How Do I Avoid Money Order Fraud?

Bill fraud (Article 194 (1) of the Criminal Law) refers to the use of bills that are known to be forged, altered, or invalidated for the purpose of illegal possession, or to use other people's bills, or to issue short checks, to issue no funds Bills of exchange, promissory notes, or fabrication of other bills, using financial bills to carry out fraudulent activities, defrauding large amounts of property. The crime of bill fraud must be subjectively constituted with the purpose of illegal possession. If an actor uses a financial instrument for negligence, it does not constitute a crime if he does not know that it is a forged, altered or voided financial instrument, mistakenly signing a short check, or mistakenly recording the matter of the instrument due to negligence. According to Article 200 of the Criminal Law, units can also become the subject of bill fraud.

Bill fraud

The crime of bill fraud refers to the act of using financial bills to carry out fraudulent activities for the purpose of illegal possession and defrauding a large amount of property. ^[1]

The bill is issued by the invoicer in accordance with the law, and it is agreed that oneself or entrusting others or a financial institution to pay the beneficiary or holder unconditionally to pay a certain amount of marketable securities on the due date or the date on which the ticket is seen. According to the Bill Law, bills include bills of exchange, promissory notes, and checks. Because the bill itself represents a certain amount, and the obligor of the bill pays the obligation to pay unconditionally, the bill often becomes the target of criminal fraud. In order to crack down on criminal activities that use bills for fraud and to ensure the normal circulation of bills, the criminal law provides for the crime of bill fraud. According to the provisions of the criminal law, the following conditions must be met to constitute the crime of fraud of financial instruments: the actor has subjectively and deliberately used financial instruments to conduct fraudulent criminal activities and profit from it; the actor must implement the fraud of financial instruments; the actor The amount of property defrauded is large.

Because there are many types of bills and the methods of bill fraud crimes are more complicated, Article 194 of the Criminal Law clearly lists the behaviors of bill fraud crimes. According to the regulations, the bill fraud behaviors mainly include the following methods: :

1. Knowingly used forged or altered bills of exchange, promissory notes, checks

Regarding this act, whether the perpetrator knows that the bill of exchange, promissory note, or check used is forged or altered is an important boundary to distinguish between sin and non-sin. Of course, to judge whether the perpetrator is knowledgeable subjectively, it is not only based on his personal confession. It is important to comprehensively analyze all aspects of the evidence to reach a conclusion on the basis of a comprehensive analysis of the entire case. In fact, the perpetrator must use behavior in order to constitute a crime. If he knows that a counterfeit or altered bill of exchange, promissory note, or check is not used, it does not constitute a crime.

2. Knownly used as a draft, cashier's check, or check

Whether an actor knows that the draft, promissory note, or check used by him is a voided bill is an important boundary to distinguish whether his behavior constitutes a crime. "Abolition" here refers to the bills that cannot be used according to laws and relevant regulations. It includes both the "expired" bills mentioned in the "Bill Law" and invalid and invalidated bills.

3. Counterfeit money orders, cashier's checks, checks

"Fake use" mentioned here refers to the act of the actor in the name of a legitimate bearer to dominate, use, or transfer the bills of others who do not have the right to control. It usually manifests itself in the following situations: the actor obtained the bill by illegal means, such as fraud, theft, or coercion; used the bill in the name of the agent without the agency right or the agent exceeded the agency authority; and entrusted others to hold Or use the bills lost by others for the purpose of defrauding property.

4. Issue cheques or cheques that do not correspond to the seals reserved to cheat property

The Bill Law stipulates clear conditions for opening a checking deposit account: the applicant must use his real name and submit legal documents proving his identity; the applicant must deposit a certain amount of funds and have a reliable credit; the applicant must reserve Signature and seal of its real name. In addition, it is clearly stipulated that the issuance of short checks is prohibited; the issuer of a check may not issue a check that does not match the signature pattern or seal of its original name. In the current practice, it is more complicated to issue a short check or a check that does not comply with the seal. However, in order to constitute the crime of financial bill fraud, the actor must subjectively deliberately defraud property. If the unit lacks a sound check management system and the management of the transfer system is inadequate, the check with a seal is handed over to the purchaser, who does not know how much money the company has on the bank account. Goods, resulting in the occurrence of short checks, or because some banks and financial institutions have delayed the processing of settlement, transfer, remittance and other services, "pressing the order" and "pressing the bill", so that the amount that should have been received within the normal time limit The delay caused the unit to mistakenly think that the money had arrived and issued a short check, etc. Because the actor did not intentionally use the bill to defraud property, it did not constitute a crime.

