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2013-07-23 19:03:36


A
SAMPLE CASE OF INNOCENT PLEADING
——About bank clerks’ criminal
respcnsibility in examaining the laon and transferring adventure.


Summary: The appealprocedure about Mr.Li and Mr.Zhongs’illegal lending loan.
    A brief: The first trial court stood by the pubic procurator for his prosecuting statement and confirmed that Mr.Li and Mr. Zhong, the clerks of a commercial bank, had disobeyed the rules of national credit management and failed to examining the loan strictly and Lent￥2,400,00RMB to Qingdao HaohaiChemical
Auxiliary Ltd.co.(shorted as QHHC)duringDecember ,1996—December,1998.And that had mad the bank failed to collect the loan of￥2，350，000（including
the interest）on due time, and had to bear a grand loss,At the mean time, the accuseds Mr.Li and Mr,Zhong,by their power ofpositions,hadQingdaoHongsheng Auto-Mobile Ltd,Co(QHAC)born the abovementioned non-performing loan, So, the two accuseds had commited a crime of illegal lending loan, and Mr.Zhong had been sentenced to six  months of criminal detention and been reprieved for the name period, the fine of ￥60，000RMB been imposed on him as well.
    After the first trial, Mr.Zhong appealed to Kingdom Middle-class people’s court by reason of innocent, and trust me to work as his apologister in the appeal procedure.During the procedure, I expressed the pleading Statment as the following:
    1、The appealer has done his duty of strict examinatiou of the loan while he transacted the business, and the business he have done is conformity with the legal procedure.And there are no any Violations of rules and regulations in his transactions.
    Whhen the appealer dealed with the buisiness of lending loan, he kept conformity with the stipulations about checking up the buiness,which are respectively given in Artide one,clause 35 and in clause 36 on Agu. 7th,2002,the appealer gave a detailed statements about his examination: In December, 1996,Mr.Li, the director of exchange secticon, hand in the appeler a stamped loan contract and Some materials relevant to the debtor , and had him lent a loan of ￥800,000RMB.Through those materials ,the appealer knew that the debtor was QHHC and same report forms and relating materials she handed in are all in line with the requirements of credit, The guarantee is Qingdao Lao dong fang Furniture Ltd., co.According to the stuplations given by the rules and regulations issueded at that time ,the appealer made a strick examinations of debtor and his guarantce’s qualificaticns and their finuncial states, at the mean while,he also made definations of the kinds of the loan and currency, the purpose, the amount ,the interest rate, the dead line as well as repay term and violation duty.The《Contract of Short Term Loan in RMB》and the 《Guaruntee
Contract》signed by both of the commercial bank and the QHHC,are entirely in line with the《Regulations of Loan Contract》issueded by the state concil
on Feb.28th, 1985,and have conformed with the formal requirement repulated in clause Five ,and with the substantial one repulated in clause Six as well.
    In transacting the loan ,the appealer, first of all, checked up all the loan in- formations according to the loan clerk’s obligations and competences conferred by the authorities of the commercial bank he worked in .After the contract was singned,he summited it to the manager in charge of loan, After the manager approved it, he also summited the contract to the vice director of the bank for re-approving. All of the business about the loan,such as loan contract ,guarantee contract ,bank’s acceptance agreement ,guceruntee certification for acceptance, are executed on the hereabove procdure . Form the stipulations in clause Five and in Article 1,clause sis ,Both of which are seen in the 《Temporary Method of examination after lending loan of Chinese Industrial and Commercial Bank》,we can say that the commercial bank’s lending the loan have been dong in line with her general bank’s requirements.
    2、The appeler’s transferring loan venture is the corporation sbehaviour authorized by the legal transfer of contracter’s obligation between the two equal parts.
    In the 《Report of Transfering Loan Venture》of the commercial bank , there are the details about the cause of transferring venture , the financial states of QHSC, the bearer of the venture and the amount of the transferred loan and so on.The report was submitted to the superior-level bank authorities on the procedure .And the loan application was respectively stamped and signed by the QHSC and her legal representative, and the amount of the loan is ￥2,350,000RMB, The date of repay is Oct .16th,1999, the purpose of lending the loan is to transfer the loan ventacre. The report was written by the appealer, and Submmitted by Mr.Li, the Section director, approved by Mr.Xu,
the vice-director of the bank. According to the《Temporary Managing Method of the Commercial Banks’Attoney and Trust》,we can know that the appealer’s transaction of transferring loan venture are in line with the Clause nine and the Artides one and two, Clause eleven. On the other Side, his behaviour in the bisiness is authoreied by the commercial bank and is of a legal behaviour.
