"You mentioned earlier that the bank has approved your loan, how do you know? How did Wei Xikui know about this? Fang Yi asked.

"It was the person in charge of the loan at the bank who told me personally, and later I took Wei Xikui to the bank to verify the approval of the loan, and it was also the person from the bank who said it to Wei Xikui." Hu Weijun said.

"You just said that the bank didn't lend because there was a problem with the collateral, is there a problem with the collateral? What went wrong? Fang Yi asked.

"It's my house, I have a big three-bedroom, when I was applying for a mortgage, because I couldn't find the real estate certificate, I was in a hurry to go to the bank for a loan, so I found someone to forge a real estate certificate." Hu Weijun said.

"In other words, the house is real and belongs to you, but because the real estate certificate was lost, you were in a hurry to go through the loan mortgage procedures, so you forged the real estate certificate, right?" Fang Yi asked.

"Yes. The police investigated the matter at the first trial, and the evidence was also cross-examined at the trial. Hu Weijun said.

"Presiding judge, the defender has finished asking." Fang Yi looked at the expressionless presiding judge sitting above.

"Now that the court presents evidence and cross-examines the evidence, do the prosecutors, defenders, and appellants have any new evidence to submit?" The presiding judge asked.

"There is no new evidence." Tripartite equalization.

……

"The court investigation is over, and now the court argument is open. Before the debate, the court draws the attention of the prosecution and the defense to the fact that the debate should mainly focus on the determination of the charge, sentencing and other controversial issues. The appellant and the defender are invited to speak.

Appellant Hu Weijun can defend himself. The presiding judge said.

"I don't think I'm guilty of fraud enough......," Hu Weijun recounted his previous statement.

"Appellant Hu Weijun's defender speaks." The presiding judge looked at Fang Yi.

"Honorable Presiding Judge, Judge: The defender believes that Hu Weijun does not constitute the crime of fraud for the following reasons:

1. Hu Weijun borrowed money from others at high interest rates and issued IOUs, and the borrowed funds were used for legitimate business activities such as stock market investment, repayment of bank loans, and factory operations, and did not conceal or squander the loans, and according to the bank transfer records of the funds provided by the public prosecutor, it can be seen that Hu Weijun had been repaying the principal and interest of the loan on time before the case occurred, and there was insufficient basis for determining that Hu Weijun had the purpose of illegal possession.

2. Although Hu Weijun fabricated some facts or concealed the truth, he did not carry out this act for the purpose of illegal possession, but to enable the machine processing plant to continue to operate, so his conduct did not meet the constitutive elements of the crime of fraud, and the loan behavior involved in this case should be a civil fraud, and the disputes arising therefrom with creditors should be resolved through civil litigation and should not be pursued for criminal liability.

3. Judging from Hu Weijun's past experience, the appellant Hu Weijun himself was an entrepreneur who valued his love and kept his promises, and during the heyday of his machine factory, local people, including banks, vied with each other to lend land to earn stable interest. At a time when economic growth is slowing down and financial lending disputes are frequent, many entrepreneurs are insolvent, and this case is a typical economic dispute case formed in this context and should not be treated as a crime.

In summary, the court is requested to ascertain the facts in accordance with the law and support the appellant's claim. The defender's arguments have been elaborated. Fang Yi said.

"It is now up to the Prosecutor to speak." The presiding judge said.

"Presiding Judge, Judge: The prosecutor believes that the facts ascertained in the first instance are clear, and the evidence is credible and sufficient.

Hu Weijun obtained property by fabricating facts and concealing the truth, and forged fake real estate certificates as collateral, and used large amounts of money to invest in high-risk stocks and pay usury. Knowing that he was unable to repay his debts, he still borrowed large sums of money to the point of becoming insolvent and absconded after the incident.

In summary, Hu Weijun meets the basic characteristics of the crime of fraud and should constitute the crime of fraud. It can be seen from this that Hu Weijun's grounds for appeal cannot be sustained, and it is recommended that the appeal be rejected and the original judgment be upheld. The female prosecutor said.

"The prosecutor may respond to the defender's arguments." The presiding judge said.

"Okay, in response to the defender's defense opinion, the prosecutor responded as follows:

1. For the purpose of illegal possession, Hu Weijun fabricated facts, concealed the truth, and defrauded Feng Ping and Wei Xikui of 17 million yuan, and the above facts have been verified to be true. Although it did not squander, it invested its funds in the stock market for the obvious purpose of illegal appropriation.

2. It is a fact that Hu Weijun's machine shop had deteriorated before borrowing money, that he had borrowed a large amount of money, that he had concealed his true purpose, and that he had used fake property rights certificates to mortgage and release the mortgage in the process of borrowing. Clearly has the purpose of fraud.

