of illegal possession in fraud, otherwise it would be objectively attributed, which did not conform to the principle of subjective and objective consistency in determining the crime.
3. How to view the transfer of a small amount of money to a personal account after the issuance of agricultural subsidy funds
The prosecution believes that after the agricultural subsidy funds of the financial department are issued to the enterprise account of the A cooperative, they are transferred to the account of the wife of a certain person, and then some of the money is transferred to his sub-account or other people's accounts several times, which is an individual or family consumption. The defense argued that Fu X transferred the subsidy funds to his wife's account for various expenses on the farm, and a small amount of money was transferred to his sub-account or other people's accounts in order to repay the loans to relatives and friends, and the purpose of illegal possession could not be presumed on this basis.
4. Whether Fu X has actually implemented the project content
Based on Meng's testimony, the prosecution determined that Fu submitted a false cement invoice of 400,000 yuan at the time of project acceptance, and believed that Fu did not build in accordance with the requirements of the project in the year of declaration, and some of the materials of Fu's application for acceptance proved that he did not fully purchase breeding sheep in accordance with the content of the project declaration. The defense argued that the 400,000 cement invoice was issued by Meng X when he was unable to issue a construction invoice to Fu X, which was not false, and there was documentary evidence to prove that the project declared by Fu X had been built in advance in the current year, and he had purchased breeding sheep according to the content of the project declaration.
<h1 class = "pgc-h-arrow-right" > the grounds for the decision of the court of first instance</h1>
After trial, the court of first instance held that:
In order to obtain funds for the 2013 state support project, Fu Moumou changed the animal epidemic prevention condition certificate of the A cooperative, fabricated facts, concealed the truth, and declared the project. After the declaration, the project was not built in accordance with the content of the project declaration, but part of the invoice was falsely issued, together with the relevant bills and other payment vouchers of Company B's investment in the construction of the farm in the previous year, as well as the relevant bills and payment vouchers of the A cooperative and Company B's investment in the construction of the farm in that year, which were reported as acceptance materials for investment and construction. From the above facts, it can be seen that after Fu X declared the project in the name of A Cooperative, he did not implement the project, which was essentially a fictitious project that did not exist, subjectively had the intention of illegally occupying 400,000 yuan of state subsidy funds, objectively implemented the act of fabricating facts and concealing the truth, which met the constituent elements of the crime of fraud and constituted the crime of fraud. The prosecution was convicted of the charges, which this court upheld.
In order to successfully obtain the funds for the national support projects in 2014 and 2015, Fu moumou copied the copy of the animal epidemic prevention condition certificate of the A cooperative that was transformed in 2013, and changed the B company with a copy of the breeding stock and poultry production and operation license of company B into an A cooperative for two project declarations. Judging from the above facts, although Fu xxx changed the relevant documents in the declaration of the 2014 and 2015 projects, but the project really existed, Fu xxx, in the name of the A cooperative, respectively, in accordance with the content of the project declaration, the project implementation plan and the relevant project agreement, determined that Fu xxx subjectively illegally possessed the above 1.1 million yuan project subsidy funds Insufficient evidence. The relevant allegations of the public prosecution organ against so-and-so are not established, and this court does not support them.
Based on this, the court of first instance convicted Fu X of fraud and sentenced him to four years and six months in prison.
<h1 class= "pgc-h-arrow-right" > fourth, the difficulty of the innocence defense in this case</h1>
(1) Fu xxx did alter relevant documents, and there was fraud
In this case, the public prosecution alleged that Fu X's fraudulent agricultural support funds involved a total of three projects from 2013 to 2015. Fu Moumou did submit copies of altered documents when declaring projects three times, and there was a certain amount of fraud. On the surface, Fu X's behavior is to alter relevant documents to receive state agricultural subsidy funds, and there are similar conviction cases in judicial practice, which makes it difficult to defend.
