Lawyer Zhang Qingfang: A Fraud Trial with No Victims, According to the Court 张庆方律师：一起法院坚持认为没有被害人的诈骗案

《袁山东被构陷集资诈骗罪一案二审辩护意见》

"Defense Opinion on Yuan Shandong's Framed Case of Fundraising Fraud in the Second Trial"

——“被害人”的朋友锁在被告席、“被害人”的仇家坐在审判席

"Victim's" friend is locked in the defendant's seat, "victim's" enemy sits on the judge's bench.

重庆市高级人民法院：

Chongqing High Court:

北京市汉鼎联合律师事务所张庆方律师受袁山东委托，在其被渝中区公安分局构陷，重庆市检五分院枉法起诉，重庆市第五中级人民法院枉法判决的所谓集资诈骗罪一案中，担任其二审辩护人。

Lawyer Zhang Qingfang from Beijing Handing United Law Firm, appointed by Yuan Shandong, acts as the defense attorney in the so-called case of fundraising fraud, which was framed by Yuzhong District Public Security Bureau, wrongfully prosecuted by the Fifth Procuratorate of Chongqing Municipality, and unjustly judged by the Fifth Intermediate People's Court of Chongqing.

由于本案二审开庭前及开庭中，二审合议庭就对广大债事人代表能否出庭做出了“根据最高法院的司法解释，非法集资案件参与人不是被害人，只能旁听，不能出庭”的表态，导致本案审理中出现了中国刑事法治史上最荒唐的一幕：

Due to the pre-trial and trial attitudes of the second-instance collegiate bench, which stated "according to the judicial interpretation of the Supreme Court, participants in illegal fundraising cases are not victims and can only observe, not attend the court," the trial witnessed one of the most absurd scenes in the history of China's criminal justice.

一审被判无期徒刑的集资诈骗案中，二审法院坚持认为不存在被害人。本案既然没有被害人，袁山东究竟骗了谁？

In the first trial, which resulted in a life sentence for fundraising fraud, the appellate court maintained that there were no victims. If there are no victims in this case, who exactly did Yuan Shandong defraud?

古今中外的刑事判决中，还能不能找出第二个没有被害人的诈骗案？

In the history of criminal judgments, both domestic and international, can another case of fraud with no victims be found?

鉴于二审合议庭解释法律问题上所犯上述错误的严重性质，使得本律师对二审法官的法律素养产生了深深的怀疑。

Considering the seriousness of the aforementioned legal misinterpretations by the second-instance collegiate bench, I am deeply skeptical about the legal competence of the appellate judges.

在此，本人不得不以重话提醒主持二审的三位法官，本案一审判决中存在诸多严重的程序和实体错误：

Therefore, I must sternly remind the three judges presiding over the second trial that there are numerous serious procedural and substantive errors in the first-instance judgment:

重庆市第五中级人民法院的审理严重违反法律规定的诉讼程序，本案属于法定应当撤销原判、发回重审情形，包括：

The Fifth Intermediate People's Court of Chongqing seriously violated the legally prescribed procedures, and this case should be statutorily annulled and remanded for retrial, including:

1、违反管辖规定违法分级分案，剥夺被告人法定诉讼权利，直接导致案件审判权独断于中级人民法院，被违法分案审理的另案已形成生效判决，本案实质已未审先决，重庆高院辖区内的中级人民法院已作为高级人民法院事实上的上级机构为本案盖棺定论；

1. The illegal assignment of the case, in violation of jurisdictional regulations, deprived the defendant of their legal right to a fair trial, effectively handing the judgment authority to the Intermediate People's Court. As this misassigned case has already resulted in a final verdict, it has preempted the trial, turning the Intermediate Courts within the jurisdiction of the Chongqing High Court into de facto superior courts that have made final decisions for this case.

2、全面否定被害人诉讼地位，剥夺被害人法定诉讼权利，被害人缺席庭审，严重影响公正审判，已造成极其恶劣社会影响；

2. The complete denial of the status of victims and the deprivation of their legal right to participate in the proceedings, combined with the absence of victims at the trial, has severely impacted the fairness of the trial and caused extremely adverse social effects.