3. After borrowing 12 million yuan from Feng Ping, he then borrowed from a bank and borrowed 5 million yuan from Wei Xikui, which is a typical behavior of "demolishing the east and making up for the west." It is to cover up the fact of fraud.

Fourth, after the case was discovered, Hu Weijun had the circumstance of evading debts and absconding in fear of crime. Moreover, the economic situation should not be a gold medal for avoiding the death penalty for crime.

To sum up, Hu Weijun constituted the crime of fraud, the facts are clear, the evidence is sufficient, and the court is requested to adjudicate in accordance with the law. The female prosecutor said.

"The defender may respond to the prosecutor's opinion." The presiding judge said.

"In response to the prosecutor's defense opinions and responses, the defense counsel issued the following defense opinions:

1. There is insufficient basis for finding that defendant Hu Weijun had the purpose of illegal possession

First, the defendant Hu Weijun borrowed a total of 17 million yuan from Feng Ping and Wei Xikui. According to the 2011 and 2012 land valuation reports and real estate mortgage appraisal reports, the total value of the land and real estate of the machining plant reached more than 19.3 million yuan, and the total value of individual real estate was 8.6 million yuan.

At the time of borrowing, the residual value of the company's assets and the value of its personal real estate were basically the same as the amount borrowed, except for the bank mortgage and the arrears to suppliers, which showed that Hu Weijun had the ability to repay.

(Fang Yi knows that the assessment report may be relatively empty and watery, but it is pulled back and forth, and there is not much evidence in favor of Hu Weijun in the evidence presented by both parties in the first trial, so it can only be of any use, but fortunately, the real estate and land do exist, but the value is doubtful)

Second, Hu Weijun used the borrowed funds for legitimate activities such as stock market investment and repayment of bank loans, and the inability to repay the outstanding loans in a timely manner was caused by the operating losses of the stock investment and the failure to complete the loan renewal procedures, and was not caused by personal squandering or other illegal and criminal activities.

Thirdly, Hu Weijun paid the creditor's interest on time. Among them, Feng Ping has received more than 2.8 million yuan in interest, and has obtained more than 2.3 million yuan through civil litigation; Wei Xikui received more than 160,000 yuan in interest, which shows that Hu Weijun has the willingness to actively repay the loan.

In the end, Hu Weijun fled to other places after learning that Wei Xikui had reported the case, and did not flee after obtaining the loan, and his behavior of running away was not for the purpose of illegally taking possession of the loan, which does not meet the expression of the crime of fraud.

II. Hu Weijun did fabricate facts or conceal the truth, but it should be characterized as civil fraud.

The crime of fraud is objectively manifested as fabricating facts or concealing the truth, and the perpetrator commits the fraudulent act of fabricating or concealing facts in order to cause the victim to fall into a misunderstanding, so as to achieve his or her goal of illegally taking possession of other people's property.

In this case, Hu Weijun borrowed 12 million yuan from Feng Ping, and the reason for the loan was that the factory needed funds for production, but in fact, after obtaining the money, he used part of the funds for stock speculation, and he was indeed fraudulent in the reason for the loan and the use of the money.

After obtaining the money, Hu Weijun forged the real estate certificate to mortgage him when Feng Ping asked for a mortgage, which was also fraudulent.

However, Hu Weijun and Feng Ping reached an agreement on borrowing money and issued an IOU to the lender in a timely manner, which met the formal requirements of private lending, and the two parties were essentially in a lending relationship, and there was no misunderstanding between the two parties about the loaned funds.

Hu Weijun invested some of the funds in stocks, but the stock investment was a legal business activity and only a change in business direction. Hu Weijun forged his personal real estate documents as collateral for the loan, but the above-mentioned personal real estate was objectively real, and in the first instance, Hu Weijun's parents-in-law expressed their willingness to use their small property rights to pay off their debts. After the auction of the above-mentioned property, the victim's loan can be partially repaid.

Before the case, Hu Weijun had been steadily repaying the principal and interest, and had no purpose of illegal possession or absconding with the money.

In this case, Hu Weijun asked Wei Xikui to borrow money to repay the bank loan after the first bank loan was about to expire, and claimed that he had applied for a loan of 6 million yuan from the bank and would repay the loan after the loan was completed.

Regarding the application for a bank loan, Zhou Jinku, the manager of the bank's business department, also confirmed to Wei Xikui that what Hu Weijun said was true (evidenced by the police interrogation records), and that the approval procedures for the loan had been completed, and Wei Xikui then transferred the loan to Hu Weijun.

