[Brief facts of the case].
A small program has been added here, please go to today's headline client to view) The People's Procuratorate of Lengshuitan District, Yongzhou City, charged the defendants Li Xxiao, Ou Xzhuan, and Tang Xlu with the crime of transferring drug proceeds with the Yonglengzhen Criminal Prosecution [2017] No. 546 indictment, and filed a public prosecution with the Lengshuitan District People's Court on November 16, 2017. After the Lengshuitan District People's Court accepted the case, it formed a collegial panel with Judge Guo Liping as the presiding judge, with Judge Peng Beibei and People's Assessor Yang Liping participating, and conducted an open trial. **Clerk Xie Xin served as the trial record. The People's Procuratorate of Lengshuitan District, Yongzhou City, appointed procurator Tan Weiguo to appear in court to support the prosecution, and defendant Li Xxiao and his defenders Nie Shaowu and Tang Xiaoyao, defendant Ou Xzhuan and his defender Chen Shunmin, and defendant Tang Xlu and his defender Tang Feige appeared in court to participate in the proceedings. On February 13, 2018, the People's Procuratorate of Lengshuitan District, Yongzhou City, submitted an application to the Lengshuitan District People's Court for an extension of trial on the grounds that the case needed supplementary investigation, and the Lengshuitan District People's Court decided to grant the application. On March 13, 2017, the People's Procuratorate of Lengshuitan District, Yongzhou City, applied for resumption of trial, and the trial of the case has now been concluded.
The People's Procuratorate of Lengshuitan District, Yongzhou City, alleged that in 2013, the Anti-Narcotics Brigade of the Lengshuitan Branch of the Yongzhou Municipal Public Security Bureau found that Li Xyong had earned 69 percent of the money from drug trafficking in the handling of Li Xyong's drug trafficking case750,000 yuan was invested in the famous residence of Yongzhou City. Based on this situation, the bureau formally notified the defendants Ou Xzhuan and Tang Xlu, and issued a list of seized items, intending to seize the drug stolen goods, but because all the drug stolen goods had been put into the development of the house and could not be taken out for the time being, the defendants Ou Xzhuan and Tang Xlu promised to wait for the house to be completed and then handled by the public security organs. After Li Xyong died of illness in August 2016, Li Xyong's younger brother, defendant Li Xxiao, clearly knew that the money and income invested by Li Xyong in the Yongzhou City Xuefu Mansion were drug proceeds, but still demanded to receive the relevant investment and income on the grounds that Li Xyong's case had been handled clearly. Without verification, defendants Ou Xzhuan and Tang Xlu transferred a total of 810,000 yuan of drug proceeds and profits invested by Li Xyong in the famous residence of the school to Li Xxiao. After defendant Li Xxiao was brought into the case, he did not truthfully confess the whereabouts of the drug proceeds and refused to hand over Li Xyong's drug proceeds and the proceeds.
On July 13, 2017, defendants Tang Xlu and Ou Xzhuan were summoned to the case; On July 14, 2017, Li Xxiao was summoned to the case. The Lengshuitan District People's Procuratorate held that the defendants Tang Xlu, Ou Xzhuan, and Li Xxiao had violated the provisions of Article 349, Paragraph 1 of the Criminal Law of the People's Republic of China, and should be investigated for criminal responsibility for the crime of transferring drug proceeds. The public prosecution submitted witness testimony, relevant documentary evidence, the defendant's confession and justification, audio-visual materials, and other materials to the court to substantiate them, and requested the court to sentence them in accordance with law.
*Opinion] 1. Defendant Ou Xzhuan does not constitute the crime of transferring drug proceeds.
The crime of harboring, transferring, or concealing drugs or drug proceeds is the act of harboring, transferring, or concealing property for criminals that it is known to be drugs or drug crimes, and such "transfer" shall be limited to enabling criminals to achieve the purpose of evading sanctions from judicial organs. This type of crime is an intentional crime. In this case, Ou Xzhuan did not have the intent to commit a crime, and 1) there was no contact between the defendant Ou Xzhuan and Li Xxiao.
Regarding the ** of Li Xyong's investment in the Yongzhou City Xuefu Mingdi, Ou Xzhuan did not know about it from beginning to end, nor did he see the seizure decision of the investigation agency, but he heard that it was drug stolen goods, but he was not sure. Moreover, Ou Xzhuan has no right or obligation to inquire about whether Li Xyong's investment is poisonous or not. Since the defendant Ou Xzhuan did not even know about the money invested by Li Xyong, it is certainly impossible to have a criminal contact with Li Xxiao to transfer the investment money.
2) The defendant did not transfer the drug proceeds.
The decision of Yongzhou Tianyu Gemdale Agricultural Trade Comprehensive Market Development, the developer of Building A of the Ming Mansion of the University, to transfer Li Xyong's investment and income to Li X School was not made by Ou X alone, but was decided by a collective vote of all shareholders of Building A of the Ming Mansion of the University. And the proceeds from the sale of the house by Li Xxiao are all into the account of Yongzhou Tianyu Gemdale Agricultural Comprehensive Market Development.
