First of all, financial crimes are crimes that seriously undermine the order of the socialist market economy. In the trial of financial crimes, we should continue to implement the policy of severely punishing serious economic criminals according to law. The revised criminal law and the relevant decisions of the National People's Congress Standing Committee (NPCSC) have stipulated more severe penalties for financial crimes that are seriously harmful, which embodies the spirit of severely punishing financial crimes and provides a strong legal basis for the people's courts to try various financial crimes. Courts at all levels should resolutely implement the spirit of legislation and punish criminal units and individuals who undermine the order of financial management and financial fraud in strict accordance with the law.
Second, further strengthen the trial of financial crime cases and promote the perfection of the financial system. Courts at all levels should earnestly strengthen the organization and leadership over the trial of financial crimes, adjust and enrich the trial power, and ensure that criminal cases such as disrupting financial management order and financial fraud submitted to the court for trial are concluded in time according to law. Criminal cases of corruption, misappropriation, misappropriation and bribery in the financial field, such as robbery and theft against financial institutions, should also be tried in time according to law and sentenced in time. For financial crimes uncovered in various special struggles, we should concentrate our efforts on hearing them quickly and severely punish them according to law. Typical cases can be pronounced publicly in the place and unit where the case occurred, and widely publicized through various news media to form a powerful shock to financial crimes, educate the broad masses of cadres and people to enhance the concept of financial legal system, safeguard financial security, and promote the continuous improvement and perfection of the financial system.
Third, we should strengthen study and training, and constantly improve the level of trial. The trial of financial crime cases is a very policy-oriented work, involving a lot of financial expertise. Courts at all levels should attach importance to the professional study and training of criminal judges, take flexible forms such as inviting in and going out, and organize criminal judges to seriously study financial laws such as banking law, securities law, negotiable instrument law, insurance law, company law, guarantee law, accounting law, audit law and other related laws, learn relevant financial policies and regulations and some basic business knowledge, ensure correct understanding and application of criminal law, and do a good job in the trial of financial crime cases.
Fourth, we should strengthen investigation and research in combination with judicial work. Financial crime cases are complicated, there are many new situations and problems, the trial is difficult and the situation is grim, so it is particularly necessary to strengthen investigation and research. Courts at all levels should conduct targeted investigations and studies in combination with financial crime trials. For the loopholes and hidden dangers in the management system found in handling cases, judicial suggestions should be put forward in time. The Supreme Court and the High Court should further strengthen the guidance to the lower courts, study and solve the new problems in the application of the law in a timely manner, make it clear through the formulation of judicial interpretations, and report it to the Supreme Court step by step in time for study.
Second, the forum focused on some relevant applicable legal issues encountered by the people's courts in the trial of financial crimes. Comrades attending the meeting held that the original judicial interpretation that does not conflict with the current criminal law can still be implemented with reference to the specific applicable legal problems encountered in the implementation of the revised criminal law before the corresponding new judicial interpretation of the Supreme Court is promulgated. There are no specific provisions or unclear provisions in law and judicial interpretation, and there are some problems to be solved urgently in judicial practice. Comrades attending the meeting conducted in-depth discussions based on trial practice and reached a consensus:
(A) on the issue of unit crime
