Legal Interpretation of Wu Xiaohui’s Case —— Interview with Ruan Qilin, a professor at China University of Political Science and Law
Xinhua News Agency, Shanghai, March 28th Title: Legal interpretation of Wu Xiaohui’s case — — Interview with Professor Ruan Qilin of China University of Political Science and Law
Xinhua News Agency reporter Chen Fei, Huang Anqi
On March 28th, the Shanghai No.1 Intermediate People’s Court held a trial in the first instance to hear the case of Wu Xiaohui, the former chairman and general manager of Anbang Property Insurance Group Co., Ltd., who was suspected of fund-raising fraud and duty embezzlement. Weibo, the official of Shanghai No.1 Intermediate People’s Court, made a summary of the trial. The reporter interviewed Professor Ruan Qilin, an expert in criminal law and China University of Political Science and Law, and asked him to analyze and interpret the main legal issues involved in this case according to the facts and evidence of the case published by Guan Wei of Shanghai No.1 Intermediate People’s Court, as well as the relevant information published by relevant departments and media before.
Reporter: From the main criminal facts and evidence that the procuratorate accused the defendant of being suspected published by Weibo, the official of Shanghai No.1 Intermediate People’s Court, how do you think to evaluate the nature of these behaviors of the defendant in criminal law? What kind of serious social harm do these behaviors have?
Ruan Qilin: Defendant Wu Xiaohui used Anbang Property Insurance as a financing platform, and the amount of illegally selling investment-type insurance products exceeded the scale approved by the China Insurance Regulatory Commission, reaching more than 720 billion yuan, which was illegal. According to Article 1 of the Supreme People’s Court’s Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Illegal Fund-raising Cases, (1) those who, without the approval of the relevant departments according to law, (2) publicize in the society, and (3) promise to repay the principal and interest or pay a return, and absorb funds from the public are illegal to absorb public deposits. Although Anbang Property Insurance controlled by Wu Xiaohui has been approved by the relevant departments to issue investment-type insurance products according to law, it is far beyond the scale of sales approved by the China Insurance Regulatory Commission (over-raised), and the over-raised part should be considered as "not approved by the relevant departments according to law", which is illegal. Its over-raised part is staggering, reaching more than 720 billion yuan, which contains great financial risks and has extremely serious social harm.
Defendant Wu Xiaohui, in the above-mentioned illegal fund-raising process, first, used deception to secretly increase the capital of Anbang Group and Anbang Property Insurance by over-raised premium funds of more than 77 billion yuan. According to the relevant regulations, shareholders must increase their capital to insurance companies with their own funds, and Wu Xiaohui secretly converted the premium funds raised in excess into shareholders’ funds as capital increase for Anbang Property Insurance and Anbang Group, which violated the law and invented solvency to the CIRC and the public. At the same time, Wu Xiaohui manipulated Anbang Group and Anbang Property Insurance to modify profits, adjust data, disclose false information, and continue to make false propaganda to the public. Deceive the public to buy its investment insurance products, resulting in a sharp expansion of the scale of over-raising. Second, illegal possession of huge illegal fund-raising funds (over-raised premiums). After Anbang Property & Casualty sold investment insurance with a predetermined income in its own name, according to Wu Xiaohui’s request, it concealed the over-raised premium to Anbang Group or transferred it to the industrial company actually controlled by Wu Xiaohui, leaving the supervision of the China Insurance Regulatory Commission and other regulatory authorities, thus realizing the purpose of Wu Xiaohui’s illegal possession of huge premium funds by himself or through the industrial company actually controlled by himself, and actually causing a fund gap of 65.2 billion yuan. Wu Xiaohui can only repay the old premium gap with new premium income, and so on, with the Ponzi scheme. According to Article 192 of the Criminal Law, "those who illegally raise funds by deception for the purpose of illegal possession … …” It constitutes a crime of fund-raising fraud.Wu Xiaohui used deception to illegally raise funds and illegally took some of the funds for himself, which was suspected of constituting a crime of fund-raising fraud.
