Conspiracy and fictitious debt disputes are charged proportionally
False litigation to arbitrage provident fund black assets revealed
● When the debtor has no other property to execute, the court solved the enforcement problem to a certain extent by enforcing the housing provident fund of the person subject to enforcement.
However, some criminals took advantage of this enforcement measure to start a "business" of obtaining personal housing provident fund through false lawsuits.
● Fictitious debt disputes and then arbitrage housing provident funds through false litigation forms have formed a black industrial chain, and the operators in the chain charge handling fees, up to 50% of the arbitrage funds
● Through the sword of law, cut the chain of false lawsuits to obtain housing provident fund, so as to ensure the safe and stable operation of the provident fund system
□ Rule of Law Weekend reporter Liu Xiping
"In order to obtain economic benefits, the defendant Zhang maliciously colluded with Chen, Yan, Zhou, and Qin, and filed a civil lawsuit for fictitious debts and collected 110,000 yuan of housing provident fund, and charged 10% to 15% of the handling fee... …"
Recently, the People's Court of Longshan County, Hunan Province made a first-instance verdict on Zhang's case of obtaining housing provident fund through false litigation. Defendant Zhang committed the crime of false litigation and was sentenced to one year's imprisonment, suspended for two years, and fined 10,000 yuan.
Housing provident fund refers to state agencies and public institutions, state-owned enterprises, urban collective enterprises, foreign-invested enterprises, urban private enterprises and other urban enterprises and institutions, private non-enterprise units, social organizations and their employees, paid and deposited on an equal basis Long-term housing savings.
Since the purpose of the housing provident fund is to guarantee basic housing, all localities strictly control the withdrawal conditions. Generally, the individual housing provident fund can be withdrawn only when the owner-occupied housing is purchased, constructed, rebuilt, or overhauled.
In recent years, in order to arbitrarily obtain individual housing provident fund, some people have started the crooked idea of using false lawsuits to obtain housing provident fund.
People familiar with the matter revealed to reporters that there are certain operating methods for obtaining housing provident fund through false litigation. First, the two parties conspired to construct a fictitious debt dispute, then go to the court to sue and create false litigation, and finally through the court to enforce the funds in the housing provident fund account.
After the housing provident fund is in hand, the operator will charge a high handling fee according to a certain proportion.
"False litigation for housing provident funds has formed a black industry chain in some places, which urgently needs the attention of relevant departments." The person familiar with the matter said.
So, how did the black industry chain of false litigation arbitrage the housing provident fund come into being?
How to use the sword of law to cut off this chain of black production?
Provident metal personal property
Conditions can be enforced
The reporter learned during the interview that whether the court can enforce the individual housing provident fund has been controversial in the judicial practice circle.
One opinion holds that the housing accumulation metal is owned by individual employees and the court can allocate it unconditionally; another opinion holds that housing accumulation metal cannot be allocated to social security funds.
Prior to this, the Anhui Higher People's Court had asked the Supreme People's Court for instructions on whether the court can compulsorily allocate the housing provident fund of the person subject to enforcement.
The Supreme People’s Court issued a reply to the Anhui Higher People’s Court stating: “It meets the requirements of Article 24 of the State Council’s “Regulations on the Administration of Housing Provident Funds” for withdrawing the deposit balance in the employee’s housing provident fund account. In the case of living and living conditions, the enforcement court can enforce enforcement on the balance of the deposit in the housing provident fund account of the person subject to enforcement."
Liu Chuang, assistant judge of the Executive Bureau of the People’s Court of Yuhua District, Changsha City, Hunan Province, believes that in accordance with Article 3 of the Regulations on the Administration of Housing Provident Fund, the housing provident fund paid by individual employees and the housing provident fund paid by the employee’s unit for the employee belong to the employee Personally owned.
“Because the housing accumulation metal is in personal property, it can be at the disposal of the individual. If an individual refuses to perform the obligations determined by the effective legal document, the court has the right to take enforcement measures such as freezing, transfer, etc., if certain conditions are met." Liu Chuang said.
The reporter noticed that before the law was further clarified, some provincial people's courts began to try to jointly formulate documents with the housing provident fund management department to standardize the implementation and assist in the implementation of dispute resolution methods.
On May 17 this year, the Hunan Provincial Higher People’s Court and the Hunan Provincial Department of Housing and Urban-Rural Development jointly issued the "Several Opinions on Establishing a Housing Provident Fund Enforcement Linkage Mechanism", to query, freeze, and deduct relevant conditions for the housing provident fund in enforcement cases. And specific procedures are specified in detail.
