Thinking of criminal reporting agency for financial TR platform fraud cases
Author | Criminal Center, Lawyer Liu Yunfa
Brief Introduction to the Case
Complainant D and accused X met in early 2019 and were friends. In June and July 2021, X called D twice to say that he was working on a financial investment project that was very profitable. He tried to persuade D to participate, but D refused.
X did not give up. In December 2021, X learned that D was leaving and needed to find a new job, so he took the initiative to recommend a company assistant for D. After D joined the company, X and the company boss S asked D to learn to open an account and register an account, and introduced to D that the two of them had made a lot of money doing financial management on a platform called TR foreign exchange, insisting that the platform was a regular and legitimate foreign exchange investment trading platform, and invited D to invest on the platform together.
Due to the lack of understanding of the TR foreign exchange platform before, D did not want to invest. In order to gain D's trust, X has been showing him the profitability of his investment on the TR platform, and promised to guarantee the bottom line and earn about 5,000 yuan every 100,000 month, and said that as long as he invests with himself, D will not suffer losses.
X also said that he didn't have enough money at the beginning. He used his children's insurance policy to collect the money for the mortgage, and now he has earned it back long ago.
Under the continuous induction of X, D gradually began to borrow most of the money according to the requirements of X and S, and even finally made a mortgage loan of 1 million yuan for a house in his hometown, and transferred the funds to the private bank account designated by X and S through bank, online banking transfer or Alipay, WeChat transfer.
D transferred nearly 1.50 million yuan from January 9, 2022 to April 2, 2022. During this period, X also fulfilled its promise and rewarded D with a CUCI brand luxury women's bag.
In June 2022, the website and account of the TR foreign exchange platform suddenly could not be logged in. X and S said that someone in Guangxi called the police, and the public security went to check. If something went wrong, they needed to log in to another new system. After logging in to the new system, X and S kept quiet about foreign exchange financial management and turned to talking about USDT (TEDA) every day.
At this point, D realized that he might have been deceived. He asked the two to return the money, but X and S ignored it on the grounds that D had voluntarily contributed to obtain high returns. D had no choice but to report the case to the police station by himself, demanding that the two be investigated for criminal responsibility for fraud and refund the full amount. Due to unclear thinking and incomplete evidence submission, the filing process was slow, so he contacted a lawyer and commissioned a legal opinion and accompanied the report.
II. Agency thinking
After communicating with accuser D and reviewing the evidence, the lawyer concluded that:
(1) The behavior of X and S conforms to the criminal constitution of the crime of fraud, and is suspected of constituting an accomplice to the crime of fraud for the following reasons:
The provisions of Article 266 of the Criminal Law on the crime of fraud refer to the act of defrauding a large amount of public and private property by making up facts or concealing the truth for the purpose of illegal possession.
1. X and S have been claiming to D that they are doing foreign exchange financial management projects. But there is no evidence that they are engaged in foreign exchange transactions. The account they asked D to open has nothing to do with the regular foreign exchange trading platform. The account can only transfer virtual numbers between superiors and subordinates, and cannot be ruled out as fake transactions simulated by fake computer programs developed by X and S;
2. Even if X and S are really operating TR Forex and 4XHUB as they say, but TR Forex and 4XHUB have not obtained legal supervision and have been defined as fraudulent platforms and funds; therefore, X and S are deliberately making up facts or concealing the truth.
3. D's investment of nearly 1.50 million yuan did not enter any trading platform or foreign exchange platform, and these funds were illegally appropriated by them in the pockets of X and S.
The Minutes of the National Forum on the Trial of Financial Crime Cases issued by the Supreme People's Court on January 21, 2001 have clearly stated: "If the perpetrator illegally obtains funds through fraud, resulting in a large amount of funds that cannot be returned, and has any of the following circumstances, it can be determined that it has the purpose of illegal possession:
(1) knowingly without the ability to return a large amount of funds fraudulently obtained;
(2) Fleeing after illegally obtaining funds;
(3) wantonly squandering and defrauding funds;
(4) using fraudulent funds for illegal or criminal activities;
(5) withdrawing, transferring funds, or concealing property in order to avoid returning funds;
(6) concealing or destroying accounts, or engaging in fraudulent bankruptcy or bankruptcy to avoid returning funds;
(7) Other acts of illegally possessing funds and refusing to return them. "
In this case, X and S knew that the funds they defrauded were used to invest in pyramid schemes and fraudulent platforms for criminal activities, and they still did not return the defrauded money under the requirements of D after the incident, which was sufficient to determine that the two people subjectively had the purpose of illegal possession of the defrauded property.
4. X carried out a series of deceptive behaviors on D in order to enable D to invest, including constantly promising and showing off generous returns, deceiving himself into claiming that he had mortgaged insurance policy loans, encouraging Duan mortgage real estate loans, promising to give D luxury bags, etc. Subjectively, he tried his best to pursue Duan investment deception.
5. X and S know that they are committing a crime and have a strong sense of anti-reconnaissance. They often remind D not to send screenshots of transfers, do not mention the mention of TR, and deliberately choose other chat software to evade investigation (see Evidence 4);
6. After the old platform could not be logged in, a new login system was designed. After logging in to the new system, he avoided talking about TR foreign exchange financial management, and suddenly inexplicably mentioned USDT, again blatantly fictitious facts, concealing the truth.
(2) The behavior of X and S conforms to the criminal constitution of the crime of compound pyramid scheme fraud, and is suspected of being an accomplice to the crime of fraud for the following reasons:
1. It has a hierarchical relationship between upper and lower levels. D is the downline of X, and X is the downline of S.