(2) The relevant witnesses of the agricultural department claim that the layout of Fu X's farm does not meet the declaration conditions, which is unfavorable to so-and-so
In this case, when the relevant leaders and experts of the county and municipal animal husbandry departments were investigated by the Supervision Commission, they all claimed that the distance between the donkey and the sheep in Fu X's farm was not up to standard, that the donkey and sheep breeding was not in line with the conditions, that the declaration materials were false, and that they should not receive subsidies.
(3) After the issuance of agricultural subsidies, a small part of the payment is suspected of personal consumption
After the agricultural subsidy funds of the financial department are issued to the A cooperative enterprise account, they are transferred to the account of The wife of a certain person, and then a small part of the money is transferred to his sub-account or other people's accounts many times, etc. On the surface, the transfer has nothing to do with the cost and expenditure of the farm, and there is a suspicion of personal and family consumption.
<h1 class= "pgc-h-arrow-right" >5. Defender's point of view and justification</h1>
Considering the whole case, we believe that Fu X is not enough to become a fraud crime, and we mainly defend the innocence based on whether Fu X meets the conditions for project declaration and whether he has implemented the project planning content in accordance with the requirements of the project, and the defense grounds are as follows:
(1) Fu X did not have the subjective intention to defraud the state of special subsidy funds for agriculture
01 The purpose of fu mou's declared project is to use it for the development of breeding enterprises, carry out the construction of standardized meat and sheep farms and breeding and breeding of white goats, rather than filling their own pockets and diverting them for other purposes
On the question of whether the declared project is to make up for the loss, we want to emphasize that the compensation for the loss is only the result of objectively obtaining funds, not that the declaration of the project is to simply make up for the loss, and the statements in these confessions are contrary to the original intention of paying so-and-so. Don't companies declare losses if they don't? Taking a step back, even if it is to make up for the loss, it is also to make up for the loss of the breeding enterprise, which is still used for the operation and development of the enterprise, and does not violate the use of funds stipulated in the agricultural subsidy policy, let alone that the subsidy funds are used to make up for the loss of the enterprise, which means that Fu X has the intention of fraud.
02What is the view of the act of altering national documents? Can it be inferred from fraudulent acts such as altering documents that Fu X has the intention to defraud? Of course not
On the surface, Fu moumou did alter the national documents such as the animal epidemic prevention condition certificate of the A cooperative, and there was a certain amount of fraud, but the fraudulent behavior could not necessarily be presumed to have the purpose of illegal possession in the fraud, otherwise it was objectively attributed, which did not meet the principle of subjective and objective consistency in determining the crime. Isn't there any fraud in the crime of fraudulently obtaining loans, forging and altering state documents, certificates, and enterprise seals? The difference is still whether the perpetrator subjectively has the purpose of illegal possession. In particular, in the case of fraudulent payment of goods, the perpetrator may have obtained a bunch of false procedures and false materials when applying, but as long as it is used for business development and used for loan purposes, it will not be treated as a loan fraud.
Fu xxx's alteration of animal epidemic prevention certificates and other national documents, in the name of A cooperative, is nothing more than the convenience of declaring signatures and handling procedures, and he believes that it is easier to obtain support with the help of the organizational form of the cooperative, but it does not mean that Fu xxx must not declare it without declaring in the name of A cooperative, so he tries every means to falsify. Company B and Cooperative A are both enterprises that pay so-and-so, which are two brands and a set of people, and in one place, the actual declaration of company B also meets the declaration conditions. Company B's business scope is shown as breeding sheep, and in 2012 won the provincial recognition of the Huanghuai white goat breeding base, in 2013 was rated as the provincial meat and sheep standardization demonstration field, the whole region is one, is the key support object of the agricultural industry policy, none of the three project declaration conditions prohibit enterprise declaration. It is precisely because of this that Fu X has good reason to think that his company meets the declaration conditions.