3、本案涉及群体利益、社会影响重大，可能判处十年以上有期徒刑、无期徒刑，应由三名审判员、四名人民陪审员组成七人合议庭，一审审判组织不合法；

3. The case involves significant group interests and social impact, with potential sentences exceeding ten years or life imprisonment, necessitating a seven-member panel composed of three judges and four people's assessors. The organization of the trial at the first instance was illegal.

4、检察机关未将鉴定意见通知全体债事人并听取意见，鉴定意见未经被害人质证，一审判决未附被害人名单及损失金额，实质剥夺债事人参与分配涉案财物途径、侵害债事人财产权；

4. The prosecution failed to notify all creditors of the expert opinions and to hear their views; the opinions were not subjected to verification by the victims. The first-instance judgment did not include a list of victims or the amounts of their losses, essentially depriving creditors of the opportunity to participate in the distribution of involved assets and infringing upon their property rights.

5、涉案财物未随案移送，贵州省安顺市公安机关先行处置部分涉案资产情况不明，所得价款未随案移送，一审判决未列明涉案财物清单、未对涉案财物提出处理意见。被害人名单不在案、涉案财物不在案必然导致日后无法开展退赔工作，引发大规模社会不稳定事件。

5. The assets involved in the case were not transferred with the case files; the Public Security Bureau of Anshun City, Guizhou Province, prematurely handled some of the assets involved, and the conditions and proceeds of these disposals were not transferred with the case. The first-instance judgment did not specify a list of the assets involved or offer opinions on their handling. The absence of a victim list and the involved assets from the case files will inevitably lead to difficulties in conducting restitution in the future, potentially causing large-scale social instability.

正是由于存在诸多程序严重违法，重庆市第五中级人民法院既没有能力也没有意愿查明案件事实，拒不履行审判职责，债事人作为被害人如何认识涉案债事业务和有无发生实际经济损失、涉案公司是否具备履行涉案债事业务合同的实际能力、债事人领取履约资产包能否对被认定为“本金”的解债货款起到担保作用、仍有债事人控制的履约资产包价值几何、债事业务涉及账面价值322亿元债权价值几何、所谓虚假债事业务涉及金额和应如何归责、袁山东非法占有金额是多少，大量直接影响定罪量刑的基本事实不清，大量无罪证据未到案。

Due to the numerous serious procedural violations, the Fifth Intermediate People's Court of Chongqing lacked both the ability and the willingness to clarify the facts of the case, refusing to fulfill its judicial duties. Critical questions remained unaddressed, such as how creditors as victims understood the debt affairs involved, whether there were actual economic losses, whether the company had the actual capability to fulfill the contracts related to the debt affairs, whether the asset packages received by the creditors could guarantee the principal of the debt relief payments, the value of the performance asset packages still controlled by the creditors, the book value involved in the debt affairs of 32.2 billion yuan in creditor rights, the amounts involved in the so-called fictitious debt affairs and how responsibility should be assigned, and how much Yuan Shandong illegally possessed. Many basic facts that directly affect the verdict and sentencing were unclear, and numerous pieces of evidence proving innocence were not presented in court.

重庆市第五中级人民法院明知案件办理违反法律规定的诉讼程序、事实不清楚、证据不足，在一审判决中以大篇幅认定“未能证明经营模式确定不可持续”、“公司现有资产与未归还投资人资金的差额具有不确定性，证据体系未形成闭环，债务履行能力无法准确判断”等无罪理由，却又完全无视自身认定做出重罪判决，认定事实、裁判理由与裁判结果南辕北辙，法律文书如同儿戏，是典型的滥用职权、枉法裁判。

The Fifth Intermediate People's Court of Chongqing, fully aware that the case was handled in violation of the legally mandated procedures, with unclear facts and insufficient evidence, extensively acknowledged in the first-instance judgment reasons for acquittal such as "the business model's sustainability could not be proven," and "the existing assets of the company and the unreturned funds from investors differ uncertainly, the evidence system is not closed-loop, and the debt performance capability cannot be accurately judged." Yet, it completely ignored its own findings and issued a heavy sentence, with the facts established, the reasons for judgment, and the judgment result being contradictory. This constitutes a typical abuse of power and miscarriage of justice.