Special prevention measures

Cracking down and punishing crimes is one of the most effective means to curb crimes. This is especially true when crime is rampant. The special preventive measure is to punish and educate offenders, and to warn non-offenders who have a tendency to commit crimes, so as to prevent crimes and reduce crimes.

1. Improving the ability of the judiciary to detect, prosecute and adjudicate financial fraud crimes. Financial fraud is a new type of crime, and it is an intellectual and technical crime. Many criminals use high technology to commit crimes. The reconnaissance, prosecution and judicial organs must correspondingly improve their ability to detect, prosecute and adjudicate financial fraud crimes, and strengthen relevant business training to expose and punish crimes.

2. Establish a financial fraud reporting system. The crime of financial fraud is concealed with few traces, and it is not easy for the judicial authorities to detect it. Establishing a reporting system can help judicial authorities obtain clues, discover the source of cases, capture offenders, and completely punish financial fraud.

3. Strict law enforcement. The crime of financial fraud is huge. Only by cracking down severely can we deter criminals and exert the general and special preventive effects of punishment. To this end, we must resolutely correct such illegal phenomena as representing the law by emotion, representing the law by power, and representing the penalty by punishment in the work of reconnaissance, prosecution, and trial. Strengthen judicial supervision to eliminate judicial corruption and earnestly implement strict law enforcement. ^[3]

The boundary between sin and non-sin

Whether the perpetrator knows subjectively or whether the purpose of defrauding others' property is an important criterion for distinguishing between sin and non-sin. In order to avoid confusing the boundary between crime and non-crime, this article makes special provisions on the subjective aspects of the perpetrator. If a counterfeit, altered, or voided draft, promissory note, or check is used, the actor must be knowledgeable subjectively. Does the subjective know that the draft, promissory note, or check used is forged, altered, or Void is one of the important boundaries of whether the crime is constituted. If the perpetrator did not know subjectively that the bill was forged, altered, or invalidated when using a bill of exchange, promissory note, or check, it does not constitute the crime. It should be noted that in

Judicial interpretation of bill fraud

[Judicial interpretation]

Supreme People's Court's Interpretation of the Difficulties in Applying the Law in the Trial of Fraud Cases

(1996.12.16 Fafa [1996] No. 32)

5. According to Article 12 of the Decision, the use of financial instruments for fraudulent activities, if the amount is large, constitutes the crime of bill fraud.

Individuals who defraud more than 5,000 yuan are classified as larger amounts; individuals who defrauded more than 50,000 yuan are classified as large amounts; individuals who defrauded more than 100,000 yuan are classified as large amounts; "The amount is particularly huge."

If the amount of fraudulent bills carried by a unit is more than RMB 0, 000, it is a "large amount"; if the amount of fraudulent bills carried by a unit is more than 300,000 yuan, it is classified as "a huge amount"; It belongs to "the amount is particularly huge".

Fraudulent or altered entrusted receipt receipts, remittance receipts, bank certificates of deposit and other bank settlement vouchers are used for fraud. If the amount is large, the bill shall be convicted and punished.

Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Prosecution of Economic Crime Cases 2001.5.

43. Bill fraud (Article 194, paragraph 1 of the Criminal Law)

Proceedings shall be prosecuted if one of the following circumstances is involved in fraudulent financial bills:

1. Individuals engage in financial bill fraud, the amount of which is more than 5,000 yuan;

2. Units engage in financial bill fraud, the amount of which is more than 100,000 yuan

Contract fraud and bill fraud are essentially "frauds", and bill fraud is often used as a means of contract fraud. Therefore, there are some cross-relationships, which easily confuse the boundary between this crime and the other crime. Therefore, we must correctly distinguish between contract fraud and bill fraud. We must not only protect legal operations in a timely and legal manner, but also crack down on fraudulent criminal activities in order to properly apply the law and conviction and punishment.