At the same time, the defendant Wu Xiaohui took advantage of his position to instruct others to transfer the original Anbang property insurance premium to the industrial company he actually controlled for his own use by means of transfer without accounting, which met the constitutive requirements of the crime of occupational embezzlement, and the amount was 10 billion yuan, which was extremely huge.
Reporter: We noticed that the defendant’s illegal fund-raising behavior in this case was carried out by insurance institutions. In judicial practice, how to determine the illegality of the actual controller using legal financial institutions to raise funds illegally? How to identify its criminal purpose? How to distinguish between unit crime and individual crime of natural person?
Ruan Qilin: These questions you asked are very professional. First of all, about the illegality of this behavior. Although Anbang Property Insurance is a legal financial institution, its issuance of investment-type insurance products must be approved by the CIRC according to relevant regulations. It is illegal to sell investment insurance products without the approval of the CIRC or beyond the sales scale approved by the CIRC. Because super-scale sales and illegal fund-raising have the same financial risks and are equally harmful to investors. Moreover, because it is a legal financial institution, it is easier to gain the trust of the public, and it can quickly expand the scale of illegal fund-raising to form greater financial risks, which is more harmful to society. The scale of illegally raised funds in this case has rapidly expanded to more than 720 billion yuan, which is closely related to Wu Xiaohui’s use of the signboard of Anbang Property Insurance legal financial institutions. After the incident, the relevant government departments immediately took over Anbang Group, which reflected the seriousness of the financial risks it created and forced the government departments to take over. In recent years, illegal fund-raising cases, such as the largest "Easy Rent Treasure" case, involved only tens of billions of yuan, which is a drop in the bucket compared with the scale of illegal fund-raising in this case. The amount that this case was illegally occupied and could not be returned reached more than 65 billion yuan, far exceeding the fund-raising fraud cases such as "Easy Rent Treasure".
Secondly, about the defendant’s criminal purpose. According to Article 2 of the Supreme People’s Court’s Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Illegal Fund-raising Cases, if illegal fund-raising by deception has one of the following circumstances, it can be considered as "for the purpose of illegal possession": (2) wantonly squandering fund-raising funds, resulting in the non-return of fund-raising; … … (5) Evading, transferring funds, concealing property and evading the return of funds; … … (8) Other circumstances in which the purpose of illegal possession can be identified. In this case, the defendant used fictitious equity investment, false shareholder dividends and other means to transfer the investment-type insurance product funds raised by Anbang Property Insurance to the industrial company actually controlled by him for possession and use, and has caused more than 65 billion yuan of premium funds to be returned. Enough to identify the purpose of illegal possession.
Third, whether it is a unit crime or an individual crime. This case should be considered as an individual crime such as the defendant, and should not be considered as a unit crime. First, the unit crime should reflect the unit will, while the management of Anbang Group, Anbang Property Insurance and other Anbang companies all reflect Wu Xiaohui’s personal will, which does not conform to the company’s operating rules and cannot make Wu Xiaohui’s personal will rise to the unit will. Second, the essential feature of unit crime is "for the benefit of the unit". A large number of facts in this case show that Wu Xiaohui made a personal decision and sought personal interests. According to Article 3 of the Supreme People’s Court’s Interpretation on Relevant Issues Concerning the Specific Application of Law in the Trial of Unit Crimes: "Whoever embezzles the name of a unit to commit a crime, and the illegal income is divided among the individuals who commit the crime, shall be convicted and punished in accordance with the provisions on crimes committed by natural persons". In this case, Wu Xiaohui illegally took tens of billions of premium funds for himself, which should be considered as a natural person crime. At the same time, in this case, Zhongyuan Anbang Property Insurance and Anbang Group had to bear the responsibility of paying more than 720 billion yuan of wealth management products illegally raised by Wu Xiaohui and others because of their illegal fund-raising and illegal possession of premium funds. It has suffered huge economic losses and financial risks, and it is also a victim.