Therefore, the decision to transfer Li Xyong's investment and income to Li Xxiao was made by Yongzhou Tianyu Gemdale Agricultural Trade Comprehensive Market Development, the developer of Building A of the Mingdi Building, or all the shareholders and members of Building A of the Mingdi Building. The European X Special Authority has no authority to make such a decision.
3) The facts ascertained in the indictment: "Without verification, the defendant Ou Xzhuan transferred a total of 810,000 yuan of drug proceeds and profits invested by Li Xyong in the Mingdi of Xuefu to Li Xxiao". Therefore, Ou Xzhuan only transferred the drug stolen goods to Li Xxiao without verifying whether Li Xyong's case was clearly handled, and there was no situation where he knew that the drug stolen goods were transferred to Li Xxiao.
4) Judging from the confessions of Li Xxiao, Ou Xzhuan, and Tang Xlu in the investigation agency, when Li Xxiao asked for a room split, Li Xxiao said that Li Xyong's matter had been clarified and dealt with, and Li Xxiao was responsible for what happened. Because, Li Xxiao is Li Xyong's younger brother, holding Li Xyong's power of attorney, and Li Xyong was dead when the room was divided. Therefore, Ou X thought that Li Xyong's matter had really been figured out and dealt with. Therefore, there is no intention to transfer the drug proceeds.
5) In this case, since the criminal Li Xyong has been sentenced to death, there can be no purpose of transferring drug proceeds so that the criminal Li Xyong can escape legal punishment, so the crime of transferring drug proceeds is not applicable in this case.
2. Defendant Ou Xzhuan was not aware of the investigative agency's decision to detain.
There is no evidence from the investigating agency to prove that it has clearly informed Ou Jizhuan that Li Xyong invested 69750,000 yuan is drug booty. At the same time, the seizure procedure of the investigating agency was wrong. Investigative agencies seized Li Xyong's 69750,000 yuan, no record of seizure was made, and it was impossible to prove the seizure of 69750,000 yuan is drug stolen. In addition, the defendant Ou Xzhuan did not sign the seizure decision. The seizure decision or list was not signed by the investigators, and no record of the seizure was made, and the seizure procedure was clearly erroneous.
3. The investigative organ's seizure decision was delivered to the wrong object.
The convict Li Xyong put in 69750,000 yuan was invested in the Yongzhou Tianyu Gemdale Agricultural Trade Comprehensive Market Development *** Xuefu Mingdi Building A Project, and the investigating agency should send the seizure decision to Yongzhou Tianyu Gemdale Agricultural Trade Comprehensive Market Development *** Because legally, Yongzhou Tianyu Gemdale Agricultural Trade Comprehensive Market Development *** is the owner of the Xuefu Mingdi Building A project.
However, the object served by the investigative organs was the Yongzhou No. 10 Construction Company, and Tang Xlu only signed as a **person, and the investigative organs asked Tang Xlu to sign on the "holder", which was Zhang Guan Li Dai, and deliberately increased Tang Xlu's responsibility, therefore, legally, the defendant Ou Xzhuan was neither a legal person of Yongzhou Tianyu Gemdale Agricultural Trade Comprehensive Market Development ***, nor a legal person of Yongzhou No. 10 Construction Company, let alone received a seizure decision from the investigative organ. Therefore, the defendant Ou Xzhuan did not have a legal basis to assist the investigating authorities in seizing the drug proceeds.
4. The investigative organs shall pursue the responsibility of the responsible person through administrative punishment, and shall not increase the burden on the responsible person by means of criminal prosecution at every turn.
Currency is a general equivalent, which is not specific, and can be replaced with the same amount of currency, so whoever caused the loss of drug proceeds should be compensated by the investigative organ and may impose administrative penalties, rather than replacing administration with criminal punishment, thus clearly exceeding the provisions of the law.
To sum up, Ou Xzhuan did not intend to transfer the drug proceeds, and the transfer of Li Xyong's investment and income to Li Xxiao was made by the developer or all shareholders and members, so the public prosecution's accusation that Ou Xzhuan committed the crime of transferring drug proceeds cannot be established, and the people's court should acquit Ou Xzhuan in accordance with the law.
Verdict] Defendant Li Xxiao committed the crime of transferring drug proceeds and was sentenced to one year imprisonment with a one-year probation (the probationary period of the suspended sentence is calculated from the date on which the judgment is determined).
Defendant Ou X was sentenced to three months' detention with a three-month suspended sentence (the probationary period of the suspended sentence is calculated from the date on which the judgment is determined).
Defendant Tang Xlu committed the crime of transferring drug proceeds and was sentenced to three months' detention with a three-month suspended sentence (the probationary period of the suspended sentence is calculated from the date on which the verdict is determined).