03 From the aftermath of Fu X's receipt of subsidy funds, it should not be inferred that he has the purpose of illegal possession
After Fu X got the project funds, he used all the funds for the construction of the farm, the purchase of feed, the preservation and breeding, the renewal of equipment, the repayment of the money lent by the bank to the enterprise, neither absconded with funds, nor other for illegal and criminal activities, he transferred the funds to Zhang X's personal account for the convenience of using funds, and the bank card itself was mainly used for the daily operation of the enterprise, not for the transfer of hidden funds. It seems that Zhang Moumou's bank card has personal consumption and household expenses, but it cannot be viewed in isolation to see where the funds are used. This bank card has a mixture of various sources of funds, including state subsidy funds, large loans from relatives and friends, and loans from the bank postal savings. In fact, through the evidence presented by the defender and the bank flow, it has been fully confirmed that Fu X used this card to borrow money from relatives and friends many times for business operations, purchase feed, and the consumption on the card showed that the payment of rent and hotel operations, payment of fines, etc. were actually to repay the loans of relatives and friends.
Moreover, these agricultural subsidy projects are "built first and then supplemented", focusing on whether the declared investment and expenditure are real, whether the project expenditure is fictitious, as to whether the subsidy funds are all used for enterprises after they are in place, it is not required by the policy, as long as they are mainly used for enterprise breeding operations, it cannot be considered that Fu X has the intention of fraud. This is also in line with the spirit of the relevant judicial interpretations, and the January 2001 SPC "Minutes of the National Symposium on the Trial of Financial Crime Cases by Courts" states that "if an actor uses most of the funds to invest in production and business activities, and uses a small amount of funds for personal consumption or squandering, it should not be considered to have the purpose of illegal possession."
(2) Fu X's alteration of state documents and declaration in the name of A Cooperative did not give rise to a wrong understanding of the competent department responsible for examination and approval. This is consistent with the reasons for the retrial of Zhang Wenzhong's case that it did not constitute fraud.
01 In the Zhang Wenzhong case, Zhang Wenzhong's Wumart Group applied for the national debt technical transformation project in the name of a subsidiary company of a state-owned enterprise, which did not cause the competent department responsible for examination and approval to have a wrong understanding, and Wumart Group, as a private enterprise, also has the qualifications to declare. The same is true in the present case
Whether it is A cooperative or B company, the two enterprises are Fu X's enterprises, he is responsible for operation and management, the leaders of the county, city, including the provincial authorities often go to Fu X's farm for inspection, they are also aware of the business scope of the two enterprises, sheep house and donkey house are known in the same farm yard. This can be fully confirmed by the testimony of Jiang X, Zhou X and others. Although there is no testimony from the leaders of the Provincial Agricultural Commission in the volume, the breeding livestock and poultry business license issued to Company B, the Huanghuai White Goat Breeding and Breeding Base and the Meat and Sheep Standardization Demonstration Base are all issued and recognized by the Provincial Agricultural Commission, and the A Cooperative also applies for the provincial gray donkey breeding subsidy every year, so it is equally clear that the provincial competent department's business scope for the A Cooperative is donkey breeding. Therefore, the examination and approval department did not change the business scope of breeding donkeys into breeding goats because of paying a certain animal epidemic prevention certificate and breeding livestock and poultry business license, which made the leaders of the county, city and provincial competent departments have a wrong understanding that the business scope of the A cooperative is breeding sheep.
02 The reason why the project declared by Fu X is smooth enough to establish the project, accept and obtain subsidies is nothing more than to go through the on-site inspection of experts and score each item, and believe that the enterprise meets the basic conditions for declaration
At present, when these leaders and experts are investigated by the Supervision Commission, they all say that the donkey and sheep polyculture of Fu X's enterprise does not meet the conditions, the declaration materials are false, and they should not receive subsidies, saying that the acceptance was passed based on the situation. These witnesses were all leaders of the county and municipal animal husbandry departments or financial departments, and they were all subject to supervision by the Supervision Commission, and they were called for questioning, and it was not excluded that they would make such statements out of self-preservation in favor of the investigating organs. When they say this, the defender believes that they have their grievances, but the reasons are too far-fetched. Mr. Fu has never had any concealment or fictitious project implementation content for the leaders and experts of the approval department. In addition, with regard to the issue of donkey and sheep polyculture, it has always existed objectively since the farm was built, and no leaders and experts pointed out in the acceptance of the three projects and signed in black and white that they meet the conditions for project establishment. That's because as animal husbandry experts, there is no cross-infection in sheep breeding and donkey raising, which is common sense, and the testimony of Sun Moumou, a senior livestock pastor provided by the defender, can also be confirmed.
