The people's courts of all counties (cities, districts) and all departments of this court:
In order to thoroughly implement Xi Jinping's thought on the rule of law, promote the construction of the rule of law in Weinan, and improve the people's legal awareness, according to the "Weinan Intermediate People's Court Typical Case Release System", The Municipal Intermediate People's Court selected 8 cases in which the city's courts have taken legal effect. The facts of these cases are clearly identified, the legal analysis is thorough, and the judgment and reasoning are in place, which fully reflects the judicial concept of the people's courts to protect legitimate rights and interests in accordance with the law, maintain social and economic order, and severely punish crimes. Virtues , building a harmonious and honest society, and encouraging law-abiding have guiding and educational significance, and are now released to the society.
Weinan Intermediate People's Court
September 5, 2022
There will be no pie in the sky, any investment or wealth management without risky high returns is a scam On March 15, 2018, Li registered and operated a family portrait service center in , , Hancheng. Under the guise of selling health products, he defrauded middle-aged and elderly people by distributing eggs, free foot washing, massage, travel and other means. Different levels of consumer membership cards of “A Mom Le Company” can regularly get high cashback as bait. For example, silver card members can return 2,000 yuan in installments within two years after a one-time consumption of 1,280 yuan, etc., attracting middle-aged and elderly people to invest. Every day, Mr. Li submits the funds invested by the members to "A Mom Le Company", and is responsible for the distribution of the member's rebate amount. His sales (1,280 yuan) can get the company's 20 yuan reward commission. In October 2017, the company stopped paying Member rebates. As of the incident, Li illegally absorbed a total of 1,185,666 yuan of public deposits, causing economic losses of 1,017,513 yuan to 28 fundraising participants.
[Judgment Result] The court held that the defendant, Li, violated the provisions of the national financial management laws and, without the approval of the relevant departments, made public publicity to the society by distributing leaflets and other forms, illegally soliciting deposits from unspecified persons in the society in a disguised form, disrupting the financial order, and The behavior has constituted the crime of illegally absorbing public deposits . In view of the fact that the defendant Li confessed and voluntarily pleaded guilty and accepted punishment, he can be given a lighter punishment in accordance with the law. Judgment: Defendant Li committed the crime of illegally absorbing public deposits, sentenced to one year and two months in prison, fined 50,000 yuan, and ordered him to refund 1,017,513 yuan to the fund-raising participants.
[Typical meaning] In recent years, taking advantage of the mentality of middle-aged and elderly people who pay attention to physical health and seek small profits, they have been very active in crimes such as fraud and illegal absorption of public deposits by selling health care products. In this case, Li, in the name of selling health products, after gaining the trust of middle-aged and elderly people, deceived him to participate in the investment cashback activity, which eventually caused the victim to lose a lot of property. I would like to remind the general public, especially middle-aged and elderly friends, to be vigilant at all times and keep a clear head at all times. No matter in any form, any investment or financial management that promotes risk-free and high returns must be a scam. Otherwise, you will always get a little rebate, and you will always lose the principal.
[Case source] Hancheng People's Court
Case 2
Agency for endowment insurance must obtain the corresponding qualifications and authority according to law,
The insured should check carefully and beware of being deceived Without obtaining the qualification and authority to handle endowment insurance, Fan set up an office without permission, and used the name of "a development company in Weinan area" to charge a number of victims between 5,000 yuan and 32,000 yuan each on the pretext of providing endowment insurance for others. and other expenses. After the victim paid the money, Fan issued a receipt stamped with the seal of "a development company in Weinan area" to the victim or a receipt written by him. By the time of the incident, Fan had defrauded 249 victims of 3,463,700 yuan of money, and the illicit money was used for personal loans and living expenses.be refunded.
[Judgment Result] The court held that the defendant, Fan, for the purpose of illegal possession, falsely claimed that others were applying for endowment insurance, and repeatedly defrauded others of money, the amount was particularly large, and his behavior constituted the crime of fraud. Defendant Fan defrauded the property of the elderly and should be severely punished according to law; given that he could truthfully confess the facts of the crime during the trial, he could be given a lighter punishment according to law; , and found that the crime of fraud was not convicted before the above-mentioned judgment was announced, which is a crime of omission, and should be punished for several crimes according to law. Judgment: Defendant Fan committed fraud and was punished for several crimes. He was sentenced to 15 years in prison and fined 150,000 yuan. At the same time, he was ordered to refund 3,382,700 yuan of illegal gains to the victims.