请重庆市高级人民法院裁定撤销本案一审判决，责令重庆市第五中级人民法院、重庆市第二中级人民法院撤销同案其他被告人判决，就全案层报最高人民法院指定重庆市外其他地区人民法院管辖。

We earnestly request that the Chongqing High Court annul the first-instance judgment of this case, order the Fifth and Second Intermediate People's Courts of Chongqing to rescind the judgments of other co-defendants in the same case, and report the entire case to the Supreme People's Court to designate a People's Court outside of Chongqing for jurisdiction.

详述如下：

The reasons are detailed as follows:

第一部分：本案存在多项严重违反法律规定的诉讼程序情形，属于法定的应当撤销原判、发回重审乃至退回人民检察院情形

Part One: This case involves multiple serious violations of legally mandated procedures, warranting statutory annulment of the original judgment, remand for retrial, or even referral back to the People's Procuratorate.

一、本案违反管辖规定违法分级分案，剥夺被告人法定诉讼权利，另案已形成生效判决，本案实质已未审先决

1. The case was illegally assigned in violation of jurisdictional regulations, depriving the defendant of their legal procedural rights, and with another case already having a final judgment, this case is substantially prejudged.

首先，根据《人民检察院刑事诉讼规则》第328条、最高人民法院《关于适用〈中华人民共和国刑事诉讼法〉的解释》第15条规定，共同犯罪案件，只要其中一人或者一罪属于上级人民检察院、人民法院管辖的，全案由上级人民检察院、上级人民法院管辖。因质疑贵州众合天下债事生活服务有限公司、贵州中解联合债事服务有限公司解债业务合法性，重庆警方在同一时期抓捕多人，一审分别交由中级人民法院、基层人民法院审判，严重违反“共同犯罪、统一级别管辖”的强制性规定，实际剥夺了当事人法定的由上级人民法院管辖的程序性利益。

Initially, according to Article 328 of the "Criminal Procedure Rules of the People's Procuratorate" and Article 15 of the "Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China," in cases of joint offenses, if any individual or any offense falls under the jurisdiction of a superior People's Procuratorate or People's Court, the entire case is subject to the jurisdiction of that superior authority. Due to doubts regarding the legality of the debt resolution business of Guizhou Zhonghe Tianxia Debt Service Life Co., Ltd. and Guizhou Zhongjie United Debt Service Co., Ltd., the Chongqing police arrested multiple individuals during the same period. The first-instance trials were handled by Intermediate and Basic People's Courts, severely violating the mandatory regulations of "joint offenses, unified level of jurisdiction," and effectively depriving the parties of their statutory procedural rights under the jurisdiction of the superior People's Court.

第二，本案违法分级，直接导致案件审判权完全独断于中级人民法院，实际剥夺重庆市高级人民法院终审权，本案二审程序等同虚设。

Secondly, the illegal grading of this case resulted in the complete monopoly of the judgment authority by the Intermediate People's Court, effectively depriving the Chongqing High Court of its final appellate authority. This makes the second instance trial of this case virtually redundant.

袁山东、苟玉兰、徐理苹、李强、杨淋淋、袁野由重庆市第五中级人民法院审理并作出（2021）渝05刑初78号判决，现上诉至重庆市高级人民法院。李小藻、田华、陈晓钟、褚仲平、彭小兰、陈良彬、胡波由重庆市渝中区人民法院审理并作出（2021）渝0103刑初517号，现上诉至重庆市第五中级人民法院。蒋庆云、李天全、魏民静由重庆市云阳县人民法院作出（2022）渝0235刑初23号刑事判决犯非法吸收公众存款罪，重庆市第二中级人民法院于2024年3月5日作出（2024）渝02刑终22号刑事裁定，驳回上诉、维持原判。在4月16日本案二审开庭审理之前，重庆市第二中级人民法院已经作出终局裁定，在重庆市高级人民法院之上已经为本案盖棺定论。

Yuan Shandong, Gou Yulan, Xu Liping, Li Qiang, Yang Linlin, and Yuan Ye were tried by the Fifth Intermediate People's Court of Chongqing, resulting in verdict (2021) Chongqing 05 Criminal Initial 78, and have now appealed to the Chongqing High Court. Li Xiaozao, Tian Hua, Chen Xiaozhong, Chu Zhongping, Peng Xiaolan, Chen Liangbin, and Hu Bo were tried by the Yuzhong District People's Court of Chongqing, resulting in verdict (2021) Chongqing 0103 Criminal Initial 517, and have now appealed to the Fifth Intermediate People's Court of Chongqing. Jiang Qingyun, Li Tianquan, and Wei Minjing were tried by the Yunyang County People's Court of Chongqing for the crime of illegally absorbing public deposits, resulting in verdict (2022) Chongqing 0235 Criminal Initial 23, with the Second Intermediate People's Court of Chongqing upholding the original judgment on March 5, 2024, (2024) Chongqing 02 Criminal Final 22, rejecting the appeal. Before the second-instance trial of this case on April 16, the Second Intermediate People's Court of Chongqing had already made a final ruling, effectively concluding the case above the Chongqing High Court.