In the process of the above-mentioned loans, although Hu Weijun concealed that one of the three real estate certificates pledged by him for the loan from the first bank was forged by him, the contents, reasons and repayment plans of the loans mentioned by Hu Weijun were all true, so it can be seen that Hu Weijun did not have the purpose of illegally taking possession of Wei Xikui's loans.

In addition, the defender reminded the presiding judge that although one of the three properties used for mortgage was forged and two of the real estate certificates were genuine, the reason for Hu Weijun's forgery was that the original real estate certificate was lost. In other words, although the title deed is fake, the property is real and valid (it has been confirmed in the first instance).

3. The Supreme People's Court promulgated the "Opinions on Giving Full Play to the Role of Adjudication Functions and Effectively Strengthening the Judicial Protection of Property Rights" (issued in 2016, borrowed here in advance), which particularly emphasizes the need to strictly distinguish between economic disputes and criminal offenses, resolutely prevent economic disputes from being treated as crimes, and resolutely prevent the use ......of criminal means to intervene in economic disputes.

To sum up, Hu Weijun's above-mentioned fraudulent acts, whether analyzed from the perspective of the content of the fraud, the degree of the fraud, or the misunderstanding of the defrauded object, have not yet reached the level of the crime of fraud and should not be treated as a crime.

The defender believes that the case has a certain degree of representativeness at the moment, and it will receive better social and legal effects if it is handled as not guilty. The court is requested to adopt the defender's arguments and support the appellant's appeal request.

The defender responded. Fang Yi said.

……

Mr. Tong listened very carefully in the auditorium, he was in his fifties, and he still knew whether Fang Yi was defending with his heart or performing in court.

Regarding Fang Yi's defense opinions expressed today and the verbal war with the prosecutor in court, he felt that the 100,000 yuan was worth it, even if the court of second instance really upheld the original verdict, he would not blame the lawyer, because Fang Yi really tried his best.

"The court is now adjourned for 10 minutes, and the verdict will be pronounced in court after the collegial panel deliberates. Ask the bailiff to take the appellant Hu Weijun out of the courtroom. After the presiding judge finished speaking, he rang the gavel, and the three judges withdrew in turn and went to the back to deliberate.

Fang Yi let out a long breath, endured the hunger in his stomach, took out the mineral water from his shoulders and poured a big sip, then looked at his watch, it was already more than two o'clock in the afternoon, and the trial lasted more than six hours. Look at the two female prosecutors opposite, not much better than themselves, they are starving and waiting for the verdict to be announced.

What should come will always come, and the moment to decide Hu Weijun's fate has come.

All stand and the judges of the collegial panel enter the courtroom in turn.

The presiding judge sounded the gavel: "Now continue the trial, and ask the bailiff to take Hu Weijun to the courtroom." The collegial panel has deliberated and formed a verdict in this case. In response to the opinions of the prosecution and defense, combined with the focus of the dispute in this case, and based on the facts and evidence of this case, this court makes the following comments:

…… Hu Weijun borrowed money from others at high interest rates and issued IOUs, and the borrowed funds were used for legitimate business activities such as stock market investment and repayment of bank loans. There is insufficient basis for determining that Hu Weijun has the purpose of illegal possession, and he did fabricate some facts or conceal the truth, but he did not carry out this act for the purpose of achieving illegal possession, so his conduct does not meet the constitutive elements of the crime of fraud, and should be a civil fraud, and the disputes arising therefrom with creditors should be resolved through civil litigation and should not be criminally prosecuted. Hu Weijun and his defender's argument that it did not constitute the crime of fraud was established and supported.

Accordingly, in accordance with the provisions of Article 225, Paragraph 1 (2), Article 231, and Article 195, Paragraph 1 (2) of the Criminal Procedure Law of the People's Republic of China, the judgment is as follows:

1. Revoke the Municipal Intermediate People's Court's Criminal Judgment No. 90.

2. Appellant Hu Weijun is not guilty.

……”

When the presiding judge read out the sentence "his behavior does not meet the constitutive elements of the crime of fraud", Fang Yi knew that Hu Weijun would not be in prison.

After the presiding judge read out the verdict, Hu Weijun did not show much excitement, the joy on his face flashed, but his eyes were full of tears, he still had huge debts to repay, this was only the first step in the long march of thousands of miles.

"Lawyer Fang, thank you!" Hu Weijun looked at Fang Yi and said sincerely.

When the bailiff opened the handcuffs for Hu Weijun, Mr. Tong in the auditorium came over: "Old Hu, congratulations." ”

Hu Weijun turned his head to look at Mr. Tong, didn't say anything, just nodded heavily.

(End of chapter)