[Typical meaning] This case is a typical case of fraud under the name of "endowment insurance". The defendant, without the qualification and authority to handle endowment insurance, provided endowment insurance for others and defrauded the elderly of money. Especially in the name of the unit to provide endowment insurance, it is very easy for the elderly to fall into cognitive errors and suffer property losses. This case once again reminds the relevant departments to increase the publicity of fraud cases involving the elderly, and the general public, especially the middle-aged and elderly people, should continuously improve their awareness and prevention capabilities to avoid being victimized by fraud.
[Case source] Linwei District People's Court
case 3
deceived the victim's trust by means of love, making friends, etc., and deceived
The victim made false investment and made a profit, which constituted a crime of fraud
-- Wang et al. ] In March 2020, Wang and Su and other five people planned to make a "killing pig" to defraud money. They recruited a number of "salesmen" to find divorced women through the dating and dating software "a couple" and "a certain good fate" , and then kept in touch with the victim through WeChat, using special words to defraud the victim's emotional trust and establish a false romantic relationship, and then fabricated the identity of the employee of the securities company, and asked the victim to help him invest in stocks in the "a securities trading system" provided by him. The gang used the pretense of manipulating stocks to make profits in the background, inducing and instigating the victims to recharge and invest on the fake website it provided, and lured the victims to increase their investment by grasping the inside information of stock suspension , etc. When the victims recharged a large amount of money, they blocked WeChat , cut off contact, thereby defrauding the victim of money. Wang and others defrauded more than 1.14 million yuan from multiple victims.
[Judgment Result] The court held that for the purpose of illegal possession, the defendant Wang and others used the Internet to fabricate facts such as marriage and love, stock investment, etc., to defraud other people's property, and the amount was particularly huge. . Defendant Wang is the organizer and leader of the criminal gang and plays a major role in the joint crime. He is the principal offender and should be held responsible for all crimes committed by the criminal gang and be severely punished according to law; Penalties may be lenient in accordance with the law. Defendant Su and the other four were hired to commit crimes and played a secondary role in the joint crime. They were accomplices, and they returned all their illegal gains after arriving at the case. They voluntarily pleaded guilty and accepted punishment. Defendant Su is a repeat offender and should be severely punished. Verdict: Defendant Wang committed fraud and was sentenced to ten years and six months in prison and fined 80,000 yuan; defendant Su and other four committed fraud and were sentenced to fixed-term imprisonment and fined respectively.
[Typical meaning] "killing pigs" is an emerging cybercrime in recent years. It is extremely confusing and concealed, and the victims are not easily detected and easily deceived. It is the key target of judicial organs. This case clearly shows the steps of "killing pigs": first, defraud the victim's emotional trust, and then induce the victim to invest, and finally achieve the purpose of defrauding the victim's money. This case once again reminds the general public that criminals have various fraudulent methods and various names, but their essence remains the same. Do not believe in online feelings, do not believe in any insider investment, and always maintain a high degree of vigilance when using the Internet. Take advantage of the opportunity; if you find that your property has been defrauded, you should report it to the police in time, actively assist the judicial authorities to fight crime, and stop losses as soon as possible.
[Case source] Baishui County People's Court
Case 4
Qualification review and safety should be fully performed during constructionGuarantee Obligation
——Zhao v. a property company and other labor providers and other labor providers, a case of dispute over the liability of victims Coal boiler, a construction company subcontracted the project to Xie Mou, Xie Mou entrusted Yang Mou to hire Zhao Mou and other five people to do the work. During the operation, Zhao Mou was hospitalized for 48 days due to the sudden collapse of the wall, resulting in a comminuted fracture of the right leg and rupture of the arteries and nerves. According to judicial appraisal, Zhao is missing the lower right knee joint and above, which is a sixth-degree disability. He needs to install a right thigh prosthesis at a cost of about 45,500 yuan. It will be replaced every four years.
[Judgment Result] The court held that the relationship between a property company and a construction company and between a construction company and Xie was a contract. As an orderer, a construction company neglected to review, and delivered work with certain high-risk operational risks, high industry standards, and easily causing potential safety hazards to a contractor who did not have the corresponding qualifications. It also did not provide evidence to prove that it has given risk warnings to the actual constructors or taken relevant measures to avoid risks, and should bear the corresponding liability for compensation. An employment legal relationship was formed between Zhao and Xie. Zhao was injured in employment activities, and Xie, as an employer, should be liable for compensation. Zhao has full capacity for civil conduct, neglects his own safety during the operation, and fails to fulfill his duty of reasonable safety care, and the liability of the obligor of compensation should be reduced. A property company is not at fault and does not assume responsibility; Xie entrusts Yang to hire someone to work, and Yang is the trustee and does not bear civil liability; Fan and others are employees and do not bear civil liability, so Xie is ordered to bear the responsibility 60% of the responsibility, compensation of 486,236.77 yuan; a construction company bears 20% of the responsibility, compensation of 162,078.92 yuan; Zhao bears 20% of the responsibility, that is, 162,078.92 yuan.