This opinion stipulates that in an enforcement case, the people’s court shall, after investigating the real estate, land and other real estate, bank deposits, motor vehicles, and corporate equity under the name of the person subject to enforcement, determine that it has no assets available for enforcement or insufficient assets. When paying off debts, while guaranteeing the basic living and living conditions of the person subject to enforcement, and meeting the prescribed circumstances, a decision may be made to deduct the housing provident fund.
Fake lawsuit arbitrage provident fund
Disturb the order and affect badly
The debtor has no other property to enforce, and the court solved the enforcement problem to a certain extent by enforcing the housing provident fund of the enforced person.
However, some criminals have also begun to take advantage of this enforcement measure to start a "business" of obtaining personal housing provident fund through false lawsuits.
Zhang, 30, is a native of Longshan County, Hunan Province.
Although he has a college diploma, he has never found a job.
By chance, he learned of a "how to get rich", that is, through false lawsuits to help others obtain housing provident fund, and then charge a certain fee.
In 2019, Zhang began to test the waters of this "road to wealth."
Chen works in a unit in Longshan County. He has nearly 40,000 yuan in his housing provident fund account, but because he does not meet the conditions for withdrawing the housing provident fund, Chen’s housing provident fund has not been withdrawn.
Hearing that Zhang could take out the housing provident fund set by fighting a "fake lawsuit", Chen readily agreed to "cooperate" with Zhang.
Subsequently, Chen and Zhang signed a false loan agreement, that is, Chen borrowed 40,000 yuan from Zhang at an agreed monthly interest rate of 2%.
Because Chen could not repay the due "debt" on time, Zhang sued Chen to the Longshan County People's Court.
After court mediation, Chen expressed his willingness to repay the due "debt", and the Longshan County People's Court issued a civil mediation statement.
Four days later, Zhang immediately applied to the Longshan County People's Court to enforce this civil mediation statement.
The Longshan County People's Court found through inquiries that Chen had 39,000 yuan in the housing provident fund account. The court then transferred this housing provident fund to the agricultural bank account of the applicant Zhang as the execution fund.
After receiving the payment, Zhang paid 12,050 yuan to Chen, and failed to pay the remaining 26,950 yuan to Chen for various reasons.
Zhang, who has tasted the sweetness for the first time, believes that there is no legal risk for obtaining housing provident funds through false litigation as long as the parties do not report.
As a result, he began to "accept orders" frequently.
Yan in Longshan County also wanted to take out more than 70,000 yuan in his housing provident fund account, so he signed a false loan agreement with Zhang.
The agreement agreed: "Yan borrowed 68,000 yuan from Zhang at a monthly interest rate of 2%."
Because Yan was unable to repay the loan on time, Zhang sued Yan to the Longshan County People's Court.
After mediation, the Longshan County People's Court issued a civil mediation statement.
On March 31, 2020, Zhang applied to the Longshan County People’s Court to enforce this civil mediation document. The court transferred Yan’s 77435 yuan housing provident fund as the execution fund and transferred it to Zhang’s bank card.
Zhang deducted 11,000 yuan of handling fees at a rate of 15%, and the remaining part was not paid to Yan.
In this way, Zhang tried the same way four times to help others obtain housing provident fund, one of which was found by the court and led to the case.
On April 15 this year, Zhang was convicted and sentenced by the Longshan County People’s Court for the crime of false litigation.
Form a black industrial chain
Charge high processing fees
According to the reporter's investigation, fictional debt disputes and then using false litigation to obtain housing provident funds have formed a black industrial chain, and the operators in the chain charge handling fees, up to 50% of the arbitrage funds.
On December 2, 2017, Qiu Mouhua from Shaoguan City, Guangdong Province intended to illegally arbitrage funds in his provident fund account. He met Zhong Mou of an investment company in Shaoguan City through a friend introduction, and Zhong promised to help Qiu Mouhua withdraw funds 92,000 yuan in the provident fund account, and then charge a handling fee of 22,000 yuan.
Subsequently, Qiu Mouhua and Zhong Mou signed a false loan contract of 92,000 yuan, and Zhong Mou prepaid 70,000 yuan to Qiu Mouhua.
On December 4, 2017, Zhong filed a civil lawsuit with the Wujiang District People's Court of Shaoguan City with the false loan contract.
On December 26, 2017, the Wujiang District People's Court ruled that Qiu Mouhua repaid Zhong Mou 92,000 yuan based on the false loan contract submitted by Zhong Mou.
On February 12, 2018, Zhong applied to the Executive Bureau of Wujiang District People's Court to enforce Qiu's housing provident fund.
