"I definitely don't agree with the use of violence by employees, I can persuade and educate, I will never allow my subordinates to use violence, but I can't stand the unpaid ones, hide around without paying back, and threaten our employees to collect money, so it is inevitable that there will be one or two legitimate defenses. Nor is it all up to us. Hu Meng said with a beaten expression.

Persuade education! How can such a high-level word feel so wrong when it comes out of Hu Meng's mouth! Fang Yi wanted to laugh, but it was not suitable in the courtroom, so he had to hold back.

The prosecutor was so angry that he couldn't wait to go up and kick him twice, but look at his size, forget it, don't kick people and hurt his feet again.

"You said that the debtor threatened your employees to collect money, how did you threaten it?" The inspector asked, pressing the fire.

"Our employees went to the debtor to collect the money, but the debtor didn't pay the money and didn't say anything, and he still lay on the window and shouted to force him again, so he jumped off the building. Do you think this is a rogue threat to our employees? How could we get used to him. Hu Meng said confidently.

Fang Yi can be regarded as knowledgeable, he doesn't feel embarrassed at all when such shameless words come out of his mouth, and he is still confident.

"Presiding Judge, we're done." The inspector was speechless and ended his questioning. The presiding judge's face turned colder than it had just been.

"Does the defendant's advocate need to ask questions of the defendant?" The presiding judge asked.

"Questions." Ma Banshan said: "Defendant Hu Meng, in the process of lending, under what circumstances will the debtor default?" ”

"The vast majority of debtors are unemployed and defaulted on their debts, and there are also a few who have disappeared and the loans have become dead debts." Hu Meng said.

"Has there ever been a problem with the APP platform, or you have deliberately breached the contract?" Ma Banshan asked.

"No, we run the company to make a profit and earn the agreed interest on the loan, and if there is a problem with our platform, the debtor will refuse to repay and find us trouble. We operate with integrity. Hu Meng said.

The loan shark actually said that he was operating in good faith, well, you are very honest, at least more honest than routine loans. Fang Yi had a capital "service" in his heart.

"Presiding Judge, I'm done." Ma Banshan didn't dare to ask again, so Hu Meng's broken mouth was easy to cause problems if he asked too much.

……

"The facts of this case have been investigated, the court investigation has been completed, and the court arguments are now begining. Court debates revolve around disputed facts that have not been certified by the court and how the law should be applied based on the facts.

The prosecutor will speak first. The presiding judge said.

"Presiding Judge and Judge: We believe that the defendant in this case set a trap to obtain the address book, charged high service fees and extension fees, and then demanded it in the form of picking quarrels and provoking troubles after the expiration date, and every step was a trap, and his overall behavior pattern has clearly exceeded the scope of private lending, and the essence is that the above-mentioned "routines" cooperate with each other to falsely increase the amount of loans, maliciously increase the amount of borrowing, and achieve the purpose of illegally taking possession of other people's property, and should be convicted and punished as the crime of fraud. Complete! The prosecutor's tone was cold, and he wanted to freeze to death.

"The defendant defended himself." Although the presiding judge didn't want Hu Meng to speak, the procedure had to be complete, so he had to do so.

"I don't agree with them, the relationship between our company and the borrower is a private loan, but the interest rate is high, and there is a little handling fee......," Hu Meng said, and the presiding judge directly interrupted his speech when he saw that he had almost said it.

"Defendant Hu Meng's defender expressed his defense opinions." The presiding judge said impatiently.

Ma Banshan gave Fang Yi a look, which means it's time for you to play!

"Presiding Judge and Judge: The defender believes that the defendant in this case, Hu Meng, did not defraud others of their property by fabricating facts or concealing the truth, and does not meet the constitutive elements of the crime of fraud. Here's why:

1. Defendant Hu Meng did not fabricate facts or conceal the truth to defraud the borrower of money

First of all, the defendant in this case did not induce or coerce the borrower to borrow money through false publicity or other means in the course of operating the company. According to the case file materials, both the borrower and the platform staff stated that the platform only used promotional terms such as "no collateral, no credit investigation, and fast lending", and the platform had clearly informed the borrower on the loan interface that the borrower included the loan amount, service fee, loan term, due repayment amount and overdue fee, etc., and before the loan, the borrower could choose to accept or give up the loan after two confirmation procedures of "loan agreement confirmation" and "loan amount confirmation".