The so-called serious plot refers to a large amount of fraud or other serious plots. The so-called amount is huge, according to the "Interpretation of Several Issues Concerning the Specific Application of Laws in the Trial of Fraud Cases", which means that the amount of individual fraud amounts to more than 50,000 yuan, and the amount of unit fraud amounts to more than 300,000 yuan. As for other serious circumstances, it generally refers to the chief element of a fraud group that conducts bills; it has repeatedly conducted bill fraud and bad habits; it has caused huge economic losses to the victim because of its fraud; the fraudulent bills were used for other illegal and criminal activities; etc. Wait.

The so-called plot is particularly serious, which means that the amount of fraud is particularly large or has other plots that are particularly serious. If the amount of personal fraud reaches more than 100,000 yuan and the unit fraud reaches more than 1 million yuan, it can be regarded as a particularly large amount with reference to the provisions of the Interpretation. As for the other particularly serious plots, it mainly refers to those who use note fraud as their usual business. Those who have caused huge financial losses to others due to their fraud are recidivists, recidivists, or those who have committed multiple crimes, have multiple serious plots, and so on.

Article 194 In one of the following circumstances, where fraudulent activities of financial instruments are carried out, and the amount is large, he shall be sentenced to fixed-term imprisonment of not more than five years or detention,

Case Analysis of Bill Fraud

case

Defendant Guo, male, legal representative of Yichang Xiangliang Trading Co., Ltd.

On the morning of March 19, 2001, the defendant Guo held a bank acceptance bill with a face value of RMB 3 million and applied to the Industrial and Commercial Bank of China Three Gorges Branch Railway Dam Office (hereinafter referred to as ICBC Railway Office) to apply for discount procedures and asked the bank Check the authenticity of the bill of exchange by telegram. Afterwards, the bank confirmed that the bill of exchange was false. On March 26 of the same year, the defendant Guo was arrested on the spot when he arrived at the bank again.

Trial

The indictment of the People's Procuratorate of Xiling District, Yichang City, Hubei Province, has filed a public prosecution with the People's Court of Xiling District, Yichang City, Hubei Province.

The defendant, Guo, argued that the bill was obtained from its financing and that it was not known when the bill was obtained.

The defender believes that when Guo was using a 3 million yuan acceptance bill, he did not know that the bill was false and did not have the subjective intention to illegally defraud bank funds, and requested the court to acquit Guo.

The People's Court of Xiling District, Yichang City, Hubei Province believes that Guo knowingly used counterfeit bills and the amount is particularly huge, and his behavior has constituted the crime of bill fraud (attempt). The defense opinions of the defendant and its defenders regarding the unknown knowledge that the bill was false were not corroborated by evidence and were not accepted. In accordance with the provisions of Article 194, Article 23 and Article 23 of the Criminal Law of the People's Republic of China, Guo was sentenced to ten years in prison for the crime of bill fraud (attempt) and fined 50,000 yuan.

Guo refused to accept the first trial, and appealed to the Intermediate People's Court of Yichang, Hubei Province on the grounds that the facts of the case were not clear and the evidence was insufficient.

The Intermediate People's Court of Yichang City, Hubei Province found that the factual evidence was insufficient in the original judgment, and the public prosecution agency only inferred the possibility of Guo's falsification of the bill of exchange in the first instance trial, and basically based on Guo's confession. The existing evidence in this case was not enough to be truly sufficient, and the first instance judgment was ruled to be rescinded and returned to retrial.