The court of first instance held that the defendants Li Xxiao, Ou Xzhuan, and Tang Xlu clearly knew that they were drug proceeds and transferred them, and their conduct constituted the crime of transferring drug proceeds. The public prosecution charged defendants Li Xxiao, Ou Xzhuan, and Tang Xlu with the crime of transferring drug proceeds. Defendants Ou Xzhuan and Tang Xlu were gullible in believing defendant Li Xxiao when the public security organs clearly informed them that they were drug proceeds, and subjectively had indirect intent to allow harmful results to occur, and objectively defendants Ou Xzhuan and Tang Xlu assisted defendant Li Xxiao in transferring drug proceeds, and their conduct met the subjective and objective constitutive elements of the crime of transferring drug proceeds, and they should be pursued for criminal responsibility for the crime of transferring drug proceeds. The Lengshuitan District People's Court did not accept the defense opinions put forward by defendant Ou Xzhuan and his defender, and defendant Tang Xlu and his defender. This case is a joint crime, and the defendant Li Xxiao played a major role in the joint crime by raising criminal intent and transferring drug proceeds, and is the principal offender, and shall be punished in accordance with all the crimes in which he participated; Defendants Ou Xzhuan and Tang Xlu assisted defendant Li Xxiao in transferring the drug proceeds, played a secondary role, and are accomplices, and shall be given a lighter or commuted punishment in accordance with law. Defendant Li Xxiao can truthfully confess the facts of his crime after committing the crime, and may be given a lighter punishment in accordance with law. The Lengshuitan District People's Court adopted the defense opinions put forward by defendant Li Xxiao's defender.
Case Analysis] When the public security organ informed the defendant that the money invested in the project was drug money, whether the crime of transferring drug proceeds was constituted when the defendant himself could not control the whereabouts of the funds.
Li Xxiao confessed that in 2013, his brother Li Xyong was arrested for drug trafficking, and the money earned by Li Xyong from selling drugs was invested in the famous mansion of the university, and Li Xyong told him that he had invested 69750,000 yuan, the project is in charge of Tang Xlu and the defendant Ou, but the sale of the house and the whereabouts of the funds are uniformly managed by a construction company of the project builder.
When Li Xyong was arrested, the case-handling agency found the defendant Tang Xlu, told Li Xyong the fact that he had invested drug money in the project, and handed over the seizure decision to Tang Xlu.
In this case, the actual builder of the Xuefu Mansion was X Construction Company, and the distribution of the sale money was uniformly controlled by X Construction Company, and the object of the seizure decision served by the case-handling organ was wrong, and the defendant Ou could not control the distribution of the sale money, and of course could not assist Li X in transferring the drug proceeds, so the defendant Ou X had appealed to the court of second instance.
Conclusion and Recommendations].
In this case, although the case-handling organ told the defendant that Tang Xlu's investment funds were drug funds, it did not tell Ou X, and also sued the wrong target, and the case-handling organ should inform X Construction Company of the situation and serve the seizure decision on X Construction Company. Ou's conviction does not yet meet the standard of proof that the evidence is credible and sufficient. The case is currently on appeal.
Relevant legal knowledge.
How long is the sentence for the crime of disrupting economic order?
Where substandard products are passed off as qualified products, and the sales amount is between 50,000 and 200,000 RMB, a sentence of up to two years imprisonment or short-term detention is to be given, and/or a fine of between 50% and 2 times the sales amount is to be given; where the sales amount is between 200,000 and 500,000 RMB, a sentence of between two and seven years imprisonment and a concurrent fine of between 50 and 2 times the sales amount is to be given; where the sales amount is between 500,000 and 2,000,000 RMB, a sentence of 7 or more years imprisonment and a concurrent fine of between 50 and 2 times the sales amount is to be given; where the sales amount is more than 2,000,000 RMB, the sentence is 15 years imprisonment or life imprisonment, and a concurrent fine of between 50% and 2 times the sales amount or confiscation of property.
Legal basis] Article 140 of the Criminal Law of the People's Republic of China.
Where a producer or seller adulterates or adulterates a product, passes off a fake product as genuine, shoddy or a substandard product as a qualified product, and the sales amount is between 50,000 and 200,000 RMB, a sentence of up to two years imprisonment or short-term detention is to be given, and/or a fine of between 50 and 2 times the sales amount; where the sales amount is between 200,000 and 500,000 RMB, a sentence of between two and seven years imprisonment and a concurrent fine of between 50 and 2 times the sales amount is to be given; where the sales amount is between 500,000 and 2,000,000 RMB, a sentence of 7 or more years imprisonment and a concurrent fine of between 50 and 2 times the sales amount is to be given; where the sales amount is more than 2,000,000 RMB, the sentence is 15 years imprisonment or life imprisonment, and a concurrent fine of between 50% and 2 times the sales amount or confiscation of property.
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