[Typical meaning] In this case, the contractor Xie Xie did not have the qualifications for high-risk project construction, and did not take good construction safety precautions, so he was primarily responsible for the compensation; the contractor, a construction company, did not examine Xie Xie's construction qualifications, and assumed secondary responsibility. Responsibility; Zhao, an employee, neglected his own safety and neglected precautions in his work. He had certain faults and assumed secondary responsibility. The court ruled that each party should bear the corresponding responsibilities according to the law, reflecting the legal principle of consistent rights and responsibilities and equal protection. It should be reminded that such problems are more prominent in contract contracts and construction contracts, and they are also the main reason for the large disputes over liability for compensation in the event of an accident. When engaging in some highly specialized and dangerous engineering operations, all parties concerned should clarify the nature of the project, and comprehensively review the enterprise qualifications, construction personnel qualifications and construction operation specifications, safety construction requirements, etc. Guarantee the obligation to prevent the occurrence of accidents, otherwise the corresponding price will be paid.
[Case source] Hancheng People's Court
Case 5
If the real property is registered but the real estate is not actually delivered, the seller should continue to perform the delivery obligation Basic case: On September 23, 2020, Niu and Su purchased a unit from Wei. Zhang has lived in the unit for a long time since April 2014 on the grounds that he has economic disputes with Wei's relatives. The house has not been actually occupied by Wei and has not been delivered to the buyer. In October 2020, Niu Mou and Su Mou asked Zhang Mou to vacate the house. After three-party negotiation failed, the lawsuit was brought to the court.
[Judgment Result] The court held that this case was a dispute over real property rights. Whether Niu Mou and Su Mou enjoyed the real right of the house involved should be determined from whether the house involved was actually delivered, whether the change registration was handled, and whether the effect of the change in real right was produced, etc. On the one hand, comprehensive judgment shall be made in combination with relevant laws and regulations. Although Niu and Su signed a house sales contract with the seller Wei, and completed the house transfer registration, Wei did not actually occupy the house. When Niu and Su bought the house involved, they knew that the house was stolen by others. Possession without actual delivery, its real right has rights flaws. According to the principle of relativity of contracts, Niu and Su should claim to Wei that the house should be handed over, and their petition to Zhang to vacate the house could not be done.established, so the claims of Niu and Su were dismissed. After the judgment took effect, Wei negotiated with Niu, Su and Zhang and reached an agreement. After Niu and Su paid Zhang the remaining 200,000 yuan for the house involved, Zhang vacated and handed over the house, and the dispute was completely resolved. solve.
[Typical meaning] The rights to possess, use, benefit and dispose of the house can be separated, and the third party can legally occupy and use the house due to legal relations such as leasing. The obligations of the seller in the house sales contract include the delivery of real estate and the registration of real estate rights. The buyer must pay attention to the complete realization of real rights. In this case, although the buyer and the seller of the house have gone through the registration of the change of real estate rights, which has the effect of publicizing the change of real estate rights, but did not hand over the house to the buyer for actual possession and control, there are defects in the real right, and the court used a third party to obtain the ownership of the house. The plaintiff's claim was rejected in accordance with the law on the grounds that the person agreed to take legal possession of the house and the house was not actually delivered, which protected the legitimate rights and interests of the house occupant and demonstrated the fairness and fairness of the law. At the same time, it also informs the general public that only by choosing the correct remedy and choosing the correct object of prosecution can they better safeguard their legitimate rights and interests.
[Case source] Huayin City People's Court
case 6
tolerant and courteous, and care about impulsiveness to cause trouble
-- Zhang's intentional injury case
[Basic case] Zhang and Wang are adjacent to each other, because Zhang and his wife often When he did not live at home, Wang piled stone bars on the open space in front of Zhang's house. After Zhang and his wife went home, they repeatedly asked Wang to move the stone bars out, but they failed. On November 15, 2020, when Zhang's wife asked Wang to move away from the stone bar again, a quarrel occurred, which led to tearing. Zhang rushed to the scene and stabbed Wang to the ground with a tree stick. It was identified that Wang was slightly injured. Secondary. Zhang compensated Wang for economic losses of 5,000 yuan, and Wang expressed his understanding to Zhang.
[Judgment Result] The court held that both parties in the battering had intentions to hurt each other, which did not have the justice of defense and did not constitute a justifiable defense. Defendant Zhang injured a person with a stick due to a neighborhood dispute, causing one person to be slightly injured. His behavior constituted the crime of intentional injury. However, since this case was caused by a neighborhood dispute and the victim was at fault, the defendant Zhang could actively compensate the victim financially. The defendant Zhang was guilty of intentional injury and was exempted from criminal punishment, considering that the crime was minor.