Second, this case did not form a false creditor-debtor relationship by means of "cutting interest". The trick in the "routine loan" is to design a routine under the guise of borrowing, create false traces of payment, and collect fees for various purposes by deceptive means, and finally achieve the purpose of illegally taking possession of the borrower's property.

Returning to this case, the defendant did not create false traces of payment when borrowing money during the operation of the company, nor did he deliberately create a breach of contract, arbitrarily determine the breach of contract, or maliciously build up debts by other means to form a false creditor-debtor relationship. The defender believes that because the converted interest of 620 yuan of service fee charged is extremely high, it cannot be determined that he has a "head cutting interest" routine.

2. The defendant in this case did not subjectively have the purpose of illegal possession

'Routine lending' is essentially a fraud carried out under the guise of lending, and the ultimate purpose of the lender is not to recover the principal and obtain interest, but to illegally take possession of the borrower's property far exceeding the principal and interest.

In this case, the defendant lent the same amount as the borrowed amount, and what he pursued was that the borrower paid ultra-high interest, and when the loan was due, he took the initiative to contact the borrower to request repayment of principal and interest, and what he wanted was only ultra-high interest that was not protected by law.

In reality, the interest on most private loans is higher than that of bank loans, and it is much more difficult to collect than banks and other financial institutions.

In this case, the interest charged by the defendant is indeed much beyond the scope of legal protection, but it cannot be determined that the high interest rate is a "routine". The target customers (borrowers) of the companies operated by the defendants are basically a group with extremely poor credit reporting, and the defendants also have to bear the risk of total loss of principal when they borrow money, and the evidence provided by the prosecutor can also prove that the platform has a high bad debt rate (more than 15%), because the company operated by the defendant has no substantial constraints on borrowers at all.

The defendant in this case, as the actual controller of the company, based on the characteristics of the industry and the risk of choosing the corresponding rate of return, lent money for compensation under the conditions approved by the borrower, and its purpose was not to illegally take possession of other people's property.

3. The borrower is aware of the high interest rate and does not fall into a misunderstanding

According to the provisions of the Criminal Law on the crime of fraud, it can be seen that the core element of the crime of fraud is that the borrower disposes of the property after falling into a misunderstanding due to deception.

Therefore, the defender believes that this case should not only examine whether the defendant subjectively has the "purpose of illegal possession", but also whether the borrower has "fallen into a misunderstanding and delivered the property".

"Routine loans" not only require that there are "routines" in the lending process, but also that "routines" are the key means for the defendant to obtain property.

In practice, the common criminal methods and steps of "routine loans" include but are not limited to the following situations:

1. Create the illusion of private lending. Criminal suspects and defendants often use the names of "microfinance companies", "investment companies", "consulting companies", "guarantee companies", "online lending platforms", etc., to attract victims to borrow money with low interest rates, no collateral, no guarantees, quick loans, etc., and then use false reasons such as "security deposits" and "industry rules" to induce victims to sign "loan" agreements or related agreements with inflated amounts based on misunderstandings. Some criminal suspects and defendants will also force the other party to sign a "loan" agreement or related agreement with an inflated amount on the grounds that the victim has defaulted on a previous loan.

2. Fabricating false payment facts such as fund account flows. The criminal suspect or defendant transferred funds to the victim's account in accordance with the inflated amount of the "loan" agreement, creating traces of bank statements that had already delivered all the loans to the victim, and then used various means to recover all or part of the funds, and the victim did not actually obtain or fully obtained the money shown on the "loan" agreement or bank statement.

3. Intentionally creating a breach of contract or arbitrarily determining a breach of contract. Criminal suspects and defendants will often deliberately cause the victim to breach the contract by setting up default traps or creating obstacles to repayment, or force the victim to repay false debts by arbitrarily determining the breach of contract.

4. Maliciously inflating the amount of borrowing. When the victim is unable to repay, some criminal suspects or defendants will arrange for their company or designated affiliated companies or affiliated persons to repay the "loan" for the victim, and then sign an inflated "loan" agreement or related agreement with the victim with a larger amount, and continue to increase the "debt" through this method of "transferring bills to settle accounts" and "repaying loans with loans".