The People's Court of Xiling District, Yichang City, Hubei Province reorganized the collegiate bench according to law, and the trial heard that: Guo took the forged 3 million yuan acceptance bill to ICBC Railway Office to apply for discount procedures, and asked the bank to check the authenticity of the bill by telegram . However, the evidence submitted by the public prosecutor's office cannot prove that when Guo performed the acts listed above, he knew that the acceptance bill was forged. Guo Mou argued in court that his ignorance point was consistent with the results of Liu Lihua's account inquiry and Liu Chuanxin's testimony provided by the public prosecutor's office. None of the important participants in the case, Lu Xinchao, Huang Zhiming, and Liu Lihua, came to justice. Therefore, the facts in this case are unclear and the evidence is insufficient, and Guo's behavior cannot be determined to constitute the crime of bill fraud. With the written suggestion of the People's Court of Xiling District, Yichang City, the People's Procuratorate of Xiling District of Yichang City withdrew the prosecution in the case of Guo's bill fraud.

Comment

During the trial of this case, the court of the first instance had the following opinions as to whether the defendant Guo's behavior constituted a crime.

One opinion is: Guo's behavior has constituted the crime of bill fraud. The reason is that: the defendant Guo knowingly used a forged bill, the amount is particularly huge, and his behavior has constituted a bill fraud. The public prosecutor's office determined that the defendant Guo's crime was huge and did not comply with the relevant regulations, and should be considered to be particularly huge. In the course of the crime, the defendant failed to succeed due to reasons other than his will, which was an attempted crime, and he may be given a lighter or mitigated punishment than the convicted offender. The defendant Guo could truthfully confess his crimes before his arrest, but after the arrest he did not truthfully confess his crimes, and his attitude of guilty was not good, and it should be considered as a sentencing circumstance.

Another opinion is that Guo's behavior does not constitute the crime of bill fraud. The crime of bill fraud refers to the act of using financial bills for fraudulent activities to obtain a large amount of property for the purpose of illegal possession. It has the following characteristics: 1. The object of crime. The object infringed by this crime is a dual object, which violates the property ownership of others and the financial management system of the country. The object of this crime is financial instruments, including cashier's checks, money orders, and checks. 2. The objective aspect of the crime The objective aspect of this crime is the use of financial instruments, fraudulent activities, and deception of large amounts of property. 3. The subjective aspect of the crime The subjective crime must be constituted deliberately, with the purpose of illegal possession. 4 Subject of crime The subject of this crime is the general subject (natural person and unit). In combination with the specific circumstances of this case, the evidence submitted by the public prosecution office cannot prove the fact that Guo knew that the 3 million yuan acceptance bill was false, that is, he could not prove that he knew it subjectively and had the purpose of illegal possession. The reasons are as follows:

First, the main evidence charged by the public prosecutor's office for Guo was his confession during the investigation. Guo withdrew his confession after his arrest. Whether Guo's confession was based on his confession before the arrest or after his arrest. The statement must be authenticated in conjunction with other indirect evidence.

Second, the analysis of the indirect evidence of this case is as follows: Zhao Xiwen and Shen Wuxiang confirmed that in August or September 2000, Guo negotiated with Dongshan Development Zone of Yichang City for investment, and the two parties signed a letter of intent for investment. It is confirmed that Guo has signed an investment contract with Dongshan Development Zone in Yichang City. Liu Chuanxin confirmed the fact that the ICBC Railway Office deceived Mr. Guo into the bank by using the bill of exchange as the true bill. Saving deposit receipts, a copy of Liu Lihua's ID card and the results of the inquiry of the savings transaction of China Merchants Bank Wuhan Branch confirmed that on March 26, 2001, Liu Lihua's account received 34,000 yuan. This confirms Guo's argument that the bank notified him that the acceptance bill of 3 million yuan was real, and he paid Liu Lihua a handling fee of 34,000 yuan.

Third, none of the participants in the case, Lu Xinchao, Huang Zhiming, and Liu Lihua, came to justice.

From the above three points, we can see that Guo's confession before his arrest did not form a chain of evidence with other evidence in this case, and the three main participants in this case were not brought to justice. Therefore, the public prosecution agency charged Guo with the crime of bill fraud. The facts are unclear and the evidence is insufficient. Guo should be acquitted in accordance with the principle of suspicion of guilt.

In our opinion, after the case was remanded for retrial, the court's view that Guo was innocent was correct.

People's Court of Xiling District, Yichang: Du Xiaohong