【Typical meaning】Contradictions and disputes between neighbors are often caused by improper handling, resulting in fights, causing personal injury or major property damage, and involving criminal crimes. In this case, due to trivial matters, neighbors were abused to tear at each other, and finally a minor injury case occurred. Although the victim was compensated, he was physically and mentally injured. Although the defendant was exempted from criminal punishment by the people's court, his behavior It has already constituted a crime, but the punishment has not been punished, which has left a stain on life and has long-term negative effects. This case once again warns: Be friendly with your neighbors, be close to your neighbors, be more tolerant and care less, and remember that "there is no winner in battle, impulse is the devil".
[Case source] Huazhou District People's Court
Case 7
The Internet is not an extrajudicial place, and online shopping should also abide by the law Jingdong account, set different delivery addresses on the WeChat applet "Jingdong Shopping", and use cash on delivery to place an order to buy multiple iPhones, pure gold bracelets, etc. After the goods arrive, they use the trust and negligence of the courier in the payment process to cheat the goods away by using fake transfer screenshots, and squander the stolen money after selling the stolen goods. Chen defrauded a total of 70,832.95 yuan in property.
[Judgment Result] The court held that for the purpose of illegal possession, the defendant, Chen Mou, fabricated facts, concealed the truth, and defrauded other people's property for the purpose of illegal possession, and his behavior violated the criminal law. Verdict: Defendant Chen Mou committed fraud and was sentenced to three years and ten months in prison and a fine of 10,000 yuan.
[Typical meaning] Resolutely crack down on all kinds of fraud crimes and maintain a good business environment is the responsibility of the people's courts to serve and ensure economic and social development. In this case, ChenThe purpose of illegal possession is to use different delivery addresses and fake shopping accounts to defraud property through online shopping many times. The court sentenced him to the crime of fraud. This case reminds the public that while enjoying the convenience of online transactions, they should not only abide by legal regulations, adhere to the principle of good faith, but also enhance their awareness of prevention and improve their ability to prevent fraud.
[Case source] Case 8
of Pucheng County People's Court 8
did not declare property truthfully, nor consciously fulfilled the obligations determined by the effective legal document
, transferring or disposing of property for free to avoid execution
, constitutes the crime of refusing to execute judgment
—— Zhao and Li refused to enforce the judgment
[Basic case] Wang and Zhao and Li had a private loan dispute. The court ruled that Zhao and Li should repay Wang's principal and interest of 2 million yuan. Without consciously performing it, Wang applied for compulsory execution. The court notified Zhao and Li to perform their judgment obligations, ordered them to truthfully report their property conditions within the specified time limit, and sealed up multiple properties in their names according to law. Zhao and Li not only failed to consciously perform the payment obligations determined in the judgment and did not report their property conditions truthfully, but also transferred a mini car (valued at 300,000 yuan) under their names to Li's father's name for free. The court decided to impose judicial detention measures on Zhao and Li in accordance with the law. Because Li escaped, the detention measures could not be implemented, and he still did not declare his property and evaded execution. The court extracted the execution money through judicial auction of part of the real estate.
[Judgment Result] The court held that after receiving the enforcement notice and property reporting order, Zhao and Li, who were subject to enforcement, neither declared their property nor consciously performed their obligations as determined by legal documents, which belonged to those who were capable of enforcement. Refusing to execute. Judgment: Defendant Zhao committed the crime of refusing to execute the judgment and was sentenced to one year in prison; the defendant Li, who committed the crime of refusing to execute the judgment, was sentenced to one year in prison with a probation period of one year.
[Typical meaning] It is the legal responsibility of the people's court to effectively safeguard the legitimate rights and interests of the winning party and establish judicial authority to crack down on refusal to execute and resolve "difficulty in execution." This case is a typical case of refusing to execute a judgment or ruling a crime. The second person subject to execution has a certain economic income and has multiple properties in his name. After the people's court made a judgment, he knew that he lost the case and maliciously took all his cars in order to avoid execution. The transfer of ownership to his father's name without compensation falls under the circumstances of "the ability to execute but refusal to execute, and the circumstances are serious" stipulated in Article 313 of the Criminal Law. During the execution period, neither declaring property, evading execution of detention measures and refusing to declare property even when the people's court makes a decision on detention, falls within the provisions of the Interpretation of Article 313 of the Criminal Law by the Standing Committee of the National People's Congress. "Other circumstances that are capable of execution but refuse to execute, and the circumstances are serious" constitute a refusal to execute the judgment or the guilt, and be punished by the law.
[Case source] Weinan Intermediate People's Court