During the execution, the Wujiang District People's Court discovered that the two had falsely signed a loan contract and fabricated debts, and therefore imposed a fine of 20,000 yuan on Zhong.
In addition to the fine, Zhong was also held criminally responsible.
On June 16, 2020, the Wujiang District People's Court found the defendant Zhong to be guilty of false litigation, sentenced him to nine months in prison and fined him 20,000 yuan.
Zhang, who was born in Changchun City, Jilin Province, is a “professional cashier” who obtained housing provident fund through false litigation.
Beginning in 2015, Zhang came to Liaoning Province to help others obtain housing provident fund through false lawsuits, with varying rates of handling fees.
From November to December 2015, Zhang took a personal housing provident fund of RMB 72,500 for Wang, from which he received a handling fee of RMB 16,000.
From November to December of the same year, Zhang took a personal housing provident fund of 41,300 yuan for Ding, from which he received a handling fee of 19,000 yuan.
One time Zhang charged the highest handling fee was to help Sun cash out.
From January to March 2016, Zhang helped Sun to withdraw 82,000 yuan of personal housing provident fund, from which he collected a handling fee of 40,000 yuan, and the handling fee reached nearly 50% of the funds withdrawn.
The Liaohe People’s Court of Liaoning Province found out that from November 2015 to August 2016, Zhang filed a civil lawsuit with the Liaohe People’s Court for 44 times with a fictitious debt relationship and assisted others in arranging individuals by way of court enforcement. The provident fund totaled more than 3.043 million yuan, and Zhang made a profit of more than 643,000 yuan.
On February 7, 2021, the Liaohe People's Court of Liaoning Province ruled that Zhang was guilty of false litigation, sentenced him to three years in prison and fined him 50,000 yuan.
Standardize management and strengthen sharing
Plug loopholes and ensure safety
The practice of "hand in hand" mediation to close the case and then to implement the housing provident fund through the courts has attracted the attention of my country's judicial organs. Judicial organs in various regions have also begun to use legal weapons to combat such violations of laws and regulations.
Some media have disclosed that in April 2018, the People’s Procuratorate of a county in Heilongjiang Province discovered during the handling of the case that hundreds of mediation cases with housing provident fund as the subject of execution in the courts of that county all had agreed jurisdiction, the case was closed on the day the case was opened, and the evidence was only loans Voucher without the characteristics of proof of transfer.
The procuratorate's investigation found that Guo, in the name of himself, his daughter, son-in-law and others, filed a lawsuit with the court with fictitious creditor's rights.
After the court issues a mediation statement, the mediation statement is used to implement the housing provident fund of the other party.
From July 2017 to April 2018, Mr. Guo successively collected more than 6.2 million yuan in housing provident fund for 128 people, and made more than 400,000 yuan in profit from it.
The county procuratorate found that in order to obtain the housing provident fund illegally, Guo had maliciously colluded with others, fabricated evidence, fabricated the facts of borrowing, and caused the court to issue an incorrect civil mediation statement. This behavior not only hindered judicial order, but also seriously damaged The order of housing provident fund management has been improved.
Therefore, the procuratorate issued a retrial procuratorial proposal to the court, suggesting that the 128 civil mediation documents of Guo and others suspected of false litigation should be cancelled.
Ma Xianxing, the chief prosecutor of the People's Procuratorate of Yuhua District, Changsha City, Hunan Province, who has always advocated "lawsuit anti-counterfeiting", is currently the director of the Judicial Integrity and False Litigation (Arbitration) Governance Research Center of the Changsha Law Society.
Ma Xianxing believes that the act of arranging housing provident fund through false litigation not only disrupts the normal management order of housing provident fund and violates the rights and interests of the majority of depositors, but also disrupts the normal judicial order and undermines social fairness and justice. It should be severely dealt with. Blow.
According to Ma Xianxing, on November 1, 2015, the Criminal Law Amendment (9) was formally implemented, and the crime of false litigation was added to the amendment to punish the frequent false civil lawsuits.
"The use of false lawsuits to obtain housing provident funds has risen to the scope of criminal strikes, to a certain extent, it can effectively deter such criminal acts."
The reporter searched through the China Judgment Documents website and found that similar behaviors of obtaining housing provident funds through false litigation have been convicted and sentenced by many courts for false litigation crimes.
"Through extensive publicity and guidance, improve internal management, promote information sharing and other means to close the housing provident fund supervision loopholes. At the same time, through the sword of law, cut off the chain of false lawsuits to obtain housing provident funds, so as to ensure the safe and stable operation of the provident fund system ." Ma Xianxing said.
Cartography/Gao Yue