According to the provisions of the Criminal Law and the Interpretation of the Supreme People's Court on Relevant Issues Concerning the Specific Application of Law in the Trial of Unit Crimes, if a crime is committed in the name of a unit, the illegal gains shall be owned by the unit, which is a unit crime. 1. Handling of criminal acts of branches or internal organs and departments of this unit. If a crime is committed in the name of a branch, internal organization or department of a unit, and the illegal income is also owned by the branch, internal organization or department, it shall be deemed as a unit crime. Just because a branch or internal organization or department of a unit has no property to execute a fine, it should not be regarded as a unit crime, but should be punished as an individual crime: 2. Identification of the directly responsible person in charge and other directly responsible personnel: the directly responsible person in charge is the person who plays the role of decision, approval, instigation, connivance and command in the unit crime, generally the person in charge of the unit, including the legal representative. Other directly responsible personnel are those who commit crimes and play an important role in unit crimes, which can be both managers and employees of the unit, including those who are employed or employed. It should be noted that in the unit crime, it is generally not appropriate to investigate the criminal responsibility of the person assigned or ordered by the unit leader to participate in the implementation of a certain criminal act as the directly responsible person. The persons directly in charge and other persons directly responsible for a unit crime shall be punished according to their positions, functions and circumstances of the crime. In a case, the relationship between the person in charge and the person directly responsible is not taken for granted, and in some cases, the relationship between the person in charge and the person directly responsible is not obvious, so there is no need to distinguish between the principal and the accessory. However, under specific circumstances, the principal and the accessory can be distinguished, but the principal and the accessory cannot be distinguished. If the sentencing cannot be adapted to the crime and punishment within the same legal punishment level and range, the principal offender and the accessory shall be distinguished and punished according to law. 3. Handling of unit crime cases that are not prosecuted as unit crimes. If the procuratorial organ only prosecutes a case that should be regarded as a unit crime as a natural person crime, the people's court shall promptly consult with the procuratorial organ and suggest that the procuratorial organ initiate a supplementary prosecution against the criminal unit. If the procuratorial organ fails to make a supplementary prosecution, the people's court shall still try the case according to law, and investigate the criminal responsibility of the defendant's natural person, the directly responsible person in charge or other directly responsible personnel in the unit crime according to law according to the suspected criminal facts, evidence and facts found in the trial, and refer to the relevant provisions of the Specific Provisions on Investigating the Directly Responsible Person in Charge and Other Directly Responsible Personnel in the Unit Crime. 4. Handling of unit crimes. Where two or more units intentionally commit a crime with * * * *, the criminal unit shall be determined according to the position and role of each unit in the crime of * * * *.
(2) Crime of disturbing the order of financial management
1. Handling cases of illegal financial activities of non-financial institutions1July, 998 13, the State Council promulgated the Measures for Banning Illegal Financial Institutions and Illegal Financial Business Activities. 1August 1998 1 1, the general office of the State Council forwarded the implementation plan of China people's bank to rectify fund-raising, set up financial institutions and run financial business in disorder, and made provisions on policies and measures to rectify the financial "three chaos" work. According to the provisions of the Implementation Plan for Rectifying the "Three Disruptions" in Finance, without the approval of the People's Bank of China, local governments or relevant departments set up institutions and organizations that engage in or engage in financial business in disguised form without authorization. Those who continue to engage in illegal financial business activities beyond the time limit stipulated in the implementation plan shall be banned according to law; If the circumstances are serious enough to constitute a crime, criminal responsibility shall be investigated according to law. Therefore, as long as the above-mentioned institutions and organizations engaged in illegal financial activities stop illegal financial business activities within the time limit stipulated in the implementation plan, the relevant units and responsible personnel should not be treated as the crime of setting up financial institutions without authorization; Generally speaking, the illegal financial activities they engaged in before are not treated as crimes; Personal crimes committed by personnel of these institutions and organizations by taking advantage of their positions, such as embezzlement, misappropriation of public funds, misappropriation of funds, etc. , should be convicted and punished according to the specific circumstances.