Cooperative A and Company B, as companies actually managed by Fu X, have the basic conditions for establishing a farm and comply with the relevant provisions of the Animal Epidemic Prevention Law. Including the choice of site requirements away from the village and the main traffic arteries, and the terrain should be high, can not be in low-lying places, there is a certain water source, there is a supporting power, living area, office area, feeding area should be relatively separate, clean road and dirty road should be separated. This is also the focus of the project team experts to see whether they are qualified and scoring, and these companies that pay so-and-so are eligible. As for whether the distance between breeding livestock and poultry farms is up to standard, in the technical assessment of the 2013 meat and sheep standardization demonstration farm construction project, among the 19 39 scoring points in five categories, only less than 2 of the 100 points are scored. According to the requirements of the three project declaration materials, the animal epidemic prevention certificate is not the key material submitted by the declared project. Whether the project meets the declaration conditions, the approval department pays more attention to the on-site inspection and whether the enterprise has really implemented the project content and whether it has promoted the development of the agricultural industry.
Fu Moumou's construction of a demonstration standardized Huanghuai white goat farm, breeding sheep breeding, improved breeding, farmer training, equipment transformation, etc., is an objective and undeniable fact. Fu Moumou changed the business scope of "breeding donkeys" into "breeding goats" on the animal epidemic prevention certificate and breeding poultry license of the A cooperative, but the documents were falsified, and it could not be denied that the enterprise itself met the basic conditions for declaration.
It can be said that there is no causal relationship between the altered certificate and the project passing the acceptance and receiving the subsidy funds, and the approval department has not been misunderstood. That is to say, there is a lack of a criminal law causal relationship between the alleged deceptive acts of the prosecution and the so-called harmful consequences of fraud.
(3) Fu X did not fabricate the project expenditure and conceal the truth, but actually implemented the project content, and the advance investment and expenditure were objectively existing
In the 2013 vegetable basket demonstration farm project construction project, according to the experts' item-by-item scoring, the farm met the standards in terms of site selection and layout, facilities and equipment, management and epidemic prevention, environmental protection requirements, and production technology level. It has a site, a scale, technical experts, equipment, a complete set of management, cultivation system, seed preservation, epidemic prevention and disinfection and other systems, built the largest and most standardized production of Huanghuai white goat demonstration base in the region, and has received leading experts at all levels and farmers for inspection, visit and study for many times. In terms of early investment, Fu and Meng invested a total of more than 2 million yuan to build a breeding farm: including more than 1 million sheep barns, 300,000 to 400,000 yuan of equipment, fences and machines, more than 400,000 imported varieties, and the cost of renovation of epidemic prevention facilities. Among them, there are 400,000 yuan of cement invoices, which are not falsely opened for the acceptance of the project as mentioned in the records of Fu X and Meng X. The real situation is that Fu X cooperated with Meng X in 2012, Meng X was responsible for building the sheep house, after the sheep house was built, Meng X withdrew from the cooperation halfway, and Fu X returned more than 1 million yuan of investment money to Meng X, but when looking for Meng X to build the invoice for the construction of the sheep house at that time, because the person who built the sheep house, Cai X, died suddenly, the infrastructure investment was not finalized, and the ticket could not be issued. In this case, Meng Mou found someone to open a cement invoice of 400,000 yuan, not without actual construction and false invoices. These circumstances have been explained by Fu X when the Supervision Commission interrogated him, but the confessions have not all been truthfully recorded. In the 2013 declaration project in the volume, there are a number of receipts signed by Cai Moumou in the expenditure voucher provided by the declared project, proving that he received the payment for the construction of the sheep house paid by Company B, adding up to a total of more than 400,000 yuan.