5. Soft and hard "debt collection". In cases where the victim fails to repay the inflated "loan", the criminal suspect or defendant uses litigation, arbitration, notarization, or the use of violence, threats, or other means to demand a "debt" from the victim or a person with a specific relationship with the victim.

In this case, the materials on record show that most of the defendant's borrowers clearly stated that they accepted the above-mentioned loan costs because they needed the loan urgently and the defendant disbursed the loan quickly, and some of the borrowers had a borrowing history on other similar platforms or borrowed multiple times on this platform, and some even claimed that they were not ready to return the borrowed money at all.

Moreover, if the actual loan amount and the amount of principal and interest repayment do not exceed the prior agreement between the borrower and the borrower, it is up to the borrower to decide whether to extend, overdue or repay the loan.

It is impossible for the borrower to fall into a misunderstanding, as they have a clear understanding of the platform's borrowing mode and borrowing consequences, and the defendant has clearly informed the borrower of the loan principal, loan service fee, loan term, etc., at the time of lending, and in fact the loan principal displayed by the platform is completely consistent with the amount received, so the above behavior will not cause the borrower to fall into a misunderstanding.

To sum up, the fact that the borrower in this case paid money to the defendant even though he knew the true amount of the loan between the two parties and the ultra-high interest rate obviously did not belong to "delivering property due to misunderstanding", and if it was punished as the crime of fraud, it would undoubtedly violate the principle of legality.

The defense opinion is over! After Fang Yi finished speaking, he put down his defense.

Hu Meng in the dock was dumbfounded, blinking his eyes and looking at Fang Yi, he didn't know where Ma Banshan got this middle-aged male lawyer from, although he couldn't quite understand the professional words that the other party said, but he felt that what this lawyer said seemed to be very beneficial to him, and he could spray better than Hu Banshan!

Although the two procurators on the opposite side felt that Fang Yi's defense opinions were different from what they thought, they seemed to have some reason, but they couldn't admit it, and they definitely couldn't admit it.

The presiding judge still had a cold face, listening and thinking.

Ma Banshan had discussed the case with Fang Yi three or four times before, and he had read Fang Yi's defense opinions before, and felt that the writing was very down-to-earth, at least more comprehensive than he thought.

……

"In the case of the defendant Hu Meng, who was prosecuted by the district procuratorate on suspicion of fraud, the collegial panel held a court trial, conducted a court investigation and court debate, heard the prosecutor's accusations, the defendant's opinions, the defendant's justifications, statements, and the defender's defense opinions, and the court trial was concluded. The court is now adjourned for 10 minutes, and the collegial panel will announce the verdict after deliberation. Bring the defendant out of the courtroom. The presiding judge rang the gavel and got up and exited the courtroom.

After the adjournment, Fang Yi and Ma Banshan did not leave the courtroom, and Ma Banshan handed Fang Yi a bottle of mineral water: "Lawyer Fang, how do you think the judge will judge this case?" ”

"It's hard to say, but I think the judge seems to have already decided." Fang Yi said.

"Oh? How? Ma Banshan said in a low voice.

"One of the three judges of the collegial panel did not seem interested in this case, and should have been pulled from another case to make up the numbers. The other judge just casually flipped through the case file, and he should have come to make up the numbers. The presiding judge sitting in the middle seemed to be a little careless, completely following the procedure, in fact, he should have made a decision in his heart, otherwise he wouldn't be so ......" Fang Yi said.

Fang Yi's words were speechless.

More than half an hour later, Fang Yi and Ma Banshan walked out of the courthouse with a relaxed face. The court finally ruled that Hu Meng did not commit fraud and was acquitted. Mr. Hu did not come out with the two lawyers because he still had some formalities to go through.

(According to the "Opinions on Several Issues Concerning the Handling of Criminal Cases of 'Routine Loans'" jointly issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice (implemented on April 9, 2019), "routine loans" refer to inducing or forcing victims to sign "loans" or disguised "loans", "mortgages", "guarantees" and other related agreements for the purpose of illegal possession and in the name of private lending. A general term for illegal and criminal activities related to the formation of false creditor's rights and debts by means such as destroying evidence of repayment, and illegally taking possession of the victim's property through litigation, arbitration, notarization, or the use of violence, threats, or other means. ）

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