2. About the crime of counterfeit money
Identification of counterfeit money crime. Counterfeit money crime is a kind of crime that seriously undermines the order of financial management. As long as there is evidence to prove that the perpetrator has carried out the act of selling, buying, transporting and using counterfeit money, and the amount is large, it constitutes a crime. Whoever forges money, as long as it is forged, regardless of whether all the printing processes have been completed, constitutes the crime of counterfeiting money; For those who have not yet manufactured finished products and cannot calculate the denomination of counterfeit money, or who manufacture or sell samples used for counterfeiting money, the amount of the crime will not be determined and the punishment will be decided according to the circumstances of the crime. Knowing that it is counterfeit money, the amount is large, and according to the existing evidence, the perpetrator cannot be identified as committing other counterfeit money crimes, and he shall be convicted and punished for holding counterfeit money; If there is evidence to prove that the counterfeit money it holds has constituted other counterfeit money crimes, it shall be convicted and punished for other counterfeit money crimes. Determination of the crime of counterfeiting currency. In the case of counterfeit money crimes, criminals should grasp the following principles when determining the charges: (1) If the same counterfeit money is used as an optional charge according to the law, the charges should be determined in parallel according to several acts committed by the perpetrator and the order of related charges stipulated in the criminal law, and the amount should not be accumulated, and several crimes should not be punished simultaneously; (2) According to the law, if different counterfeit money is used as an optional crime, the charges shall be determined side by side. (3) For the same counterfeit currency, several criminal acts that are not stipulated as selective crimes in the Criminal Law are committed, and a felony is chosen for heavier punishment. Whoever uses counterfeit money after buying counterfeit money shall be convicted and given a heavier punishment for the crime of counterfeiting money or buying counterfeit money. (4) For different counterfeit money, several criminal acts that are not stipulated as selective crimes in the Criminal Law were committed, and they were convicted respectively and punished for several crimes. Disposal of the seized part of selling counterfeit money. Those who are caught selling counterfeit money shall be deemed as the crime amount of selling counterfeit money. Besides the counterfeit money seized at the scene, the counterfeit money seized at the residence of the trader or other hiding places outside the scene shall also be deemed as the crime amount of selling counterfeit money. However, there is evidence that the latter is the perpetrator of other counterfeit money crimes. Handling of manufacturing or selling fake NT dollars. Whoever forges Taiwan dollars shall be convicted and punished for the crime of counterfeiting currency; Whoever sells counterfeit Taiwan dollars shall be convicted and punished for selling counterfeit money. 3. Identification and punishment of illegal borrowing by using off-balance-sheet customer funds. For the purpose of making profits, banks or other financial institutions and their staff members use customers' funds to illegally borrow off-balance-sheet customers' funds, and take the way of absorbing customers' funds without recording them, thus causing heavy losses, which constitutes the crime of illegally borrowing off-balance-sheet customers' funds. For the purpose of making profits, it means that financial institutions and their staff make profits for their own units or individuals. Without this purpose, it does not constitute a crime. "Profit-making" here generally refers to illegal income, such as interest and price difference. , resulting from illegal borrowing of customer funds outside the account. The kickbacks and service fees paid by users to obtain loans should be treated separately according to the specific circumstances: banks or other financial institutions illegally borrow and issue loans with off-balance-sheet customers' funds, and the kickbacks and service fees collected should be regarded as "profit-making"; Staff of banks or other financial institutions take advantage of their positions to illegally borrow and issue loans with off-balance-sheet customers' funds, and collect kickbacks and handling fees. If the amount is small, it shall be punished as "profit"; Employees of banks or other financial institutions who take kickbacks and handling fees paid by payers to their own units as their own, and the amount is relatively large, shall be convicted and punished for corruption; Staff of banks or other financial institutions take advantage of their positions to illegally borrow and issue loans with off-balance-sheet customers' funds, ask users for money, or illegally accept other money, or collect kickbacks and handling fees. If the amount is relatively large, he shall be convicted and punished for accepting bribes. Absorbing customers' funds is not recorded, that is, it is not recorded in the legal deposit account of financial institutions, avoiding national financial supervision. Whether it is credited to an account established outside the statutory account does not affect the establishment of this crime. When trying cases of illegal borrowing of off-balance-sheet customers' funds by banks or other financial institutions and their staff, we should pay attention to distinguish the illegal borrowing of funds from the crime of misappropriating public funds and funds. Taking advantage of his position, misappropriating the customer's funds that have been transferred to the legal deposit account of a financial institution for personal use, or withdrawing the customer's funds without being transferred, but the customer also thinks that the money has been deposited in the bank when a bank deposit slip is issued to the customer, but the money has been lent to others by the actor in his own name, it shall be considered as the crime of misappropriation of public funds or the crime of misappropriation of funds. 