There is also the 2014 Huanghuai White Goat Breeding and Promotion Project and the 2015 Meat sheep Transformation Project, and the series of documentary evidence and photos of the file can also confirm that Fu Moumou really implemented the content of the project declaration. Including the introduction of Huanghuai white goats, the purchase of a number of equipment, the invitation of experts to attend classes to carry out more than 100 times of farmer training, breeding of fine breeds, breeding sheep breeding. As for the 2014 declaration of investment plan 1.45 million, subsidies of 600,000 yuan, and only 600,000 bills for Fu X, it is because the financial department only requires Fu X to provide 600,000 bills, and does not require all investment and expenditure certificates. This does not mean that the actual expenditure of the breeding enterprise is only 600,000, and the evidence submitted by the defender confirms that the farm also buys feed from the farmers and other large expenses, which are paid in cash, and the farmers cannot issue bills, but it is one of the main expenses of the enterprise, and the average annual cost is about one million.
(4) All the projects declared by Fu X meet the needs of the central agricultural industry policy and market development, and have not caused the harmful consequences of fraud
In the 2013 Cailanzi Project, the policy document of the implementation plan of that year stipulated that priority should be given to subsidizing the construction of provincial and ministerial commercial poultry standardization demonstration farms and large breeders, and tilting towards the meat sheep and beef cattle projects. In 2014, the Huanghuai White Goat Breeding promotion project was in line with the key support objects of the policy document. The relevant documents clearly express support for the breeding and improvement technology of fine seeds that can effectively improve the production capacity of agricultural products, and Fu Moumou also trained farmers in the model of sorghum enterprise + base + farmer, and implemented straw return to the field, which meets the requirements of circular economy and green environmental protection. According to the provisions of the provincial documents and municipal documents, the policy of the project declaration in 2015 is that meat sheep breeding is one of the two major support industries, and the improvement of meat sheep breeds is the main technology, of which the municipal documents also specifically name the introduction and breeding of Huanghuai white goats, the preservation of Huanghuai white goats, the selection and breeding of Boer goats, Dubo sheep and other good breeds, and the implementation of hybrid improvement.
The public prosecutor claimed that Fu xxx did not meet the declaration conditions, affected the declaration of other enterprises, and there was an improper competition. However, the Huanghuai White Goat Demonstration Breeding Base in the entire northern Anhui region pays a certain enterprise, which enterprise can compete with him? In addition, Mr. Fu signed a technical service contract with the College of Animal Science and Technology of the Provincial University of Agriculture and Technology, signed a promotion project agreement with the county finance bureau, invited experts to teach, trained farmers, and distributed thousands of copies of sheep breeding technical materials to ensure the implementation of breeding sheep breeding technology and epidemic prevention regulations. From 2013 to 2017, thousands of sheep were provided to the city and the surrounding areas for sheep farmers and markets, and at the same time, as the farmer entrepreneurship training training base of the Municipal Agricultural and Broadcasting School, it received hundreds of people to visit and study, trained the number of livestock husbandry personnel and sheep farmers in the city, and drove the rapid development of the sheep breeding industry in the city, making positive contributions to increasing farmers' income, developing the breeding industry, and enriching the urban vegetable basket, and also won the high praise and recognition of experts and leaders, and these achievements are all witnessed by the county, city and provincial animal husbandry departments.
6. Comments on the case
In the defense of this case, combined with the specific circumstances of the case, we have carried out a series of defense work: first, to study the case file in detail, especially documentary evidence materials, to provide strong evidence support for the defense; second, to collect relevant evidence to prove that Fu X did not have the purpose of illegal possession, and truly implemented the project content in accordance with the requirements of the project declaration; third, to check the farm site and submit relevant photos of the farm to deepen the case-handling personnel's understanding of the farm environment, conditions and understanding of the case; fourth, to retrieve and submit relevant cases. Scholar's articles and local case handling guidance provide useful references for the court of first instance in this case; fifth, various written applications are submitted in accordance with the law, and multiple telephone calls and face-to-face communication are made to urge the court to handle the case prudently.