2. Preach, seduce, and implement membership to unspecified audiences.
3. Both X and S have developed several offline accounts, some of which were opened through D, but D did not understand them at that time.
(3) X and S, knowing that the TR platform is a pyramid scheme and fraud platform, still falsely claimed to D that it is a legitimate and regular investment platform, and made false promises to ensure that the principal will not lose money while also obtaining high investment returns, deceiving D to transfer the property to a bank account under their own or actual control, and form a dominant power over the property. They can already actually control D's property, and D refuses to return the property after D knows that the TR platform does not have legal qualifications, using D as an excuse to evade accountability for voluntary contributions.
X and S subjectively for the purpose of illegal possession, concealing the fact that the TR foreign exchange platform does not have legitimacy in our country's mainland, making the accuser D have a wrong understanding of the nature of the platform, and using its wrong understanding to defraud D's equity fund more than 1.4 million yuan to their own (controlled) bank account, used by the two people, the two accused belong to the joint implementation of fraud, defrauding the accuser D's property, the amount is particularly huge.
The accused person has been suspected of fraud according to law, and the amount involved is particularly huge, and can be sentenced to more than ten years in prison according to law.
III. Case handling progress
After accepting the commission on July 6, 2023, the lawyer sorted out the evidentiary materials, drafted the legal opinions and report materials, and inquired about the exact same and highly similar cases that appeared all over the country, including cases filed by the public security organs of various provinces and cities for investigation, discovery, and transfer for review and prosecution.
On July 11, the report materials and legal opinions were submitted to the public security organs. And fully communicated with the public security organs, exchanged specific cases and legal opinions, so that the public security organs had a deeper understanding of the details of the case on the basis of the original D's report. On July 12, the public security organs made a decision to file a criminal case.
IV. Remedies for Public Security Organs Not to File a Criminal Case
According to Gongtong Zi (2015) No. 32 "Opinions of the Ministry of Public Security on Reforming and Improving the System of Accepting and Filing Cases", the public security organ shall immediately conduct a case-handling review after receiving a case. For cases where the facts of violations and crimes are clear, the public security organ shall not shirk and delay. The time limit for receiving a case review shall not exceed 3 days.
For suspected criminal leads that need to be verified, the filing and review period shall not exceed 7 days; for major difficult and complex cases, the filing and review period may be extended to 30 days.
If the public security organ refuses to accept the case, it may file a case with the people's procuratorate for supervision in accordance with Article 113 of the Criminal Procedure Law, and the procuratorate shall request the public security organ to explain the reasons for not filing the case. If the reasons are not established, the procuratorate shall notify the case to be filed.
V. View Sharing
1. Such prosecution cases are difficult, and lawyers' intervention and guidance will greatly increase the success rate of filing cases.
The difficulty of such cases mainly lies in correctly distinguishing between criminal fraud and civil fraud, and the key to distinguishing between the two lies in whether there is the purpose of illegal possession and whether to make up facts and conceal the truth. It is difficult for non-legal professionals to explain clearly. As subjective elements, illegal possession, the purpose of making up facts and concealing the truth reflect the subjective mentality and purpose of the perpetrator.
However, because it is difficult to pry into the inner world of others, it can only be inferred and demonstrated to the judicial organs through the objective behavior of the perpetrator. Experienced lawyers can see the essence through imagination and analyze the nature, content, degree and result of deception, so as to draw relatively rigorous and convincing conclusions, which are easier to be recognized by the public security organs;
2. Guide and assist the complainant in conducting criminal charges and sorting out evidence.
At present, there is no clear law stipulating that the victim has the right to appoint an agent ad litem in the investigation stage. However, due to the lack of legal expertise of the complainant, the confused expression, and the inability to effectively organize and collect key evidence, it is necessary to hire professional lawyers to intervene in the investigation stage to provide legal knowledge counseling for the complainant, assist the complainant in collecting, organizing and submitting relevant evidence and materials for the successful filing of similar cases, so as to improve the probability of successful criminal prosecution.
3. The agent should handle the relationship with the case handling authority correctly.
In criminal prosecution cases, it should be made clear that lawyers are only the assistants of the public security organs. The main subjects of investigation and evidence collection, interrogation and other investigative acts can only be the public security organs. However, the public security organs also need experienced criminal lawyers to assist in providing investigation ideas, assisting in investigation and evidence collection, and sorting out case materials. Therefore, acting lawyers should correctly understand their position, communicate friendly with the case handling organs, and play an active role.
August 21, 2023
About the Author
Lawyer Liu Yunfa
Senior Equity Partner of
Director of Commercial Crime Defense Department of Zhiheng Criminal Center
Business area
Criminal defense, real estate disputes, marriage inheritance, contract disputes, equity disputes, labor disputes
In criminal defense, there have been death penalty defense to life imprisonment and innocent defense, conviction and immunity, multiple probation, commutation, release on bail pending trial and other successful criminal defense experience.
Center Profile
Criminal Center
The Criminal Center is one of the professional centers of
. Its main business includes commercial crime defense, criminal litigation, financial crime defense, common crime defense, and criminal-civil intersection. It brings together talents, platforms, and professional advantages. At the same time, it has the advantage of quickly forming cross-business and cross-regional cooperation teams, and can provide comprehensive, timely and accurate legal services to clients.
The Criminal Center is dedicated to professional cultivation, and continues to move forward with the goal of "building an excellent business card for national criminal legal services".
This article and its content are shared by Zhiheng lawyers. It is for communication purposes only and does not represent the legal opinions, suggestions or decision-making basis issued by the law firm or lawyers. If you need legal advice or legal professional analysis, please contact the professional lawyers of
, or leave your contact information in a private message. If you need to reprint this article, please contact the editor in the background.