4. Determination of the Amount and Circumstances of Crimes Related to Disrupting the Order of Financial Management the Supreme People's Court has successively promulgated the Interpretation of Several Issues Concerning the Specific Application of Laws in the Trial of Counterfeiting Currency Cases and the Interpretation of Several Issues Concerning the Specific Application of Laws in the Trial of Smuggling Criminal Cases, clearly stipulating the conviction and punishment standards for crimes such as counterfeiting currency, smuggling, selling, buying and transporting counterfeit currency and related applicable legal issues. In order to correctly implement the criminal law, before other relevant judicial interpretations are promulgated, we can refer to the following standards to grasp the amount and circumstances of crimes that undermine financial management order other than counterfeit money crimes: the crime of illegally absorbing public deposits. Illegal absorption or disguised absorption of public deposits should be judged from the amount and scope of illegal absorption of public deposits and the losses caused to depositors. According to judicial practice, anyone who has one of the following circumstances can be convicted and punished for the crime of illegally absorbing public deposits: (1) individuals illegally absorb or disguise public deposits of more than 200,000 yuan, and units illegally absorb or disguise public deposits of more than 1 10,000 yuan; (2) Individuals illegally or disguised to absorb more than 30 public deposits, and units illegally or disguised to absorb more than 150 public deposits; (3) Individuals illegally absorb or conceal public deposits, causing depositors to lose more than 654.38+10,000 yuan, and units illegally absorb or conceal public deposits, causing depositors to lose more than 500,000 yuan, or causing other serious consequences: individuals illegally absorb or conceal public deposits of more than 1 10,000 yuan, and units illegally absorb or conceal public deposits of more than 5 million yuan, which can be considered as "a huge amount". On the crime of illegally issuing loans to related parties. Staff of banks or other financial institutions who, in violation of laws and administrative regulations, issue credit loans or guarantee loans to related parties on terms superior to similar loans of other borrowers, resulting in losses of more than1-300,000 yuan, can be deemed as "causing significant losses"; If the loss is more than 500- 1 10,000 yuan, it can be considered as "causing significant losses". On the crime of illegally issuing loans. Staff of banks or other financial institutions who, in violation of laws and administrative regulations, extend loans to people other than related parties, resulting in losses of more than 5 million yuan-/kloc-0 million yuan, can be regarded as "causing significant losses"; Causing losses of more than 3-5 million yuan, it can be considered as "causing particularly heavy losses". On the crime of illegally using off-balance-sheet customers' funds to borrow and issue loans. For the staff of banks or other financial institutions, for the purpose of making profits, by absorbing customers' funds without recording them, illegally borrowing and issuing loans with funds, resulting in losses of more than 500- 1 10,000 yuan, it can be considered as "causing significant losses". ; Causing losses of more than 3-5 million yuan, it can be considered as "causing particularly heavy losses". For the amount of crimes caused by illegal loans and illegal borrowing of off-balance-sheet customers' funds, it can be grasped by 2 to 4 times the amount of personal crimes. Due to the unbalanced economic development in various regions, the higher people's courts of all provinces, autonomous regions and municipalities directly under the Central Government may refer to the above-mentioned amount standards or ranges and determine specific standards in their respective regions in light of local specific conditions.
(3) About the crime of financial fraud
1. Identification of the purpose of illegal possession in financial fraud. Financial fraud crimes are all crimes aimed at illegal possession. In judicial practice, in order to determine whether there is illegal possession, we should adhere to the principle of subjective and objective consistency, not only to avoid objective liability based solely on the loss results, but also to analyze the case according to the specific circumstances. According to judicial practice, the actor illegally obtained funds by fraudulent means, resulting in a large amount of funds that cannot be returned, and in any of the following circumstances, it can be considered as having the purpose of illegal possession: (1) defrauding a large amount of funds knowing that it cannot be returned; (2) absconding after illegally obtaining funds; (3) defrauding funds at will; (four) the use of fraudulent funds for illegal and criminal activities; (5) Evading, transferring funds or hiding property to avoid returning funds; (6) Concealing or destroying accounts, or carrying out false bankruptcy or false bankruptcy to avoid withdrawing funds; (seven) other illegal possession of funds and refused to return. However, in dealing with specific cases, if there is evidence that the perpetrator does not have the purpose of illegal possession, it cannot be punished as financial fraud just because the property cannot be returned. 