In fact, there is precedent for how to properly handle this case. The Supreme People's Court's retrial verdict in Zhang Wenzhong's case is the best model, which is of extremely important guiding significance for judicial practice and should be used as a reference for handling Fu's case. After comparison, it can be found that Fu X's case is far lighter than Zhang Wenzhong's case, whether in terms of the factual circumstances of the forgery or the direction of the use of funds, and the weight is light, and Zhang Wenzhong can still make a verdict of innocence.
At the same time, Professor Che Hao, a well-known scholar at Peking University, also wrote a commentary article on Zhang Wenzhong's case, discussing the fraud part of Zhang Wenzhong's case from the aspect of criminal law theory, and mentioned that when dealing with similar suspected fraud cases, the general adjudication rules excavated and extracted from Zhang Wenzhong's case can also be fully used. When examining whether there is any property loss in a fraud case, the judgment shall be made in turn according to the two steps of the economic value and social value of the property. It is only in the context of "conscious self-harm", when the victim voluntarily bears the loss of the economic value of the property, that is, it is necessary to continue to judge the social value of the property. In cases of "conscious self-harm", when the social purpose is frustrated, it can be considered that the social value of the property has not been realized and the victim has suffered property damage, at which point the crime of fraud may be established.
This case is similar to Zhang Wenzhong's case, and it is all an act of private enterprises forging and altering relevant procedures to apply for special state subsidy funds. Briefly using the criminal law theory of "unconscious self-harm" and "failure of social purpose" in the fraud crime mentioned by Professor Che to analyze this case, because the state subsidy is essentially a kind of unconsidered financial support of the state for the enterprise, it is not to exchange some property interest from the enterprise as consideration, but it is a property that is voluntarily disposed of knowingly without compensation. Simply put, it is a conscious self (property) damage. Moreover, the subsidy funds obtained by Fu X are really used for project construction investment, and the social purpose of the special subsidy funds (to support the development of the agricultural industry) has not failed. Therefore, Fu X's conduct does not constitute the crime of fraud.
Of course, Zhang Wenzhong's case is not an isolated case, before that, some local judicial organs have issued normative documents, and there are many resolved cases that will not be treated as fraud in cases with similar circumstances to this case.
As for how to objectively evaluate Fu X's declaration in the name of A Cooperative, the breeding donkey on the animal epidemic prevention certificate of A Cooperative is transformed into a breeding goat? We believe that this is the defect of the declared project, the problem of irregular declaration, and it does not cause how serious the consequences are, nor is it the consideration factor for the project assessment and acceptance, at most it is an administrative violation, which is essentially different from the fraud of defrauding the state subsidy funds. This point is also consistent with the reason for the retrial of innocence in Zhang Wenzhong's case, according to the Animal Epidemic Prevention Law and the Animal Epidemic Prevention Review Measures, the alteration of animal epidemic prevention certificates and the use of altered animal epidemic prevention certificates are nothing more than fines imposed on enterprises, and cannot be often elevated to criminal punishment.
Although the Court of First Instance adopted most of the defender's plea of innocence, it regrettably found one of the charges as fraud. We believe that how to characterize the act of forging documents to obtain special subsidies from the state needs to be analyzed in conjunction with the specific facts of the case. In this case, based on the specific facts and evidence of the above analysis, and with reference to similar cases, local judicial regulations, academic views, etc., we believe that fu xxx should be found not to constitute the crime of fraud. We will continue to represent the second instance trial of this case.
Defense attorney:
Cheng Xiaolu
Partner / Lawyer
Cheng Xiaolu, partner and lawyer of Deheng Beijing Office, deputy director and secretary general of the Criminal Professional Committee, has served in the Beijing Municipal Procuratorial System for a long time, won the title of Outstanding Prosecutor, Doctor of Law, is good at criminal defense and representation, has hosted a series of major, complex and influential economic cases, job-related crime cases and criminal and civil intersection cases, and provided special criminal legal risk prevention services for a number of state-owned enterprises and private enterprises.
Email: [email protected]
Golden Swallow
Lawyer
Jin Yan, lawyer of Deheng Beijing Office, Master of Criminal Law. He is good at criminal litigation and dispute resolution, and has hosted and participated in many major and complex criminal cases.
Email: [email protected]