People v. Zhang Yeqiang et al. (case of illegal fundraising)
(Case No.175 of the Guiding Case of the Supreme People's Procuratorate)
Key Words
Privately offered funds, Illegal fund-raising, Purpose of illegal possession, Evidence examination
Key Point
An act shall be recognized as illegal fundraising in a disguised form, where publicizing privately offered funds to raise funds from the public and promising to repay principal and interest have been done in breach of relevant regulations on the management of privately offered funds. Concealing from the investors the fact that the raised funds have not been used for the agreed projects and fabricating information about the operation of invested projects shall be considered the adoption of fraudulent means. Illegal fundraisers shall be recognized as having the purpose of illegal possession, if they make investments negligently, know the unrealistic profitability of their operations to cover principal and interest payments, continue to raise large-scale funds from the public to repay principal and interest through new fundraising, and end up unable to return the raised fund, despite allocating a portion of the raised funds to productive and operative activities. In cases of joint crimes or crimes committed by an entity, the distinction between the crime of illegal fundraising by fraudulent means and the crime of illegally absorbing public savings should be made depending on whether illegal fundraisers have a purpose of illegal possession. The procuratorial organs should focus on key factors related to the privately offered funds, such as the publicity and promotion methods, profit distribution rules, investors’ information, and the actual use of funds, to determine whether illegal fundraisers have the purpose of illegal possession, and conduct targeted prosecution and proof accordingly.
Relevant Provisions
Article 176 and 192 of the Criminal Law of the People's Republic of China
Article 11 of the Commercial Banking Law of the People's Republic of China
Article 87 and 91 of the Securities Investment Fund Law of the People's Republic of China
Article 1,2, and 7 of the Interpretation of the Supreme People's Court of Several Issues on the Specific Application of Law in the Handling of Criminal Cases about Illegal Fundraising (Interpretation No.5 [2022] of the Supreme People's Court)
Article 11,12,14,15, and 24 of the Interim Measures for the Supervision and Administration of Privately Offered Investment Funds (No. 15, Order of the China Securities Regulatory Commission)
People v. Guo Siji, Xu Weilun et al. (case of counterfeiting currency)
(Case No.176 of the Guiding Case of the Supreme People's Procuratorate)
Key Words
Counterfeiting currency, Cybercrime, Joint crime, Principal offender, Whole chain punishment
Key Point
Individuals who provide technology or materials specifically used for counterfeiting currency to those directly engaged in counterfeiting currency shall be recognized as having the intent of committing the joint crime of counterfeiting currency. Anyone who actively publicizes online and voluntarily provides key technology and materials specifically used for counterfeiting currency to those directly engaged in counterfeiting currency, or who knows other persons have the intent of counterfeiting currency, but still actively provides relevant technology and materials, among others, specifically used for counterfeiting currency, shall be recognized as playing a main role in the joint crime of counterfeiting currency and acting as the principal offender, therefore liable for the total amount involved in the crime where he actually participated. In cases of counterfeiting currency involving online communications, division of labor, and joint implementation, the procuratorial organs should focus on prosecuting the whole chain of the crime in accordance with the law.
Relevant Provisions
Article 25, 26, and 170 of the Criminal Law of the People's Republic of China
Article 171 and 175 of the Criminal Procedure Law of the People's Republic of China
Article 1 of Interpretation of the Supreme People's Court of Several Issues on the Specific Application of Law in the Trial of Cases about Counterfeiting Currencies, Etc.
People v. Sun Xudong (case of unlawful business operation)
(Case No.177 of the Guiding Case of the Supreme People's Procuratorate)
Key Words
Crime of unlawful business operation, Cashing out by POS terminal, Violation of laws and regulations issued by the State, Investigation of its own
Key Point
For the act of unlawful cashing out for credit cardholders who maliciously overdraft, the distinction between the crime of unlawful business operation and the crime of credit card fraud lies on whether the offender communicates a criminal intent to the credit cardholders or whether the offender has the purpose of illegal possession, among other factors. If a criminal suspect is seriously believed of committing an uncharged crime based on ascertained facts, the procuratorial organs may conduct their own investigation in accordance with the law, when the conditions for prosecution are not met after two supplementary investigations. Considering the characteristics of relevant types of crimes, the procuratorial organs shall analyze and examine the evidence on record, the evidence that needs to be supplemented, and possible directions of investigation, so as to determine the feasibility of and path to conducting the investigation of their own. When discovering clues involving upstream and downstream illegal financial business operations in handling credit card fraud cases, the procuratorial organs shall, through the performance of their duties such as the supervision of case filing, prosecute the uncharged criminal suspects and crimes in accordance with the law.
Relevant Provisions
Article 225 of the Criminal Law of the People's Republic of China
Article 175 of the Criminal Procedure Law of the People's Republic of China
Article 3 and 11 of the Commercial Banking Law of the People's Republic of China
Article 39 of the Regulation on the Prevention and Treatment of Illegal Fund-raising
Article 12 of the Interpretation by the Supreme People's Court and the Supreme People's Procuratorate of Several Issues Concerning the Specific Application of Law in the Handling of Criminal Cases of Disturbing the Administration of Credit Cards (Interpretation No.19 [2018] of the Supreme People's Court)
Article 345 and 423 of the Rules of Criminal Procedure for the People's Procuratorates (No. 4 [2019] of the Interpretation of the Supreme People's Procuratorate)
