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Qualitative Analysis of Illegal Stock and Futures Investment Platform
Wang Weidong lawyer
In recent years, the perpetrators of the establishment of illegal online stocks, futures, funds, precious metals and other trading receipts, fictitious trading platform to trade stocks, futures, funds, precious metals and the like, to trick investors into investment, in essence, such transactions Platform and did not link the real Shanghai and Shenzhen stock markets and the major futures markets and precious metals trading market, the perpetrators through the real Shanghai and Shenzhen stock market index and futures, funds, precious metals prices and investors arbitrage arbitrage. There is a lot of controversy about the behavior of such behavior of the perpetrator, and there is a crime that is a crime of fraud and a view that it is illegal. On the case of illegal possession of such cases, the Supreme People's Court "Criminal Trial Reference" No. 1021 case has been described, the case is contained in the "Criminal Trial Reference" 2014 the fifth period, the total 100, but the practice is still controversial exist. I try to undertake a case to be assessed.
Basic case: Chen and others to invest in the establishment of a stock trading platform, and promote the platform can be T +0 transactions and a ten-pole investment to attract investors, the platform in accordance with the Shanghai and Shenzhen stock market trading prices and investors Settlement, the profit and loss of investors according to the ups and downs of the target investment to calculate, while investors can withdraw from the investment funds at any time. After the case, the prosecution prosecution to prosecute Chen and others, the basic logic of the charges, Chen and others for the purpose of illegal possession, fictitious trading platform to trade the stock facts, to conceal the truth, cheating investors money The I believe that the public authorities are not allowed qualitative, Chen and other acts should be illegal business crime. Specific analysis is as follows.
First, on the purpose of illegal possession.
In this case, the customer into the trading platform of funds with "three self-compliance" features. In short, the "three self" refers to the customer's free access to funds, customers buy up or buy their own decisions, customers are profitable profitable; "no" refers to the customer into the gold does not lose money after the Control is still dominated by capital authority; "two compliance" refers to both the customer and the platform are in strict accordance with the Shanghai and Shenzhen A shares of the stock price and customer transactions at the time of settlement, the settlement rules transparent and rigid, this rule has been the customer's Compliance, but also by the trading platform to comply.
Combined with the customer investment funds with the "three self-compliance" features, can clarify the following six questions.
1, on the company where the company made Chen into the gold after the disposal of the situation. After the customer into the gold, the part of the funds although the transfer of possession, but the customer does not lose control of the part of the funds. In other words, the platform occupies funds, but does not dominate the funds, customers dominate the funds, but not possession of funds. The customer's dominant behavior is the use of funds to participate in transactions and withdrawals, and the customer's disposition of funds has a certain exclusion, exclusivity is reflected in the platform needs to meet and achieve the customer's dominant behavior, passively according to the customer's trading instructions, Rising and falling A-share market data, with customers between the settlement, and at any time to provide customers with gold service.
2, on the customer based on voluntary disposition of property (expressed as buying and selling investment behavior) the ultimate attribution. The customer is determined by the fact that the property is ultimately attributable to the company or to the customer, whether it is value-added or shrink, depending on the customer's investment effect. In the case of customer profit or flat, the customer does not have property damage, and customers can always take out their own profit part and investment principal; in the customer's judgment and the Shanghai and Shenzhen A shares market contrary to the case, the customer will have a loss, The customer's losses will eventually be obtained by Chen company, but even in the case of customer losses, the client's investment principal minus the amount of the loss of the remaining part of the customer is still owned by the customer can be removed at any time the amount of the remaining amount.
3, on the compliance with the rules of the transaction. There is a trade rule between the company (the trading platform) and the customer that needs to be mutually agreed by both parties. The trading rules stipulate the rights and obligations of both parties, that is, the constraint of the customer and the binding platform. The core of the rules is based on the ups and downs of the customer's investment The amount of settlement and customers come and go free. In this case, all the victims are recognized trading platform client price and real market stocks stock price volatility consistent, regardless of whether the customer is profitable or loss, customers have the right to empty the account at any time, to get back their investment, Chen's company from beginning to end And strive to protect the customer's freedom of sale and entry and exit free.
4, after the transaction settlement after the attitude. Trading platform on the customer's investment in accordance with the ups and downs in Shanghai and Shenzhen A shares after the settlement with the customer, did not escape or change the contact information, hidden office address, but continue to receive customers, customers choose to continue to invest or emptied funds, Customer independent decision.
5, on the factors that determine the profit and loss of customers and customers "misunderstanding". In this case, the vast majority of the victims in the investment when there is compensation, make sure the customer investment profit and loss factors are three: First, the customer choose to trade the stock varieties; Second, the customer when the price of buying and selling stocks; Third, the number of customers trading. Customers buy up after the stock did rise, the result is profitable; customers buy up after the stock fell, the result will be a loss. The above three factors are not Chen's company (trading platform) can control and fictional, affect the three factors of the variables do not depend on the trading platform itself, the Shanghai and Shenzhen A-share market and individual stocks and the customer's own trading intent And the vision and the risk of retail investment is the impact of the three factors of the external factors and internal factors. That is, the profit and loss of the customer after the deposit and the trading platform itself has no causal relationship. Needless to say, in this case, the trading platform to provide more than one thousand shares of the trading business fictional, T +0 trading mechanism, long and short two-way open and one to ten magnification financing ratio is fictional, objectively speaking, The defendant fictitious trading platform can trade the stock of this lie, but also the victim based on misunderstanding and the disposition of property this behavior, more victims of the loss of the results, which seem to meet the defendant constitutes an objective element of fraud, but the victim ( Customer) for the wrong understanding of the trading platform and the loss of the property between the customer there is no criminal causal relationship. The customer is based on the misunderstanding of the trading platform and participate in the transaction, but the error does not necessarily lead to customer losses, the victim (customer) profit and loss is based on the victim's own ups and downs of the Shanghai and Shenzhen A stock market awareness, And this understanding is determined by the customer autonomy, Chen's company is not a fictional fact to conceal the truth so that the customer caught in the wrong ups and downs judgments, resulting in a loss. Therefore, in this case, although there are fictitious facts, but the fictional fact and the loss of the victim there is no criminal law between the causal relationship.
Second, the amount of loss on the victim.
In this case, at the time of the incident by the public security organs frozen in the platform account of the victims of the funds can not be included in the loss of the victim, the customer can not take part of the funds are not blocked by Chen and others, and customers have not lost the funds control. In the case of the court investigation, the prosecution made a description of the amount of customer losses, the prosecution's point of view is the crime of fraud has not yet returned the amount of money should be included in the amount of fraud. The defendant on the amount of fraud on the point of view, the defenders are recognized, but this is the purpose of the defendant has the purpose of illegal possession and qualitative fraud under the premise of the defendant did not illegally occupied the purpose of fraud, then, because the public security organs of the detention freeze Resulting in the amount of investment that the customer can not take can not be included in the loss of the customer within, because, objectively, the customer did not lose the part of the funds.
To sum up, in this case, although there are fictional facts to conceal the truth, there is a great deal of confusion in qualitative. However, because the investors for the investment of funds did not lose control, so the fraud in the sense of illegal possession does not exist in the case. Therefore, such cases, because investors come and go freely, and investors and actors to comply with the rules of trade, so, can not set up fraud, should be characterized as illegal business crime.