2. Identification and treatment of loan fraud. Loan fraud is one of the most common financial fraud crimes at present. We should pay attention to the following two problems when trying the crime of loan fraud: First, the unit cannot constitute the crime of loan fraud. According to the provisions of Articles 30 and 193 of the Criminal Law, the unit does not constitute the crime of loan fraud. For the loan fraud committed by the unit, it cannot be convicted and punished for the crime of loan fraud, nor can the directly responsible person in charge and other directly responsible personnel be investigated for criminal responsibility. However, in judicial practice, if a unit obviously deceives banks or other financial institutions by signing and performing loan contracts for the purpose of illegal possession, which meets the constitutive requirements of the crime of contract fraud stipulated in Article 224 of the Criminal Law, it shall be convicted and punished for the crime of contract fraud. Second, we must strictly distinguish between loan fraud and loan disputes. After legally obtaining the loan, if the loan is not used according to the prescribed purpose and the loan is not returned at maturity, it cannot be convicted and punished for loan fraud; There is indeed evidence to prove that the actor did not have the purpose of illegal possession, obtained the loan by deception because he did not have the loan conditions, and was able to fulfill the repayment obligation at the time of committing the crime, or could not repay the loan at the time of committing the crime due to reasons beyond his will, such as mismanagement, fraud, market risk, etc. And should not be convicted and punished for loan fraud. 3. Identification and treatment of the crime of fund-raising fraud: the crime of fund-raising fraud, the crime of fraudulently issuing stocks and bonds, and the crime of illegally absorbing public deposits are objectively manifested as illegal fund-raising from the public. The key to the difference lies in whether the actor has the purpose of illegal possession. Illegal fund-raising for the purpose of illegal possession, or intentional illegal possession of other people's funds in the process of illegal fund-raising, constitute the crime of fund-raising fraud. However, when dealing with specific cases, we should pay attention to the following two points: first, we cannot infer that the perpetrator has the purpose of illegal possession because a large number of illegal fund-raising funds cannot be returned; Second, if the actor uses most of the funds for investment or production and business activities, and uses a small amount of funds for personal consumption or extravagance, it should not be considered as having the purpose of illegal possession. 4. The amount standard of conviction and sentencing of financial fraud crime and the calculation of crime amount. The amount of financial fraud is not only an important criterion for conviction, but also the main basis for sentencing. Before there is a new judicial interpretation, it can be implemented with reference to the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Fraud Cases (1996). When determining the amount of financial fraud crime, it should be calculated by the amount actually defrauded by the actor. Agency fees, handling fees, kickbacks, etc. Paid by the actor, used for financial fraud, or used for bribery, gifts, etc. , should be included in the amount of financial fraud. However, the amount returned before the incident should be deducted.
(4) the application of the death penalty
The criminal law stipulates the death penalty for financial fraud, which is particularly harmful. People's courts should make good use of this legal weapon to effectively crack down on financial fraud. Criminals who commit extremely serious crimes and should be sentenced to death according to law must be resolutely sentenced to death. However, it should be emphasized that the huge amount of financial fraud is not the only criterion for the death penalty. Only criminals who swindle "a huge amount and cause particularly heavy losses to the interests of the country and the people" can choose to apply the death penalty according to law. If the amount of crime is especially huge, but the loss is not great after recovery or restitution, the death penalty should not be sentenced to immediate execution; Generally speaking, the death penalty should not be imposed on a person who has a statutory lighter or mitigated punishment.
(five) the application of property punishment
Financial crimes are profit-seeking crimes. To punish and prevent such crimes, we should pay attention to punishing criminals economically. The criminal law stipulates the property penalty for financial crimes, and the people's court shall sentence them strictly according to law. The amount of the fine shall be determined within the range prescribed by law according to the circumstances of the defendant's crime. In principle, a defendant who is given a lighter, mitigated or exempted punishment should also be given a lighter, mitigated or exempted fine. Whether the directly responsible person in charge and other directly responsible personnel in unit financial crimes apply fine punishment should be based on the specific provisions of criminal law. If there is a fine in the specific provisions of the Criminal Law, it is stipulated that the directly responsible person in charge and other directly responsible personnel in a unit crime shall be punished in accordance with the provisions of natural person crime, and a fine shall be imposed, but the amount of fines imposed on the directly responsible person in charge and other directly responsible personnel shall be lower than that imposed on the unit; The specific provisions of the Criminal Law clearly stipulate that the person in charge who is directly responsible for the unit crime and other persons who are directly responsible can only be sentenced to freedom, but can't be fined.