Foreword:
This is a criminal case entrusted by the victim, so it is called **, not a defense. This scam case is about the scam of masks during the pandemic. It is someone who claims to be able to produce masks, so they commit fraud on the Internet. The difference in this case is that the public security department quickly seized the stolen money, and the victim's money was recovered. This is rare in fraud cases.
The victim also retained a lawyer to ensure that the stolen money could be returned quickly and recover the loss, hoping that the matter could proceed smoothly with the participation of the lawyer.
Pronouns
Honorable Presiding Judge and People's Assessors:
Accepting the entrustment of the victim Lin Zhuoyue, the lawyer served as his litigation person, and hereby expresses the following ** opinions on the facts and legal issues related to this case, and I sincerely request that they be considered:
In the indictment of the People's Procuratorate of Xiaodian District, Taiyuan City, and the Criminal Prosecution [2010] No. 123, this court believes: "During the epidemic period, the defendant Guo Yonghua fabricated facts, concealed the truth, and used WeChat to commit telecommunications fraud many times, with a total amount of 6,617,800 yuan, a particularly huge amount ......”
According to the indictment: "On February 25, 2020, the public security organs recovered 6.3 million yuan of stolen money returned to the defendant Guo Yonghua's ICBC card by the "New Lottery" gambling platform in accordance with the law, and froze a total of 6.58 million yuan in the defendant Guo Yonghua's ICBC card through the anti-fraud platform of the Ministry of Public Security. ”
According to the content of the above indictment, it can be seen that the defendant Guo Yonghua defrauded a total of 6,617,800 yuan in this case, and the defrauded amount was basically recovered and inspected by the public security organs, that is, 6.58 million yuan of stolen money in Guo Yonghua's industrial and commercial bank card was frozen.
1. On the return of the stolen money in this case
Article 245 of the Criminal Procedure Law of the People's Republic of China stipulates: "Public security organs, people's procuratorates and people's courts shall properly keep the property of a criminal suspect or defendant and its fruits that have been sealed, seized or frozen for verification, and shall make a list and transfer it with the case. No unit or individual may misappropriate it or dispose of it on its own. The lawful property of the victim shall be promptly returned. Contraband or items that are not suitable for long-term storage shall be handled in accordance with relevant state provisions.
Physical objects used as evidence shall be transferred with the case, and where it is not appropriate to transfer, their lists, **, or other supporting documents shall be transferred with the case.
Judgments made by people's courts shall dispose of sealed, seized, or frozen property and its fruits. ”
Article 366 of the Supreme People's Court's Interpretation on the Application of the Criminal Procedure Law provides: "Where sealed, seized, or frozen property and its proceeds are found to be unlawful gains or other property involved in the case that shall be recovered in accordance with law, a judgment shall be made to return it to the victim or confiscate it and turn it over to the state treasury, except as otherwise provided by law." ”
According to article 6 of the "Several Provisions of the Supreme People's Court on the Enforcement of the Property-Related Portions of Criminal Judgments", "the content of the judgment on the property-related part of a criminal judgment shall be clear and specific. Where the number of assets involved in the case or the number of victims is relatively large, and it is not appropriate to list them in detail in the main body of the judgment, they may be summarized and a separate list applied. ”
Based on the above provisions, it can be seen that since the 6.58 million yuan frozen in this case is the lawful property of the victims, it should be returned to the victims, including Lin Zhuoyue, in a timely manner. In addition, in the judgment of the people's court, it is necessary to deal with the frozen 6.58 million yuan and its fruits, that is, to clearly and specifically record and deal with the content of the return, including the amount that each person needs to return.
Because the victims involved in this case are five people, namely Lin Zhuoyue, Wang Longmu, Tao Ying, Wu Bo, and Wang Fei. The number of victims is only a handful and is not very large, so the content of the refund (including the victim and the amount of the refund for each victim) should be listed in detail in the main text of the judgment.
2. The issue of the priority of the return of stolen money and the enforcement of fines
In accordance with the "Several Provisions of the Supreme People's Court on the Enforcement of the Property-Related Portions of Criminal Judgments".
Article 13: Where the person subject to enforcement bears both criminal and civil liability during enforcement, and their assets are insufficient to pay, enforcement is to be carried out in the following order:
1) Medical expenses in personal injury compensation;
2) Restitution of victims' losses;
3) Other civil debts;
4) Fines; 5) Confiscation of property.
It can be seen that the restitution of the victim's losses in this case should take precedence over the enforcement of the fine. **It is considered necessary for the judgment to indicate that when enforcing both restitution and fines, the restitution of the victim's losses shall take precedence over the recovery of the fine. Find a Taiyuan lawyer.
The above is kindly requested to be considered by the collegial panel.
Lin Zhuoyue's lawsuit ** person:
March 30, 2020.
Postscript:
Therefore, in view of the purpose of the client in this case, our ** words focus on the issue of how to deal with the seized property. List the property that is clearly seized by laws and regulations and shall be returned to the victim, and when there is a fine, the victim should be returned to the victim before the issue of the fine should be dealt with.
At that time, because of the fear that the return of stolen money could not be followed, he also listed the legal provisions in the ** word, making it clear that the court's judgment must clearly state the handling of stolen money and goods, so as to leave a basis for the return of stolen money to the victim in the future. Because if this is not specified in the judgment, it is very likely that the return of the stolen money in the future will not be relied upon. As a result, the stolen money will not be lost. Taiyuan to find a lawyer.
The final judgment made it clear that the seized 6.58 million yuan of stolen money should be returned to the victim, and the money was returned soon after the judgment took effect.