In Liquan, Shaanxi, a man borrowed 150,000 yuan from a convenience store owner. A few years later, in order not to repay the money, the man used a black plastic bag containing fruits and cigarettes, falsely claiming to be cash, and after defrauding three IOUs, the man tore up the IOUs. After the creditor reported to the police, the procuratorate prosecuted for fraud.
*: People's Procuratorate of Liquan County, Shaanxi Province).
On February 23, the People's Procuratorate of Liquan County, Shaanxi Province, announced an unbelievable case. The facts of the case show that the man, Xu, was born in 1972 and is a villager in a certain village. Yuan is a villager who runs a convenience store in the same village.
From March 2015 to October 2019, Xu borrowed a total of 150,000 yuan from Yuan three times, and wrote three IOUs respectively. The IOU written by Xu clearly stipulates that he shall settle the interest on a regular basis.
It stands to reason that if you don't repay the loan once, you won't have a second time. But Yuan not only borrowed the second time, but also borrowed the third time. Therefore, judging by the fact that the borrowing agreement stipulates that the interest should be settled regularly, Xu is likely to repay the interest on a regular basis, which makes Yuan think that he is trustworthy and profitable!
But who would have thought that three years after the last loan, Xu had the idea that he didn't want to repay the loan anymore and would not be sued for legal responsibility.
In May 2022, in order to achieve this purpose, Xu took the initiative to contact Yuan, claiming that he wanted to repay the loan in a lump sum and asked Yuan to prepare an IOU.
At about 16:00 on May 13, 2022, Xu bought fruits and cigarettes and packed them in a black plastic bag, came to the convenience store operated by Yuan, and put things on the counter, making Yuan mistakenly believe that the plastic bag contained cash. After calculating the interest, Yuan handed over the three IOUs to Xu, and asked if there was cash in the plastic bag, and Xu lied that it was cash.
After Xu got the three IOUs, he quickly drove away on the grounds that he didn't have enough money to go to the car to withdraw the money. After that, Xu tore up all the IOUs and threw them away.
Convenience stores are equipped with monitoring, and whether Xu has repaid the money or not, the monitoring can be seen clearly. Therefore, after the incident, Yuan did not call the police as soon as possible, thinking of giving Xu a chance to make up money to repay the principal and interest.
In fact, you can also understand Yuan's mood, after all, call the police to deal with Xu. It's even less likely to want to get your money back. Even if a lawsuit is filed, it is difficult to enforce.
But who would have thought that Xu still had a fluke mentality and didn't handle the matter well.
In June 2023, Yuan can only call the police to deal with the matter. After the public security organs intervened in the investigation, Xu's behavior was characterized as fraud, and it was a criminal investigation. At this time, Xu lied, and in the end, Xu obtained Yuan's forgiveness through compensation, and was released on bail pending trial on June 4.
On November 21, 2023, the public security organs transferred the case to the procuratorate for review and prosecution. Although the procuratorate later found that Xu had circumstances such as obtaining the victim's forgiveness and admitting guilt and accepting punishment, it still prosecuted him.
Some netizens are puzzled, why defrauding IOUs constitutes the crime of fraud? Some netizens believe that Xu did not admit it, why is he still criminally prosecuted?
First of all, the following three constitutive elements must be met at the same time for the criminal law to constitute the crime of fraud: first, the perpetrator has the subjective purpose of illegal possession; (2) the perpetrator used fabricated facts or concealed the truth; Third, the perpetrator illegally took possession of the victim's property in a relatively large amount.
The property referred to here refers to all property in which the victim has property rights. Legally speaking, property includes, but is not limited to, bearer and non-loss reported valuable payment vouchers, valuable **, valuable tickets and other property.
To be more specific, IOUs are one of the carriers of ownership and a legal certificate for creditors to exercise their claims to maintain their ownership. The loss of an IOU necessarily weakens or even completely eliminates the possibility of the creditor exercising its ownership rights in accordance with the law, and is therefore a kind of damage to its ownership, a real unlawful infringement, that is, the purpose of the actor is to extinguish the claim.
That is to say, an IOU, as a valuable creditor's certificate, itself has the nature of property. The purpose of fraudulently obtaining a loan entry is to eliminate the creditor-debtor relationship, so that the victim's creditor's right may not be realized, so the fraudulent IOU should be regarded as an infringement of lawful property.
Note! Theoretically, the value of an IOU should be determined by taking into account the corresponding legal interest. In this regard, please refer to the following provisions:
Article 5 of the Interpretation on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Theft clearly stipulates that in the case of theft of bearer and non-reported valuable payment vouchers, valuable ** and valuable tickets, the amount of the theft shall be calculated together with the face value and the proceeds that can be obtained at the time of theft.
In other words, for the purpose of illegal possession, Xu used fictitious facts to repay the loan, and falsely claimed to be cash and other means to conceal the truth by using black plastic bags containing fruits and cigarettes, causing Yuan to erroneously dispose of personal property rights, so Xu's conduct met the constitutive elements of the crime of fraud.
Second, the judicial interpretation clearly stipulates that fraud of more than 2,000-5,000 yuan is a relatively large amount, and more than 50,000 yuan is a huge amount.
Article 266 of the Criminal Law also stipulates that a person who defrauds a large amount of public or private property shall be sentenced to 3 to 10 years' imprisonment and a fine.
In other words, even if the interest is not counted, Xu's fraud is worth 150,000 IOUs, which should be determined to be a huge amount and sentenced to 3-10 years in prison.
Finally, according to the "Supreme People's Court's Sentencing Guiding Opinions", where the perpetrator has the ability to admit guilt and accept punishment, compensate the victim's economic losses, and receive forgiveness for compensation, the base sentence may be reduced by up to % respectively.
Article 72 of the Criminal Law stipulates that a suspended sentence may be pronounced against a criminal who has committed a relatively minor crime, has shown remorse, and has been sentenced to fixed-term imprisonment of not more than three years.
To sum up, judging from Xu's remorse that he was released on bail pending trial at the public security organs, and that he pleaded guilty and accepted punishment, compensated the victim's economic losses, and received forgiveness for compensation, Xu is likely to be given a suspended sentence.
In other words, Xu tried his best to tear up the IOU, but the result was not only to repay the money, but also to exchange for the consequences of criminal punishment! It's really worth the loss!
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