Reporter: Generally, fund-raising fraud cases will cause great losses to fund-raising participants, but there is no actual loss of the insured in this case. Excuse me, Professor Ruan, does this situation affect the criminal evaluation?
Ruan Qilin: Actually, Anbang Property Insurance has already taken great risks. According to today’s trial, the total assets of Wu Xiaohui’s personal and industrial companies at the time of the incident were far below the funding gap. Wu Xiaohui has hollowed out Anbang Property Insurance by using false capital injection, false investment, and various pretexts to transfer premiums. Once the capital chain breaks, millions of investors will suffer huge losses. Fortunately, the government supervision department found the huge redemption risk in time, took over Anbang Group urgently, and went all out to prevent the risk from expanding. That is to say, the actual loss of investors has not yet occurred in this case, which is entirely due to the fact that the government regulatory authorities prevented Wu Xiaohui and others from committing crimes of illegal fund-raising and taking over Anbang Group. This should not reduce Wu Xiaohui and others’ guilt of encroaching on the original Anbang property insurance and Anbang Group property, using fraudulent methods to illegally raise funds and illegally occupying fund-raising funds.
Reporter: Wu Xiaohui’s two criminal facts in the prosecution are that he took the funds of financial institutions as his own, but some of them were identified as fund-raising fraud and some as duty crimes. Why are these two parts of criminal facts evaluated differently in law? Why can’t it be regarded as the crime of illegal use of funds?
Ruan Qilin: In the case of basically the same criminal modus operandi, the public prosecutor found that Wu Xiaohui constituted the crime of fund-raising fraud and the crime of occupational embezzlement respectively. The criteria for such identification were based on the nature of illegally occupied funds.
Generally speaking, after an investor buys the products of an insurance company, the funds are actually owned and controlled by the insurance company, and the actual controller’s transfer of possession by taking advantage of his position should be regarded as a duty crime or a crime of illegal use of funds. All the illegally occupied funds come from Anbang’s legal premium income.
In order to obtain a large amount of funds, the actual controller used financial institutions as a tool to illegally absorb funds from the public. For example, in this case, Wu Xiaohui sold investment-type insurance products beyond the scale approved by the China Insurance Regulatory Commission, which was illegal in fund-raising, and the defendant illegally transferred and occupied the huge amount of funds in illegal fund-raising. The illegally occupied funds came from the premium funds of investment products that Anbang had overpaid (illegally raised funds). In illegal fund-raising, using deception to illegally raise funds and transfer the illegal fund-raising funds for possession is a related act under the deliberate control, that is, illegal fund-raising and illegal possession of fund-raising funds, which cannot be divided and should be evaluated as a whole. Therefore, it is reasonable to identify this part as fund-raising fraud.
The crime of illegal use of funds is the illegal use of funds managed by the relevant management institutions in violation of state regulations. This crime cannot cover or include illegal sources of funds and illegal possession of funds. Wu Xiaohui, the defendant in this case, used Anbang Property Insurance to sell insurance products beyond the approved scale, which was illegal fund-raising, and this illegal fund-raising behavior could not be included in the crime of illegal use of funds. That is to say, the crime of illegal use of funds can only evaluate the illegal use of funds, but it cannot or is not enough to evaluate the illegal source of funds, that is, it cannot include the evaluation of illegal fund-raising behavior. For Wu Xiaohui’s illegal fund-raising behavior, only the crime of illegally absorbing public deposits or the crime of fund-raising fraud can accurately evaluate the illegality of his obtaining funds. In addition, the crime of illegal use of funds can not cover the illegal possession of funds, and the crime of fund-raising fraud can include not only the illegal acquisition of funds, but also the illegal possession of illegally acquired funds, as well as the domination, use and punishment on the basis of illegal possession. Therefore, only the crime of fund-raising fraud can completely evaluate Wu Xiaohui’s illegal fund-raising and illegal possession of illegally raised funds. If the crime of illegal use of funds is found, the evaluation of its illegal fund-raising and illegal possession of funds is omitted, and all its behaviors are not completely evaluated.