    According to the stipulations in the Clause eighty-four ,《Law of contract》, the QHHC and sanri Co. have transfered the loan of ￥2,350,000RMB and Its interst to the QHSC, the third part ,and obtained the consent of creditor .And the third part has gone into the《Short-term loan contract in RMB》with the comnmercial bank on Dec.17th,1998.The purpose of the loan appears a very distinct meaning, namely, transfering the loan venture (See Clause two, the con- tract).To transfer the obligaion of the loan contract is a real wish expression of QHSC, the third part .And that is of a legal and effective civil law behaviour when signing the contract, the QHSC offered all the necenary witness for the loan ,which proved the fact that what QHCS signed the contract of transferring the loan to herself and beared the credit which the former debtor should bear are out of her will. The new contract that the commercial bank has come to with the QHSC is given a grarantee by Qingdao Sushi Chemistry Ltd.co.(Shorted as QSCC). So, since the old contract’s duties have been transferred, the guarantee duty of the former guarantor is released.
    On Apr. 7th,2003,the public procurate made an investigation on the legality of transferring loan venture,and he contacted with the supereir level leader of the financial administrating organ. And they considered that the contract has given a distinct definition of the purpose of transfering the venture, that is, repay the debte through transferring the loan to the other debtor .However, that is clearly known by the new debtor enterprise, and there is no illegal behaviour of the bank’s clerk. As long as the contract’snecessary conditions are in readiness and be examded and approved through the provided procedure, the executing clerk has no problem to be looked into. All the commercial banks have their respective stipulations on this aspect. Provided that those stipulations don’t violate the commercial bank law and general credit rules, the banks transact the business respectively and do their best efforts, the loan veuture would be reduced to its minimum. In result, they made a full confirmation to the legality of transfering loan venture.
    In (2000) QJC No.24 written judgement, the Qing dao Middle Class people’s court has confirmed the loan obligation beared by the QHSC as a lawful and effective debte, and judge QHSC to repay the loan. During the implement, the QHSC conducted a cooperative manner in carring out the jugement which has gone into effective, and several times, she wrote to the court to express that she was willing to execute the jugemente, at the same time, she asked the commercial bank to allow her repaying all the loan of 3,500,000 RMB in number by the means of borrowing new debte to repaying old one.
    3、There is no any loss in the appealer’s lending loan and transferring loan venture, and the objective necessary conditions of crime of illegal lending loan are not be formed.
    It does not make up the basic standard of loan loss for QHSC to owe the Qing dao commercial bank,shinan Branch the transfered debte.
    The stipulations in Article one, Clause three of the 《Anncuncement of Entirely Developing the Business of Loan’s Five—Class Classification》say that if only the debtor enterprises are legally canceled, closed or be dismissed and be verified that she has no ability to repay the loan, the loan loss can be confirmed. While the QHSC is of a debtor who is carrying on his business normally and has capacity to repay the loan and its interests.
    There have no lawful procedure requirements in the confirmation of loan loss made by the first trial court, So—called the loss of loan is that “the loan and its interest fail to be recovered or be collected a farthing in case of all the possible methods and necessary lauful means being taken”. In fact, there is no loss in the loan of the case,because the civil obligations of QHSCand her guarantor,QSSC have been confirmed by Qing dao Middle Class people’s Court in her (2000)QJC No.24 Civil jugement,and the written jugement had had a compelled executing effectivety because of the commercial bank has applied for a compelled excution. And the court has sealed up the QHSC’s machinaries and equipments on Nov.8th,2000;while the guaranter,QSSC has abidity to bear the joint liabilinty in executing the effective jugement.From abovementioned causes,We can see there has no factual or legal basis in the conclusion made by the first trial court about that “resrlt in the loan fails to be collected on due time, and a grand loss has been made”.
     4、The appealer is not guilty of crime, even not joint intentional guilty.
    From the whole case, We can learned,that no matter What he transferred the venture of the loan of ￥2,350,000 RMB, or actively collect fund to compensate the former loan is that he has done his best to prevent the national fund from the loss due to non—perform loan. The relation between Mr.Li and the appealer is merely leading and being led in business due to their superior and inferior positions.And Their cooperation in business is appointed legally by the commercial bank, of course, that doesn’t make up the necessary conditions of joint guilty.
    According to the hereabove statements, I, apologist of the appealer, Come to a conclusion,that is, the appealer dosn’t made any loss. In case of objectire imputation, the appealer’s behaveour isn’t in line with the objectire conditions of the crime of illegal lending loan stipulated in Atical Two, Clause 128 of 《Criminal Law》.In addition, the appealer has carried out the legal duty of examination according to the requirements of law and regulations at that time.So, the appealer should be confirmed to be innocent.
    The appeal court has taken apolpgist’s pleading opinion and consider that the appealer’s behaviour is of extremely light harmful to the society and should not be passed a sentence.
    The final jugement declared: to cancel the first trial jugement and pronounce the appealer to be innocent.


 

Guangxi kuangyuan law office          


 

Lawyer:Zhao-Chengmin（中文：赵成民） 

           Wu-xianfeng（翻译：吴贤枫） 

           Yu-ziyi （中文和英文校核：于紫伊）   

                   26-07-2013