违法分级分案，实质性剥夺了蒋庆云、李天全、魏民静之外所有同案被告人（袁山东、苟玉兰、徐理苹、李强、杨淋淋、袁野、李小藻、田华、陈晓钟、褚仲平、彭小兰、陈良彬、胡波）上诉权，实质性否定了本案二审程序的独立性，实质性抹煞了重庆市高级人民法院存在的必要性。

The illegal grading and assignment of the case fundamentally deprived all co-defendants in the same case (including Yuan Shandong, Gou Yulan, Xu Liping, Li Qiang, Yang Linlin, Yuan Ye, Li Xiaozao, Tian Hua, Chen Xiaozhong, Chu Zhongping, Peng Xiaolan, Chen Liangbin, and Hu Bo), except for Jiang Qingyun, Li Tianquan, and Wei Minjing, of their right to appeal. This substantively negated the independence of the second-instance proceedings and essentially negated the necessity of the existence of the Chongqing High Court.

二审庭审前，辩护人已告知合议庭徐文转法官另案处理同案犯已有生效判决，徐文转法官明确回复“案件会上下统一协调，不可能中院先出二审结果”，说明但凡有法律常识的法官都知道一起被强行分级分案审理的共同犯罪案件，不应该出现下级法院先于上级法院做出终审裁决的情形。但在本案中，办案机关违法分级分案，自始就没打算给重庆市高级人民法院话语权，如今更以下级法院的先生效判决上演了本案二审程序纯属走过场、重庆高院是二中院和五中院附庸机构的司法闹剧！重庆市高级人民法院如果选择包庇下级法院越俎代庖，无异于公开宣称放弃上级法院的政治地位和审判职责，重庆市的司法公信力将荡然无存！

Before the second-instance trial, the defense informed Judge Xu Wenturn of the collegial panel that there were already effective judgments for other defendants in the same case. Judge Xu explicitly replied that "the case will be coordinated up and down, and it is not possible for the intermediate court to produce the second-instance result first," indicating that any judge with legal knowledge understands that in a jointly tried case that has been forcefully graded and assigned, it should not occur that a lower court issues a final judgment before a higher court. However, in this case, from the beginning, the authorities illegally graded and assigned the case, never intending to give a voice to the Chongqing High Court. Now, with the lower court's earlier effective judgments, the second-instance proceedings of this case are merely a farce, making the Chongqing High Court appear as a subsidiary to the Second and Fifth Intermediate Courts! If the Chongqing High Court chooses to cover up for the lower courts stepping out of line, it is tantamount to openly abandoning the political status and judicial responsibilities of the higher court, leaving Chongqing's judicial credibility utterly destroyed!

第三，违法分案直接剥夺袁山东法定诉讼权利，严重影响公正审判。

Thirdly, the illegal assignment of the case directly deprived Yuan Shandong of his legal right to a trial, severely impacting the fairness of the trial.

在庭审过程中，被告人有权听取同案被告人当庭陈述与辩解、对在案证据质证意见、辩护意见、最后陈述，有权与同案被告人对质，有权查看同案被告人提交证据并发表意见。根据最高人民法院《关于适用〈中华人民共和国刑事诉讼法〉的解释》第220条规定，对一案起诉的共同犯罪或者关联犯罪案件，被告人人数众多、案情复杂，人民法院经审查认为，分案审理更有利于保障庭审质量和效率的，可以分案审理。分案审理不得影响当事人质证权等诉讼权利的行使。分案的前提是保障庭审质量，最基本的要求是充分查明案件基本事实、充分了解全体当事人意见。

During the trial process, the defendant has the right to listen to the statements and defenses of co-defendants in the same case, to challenge evidence on record, to present defense arguments, and to make final statements. The defendant has the right to confront co-defendants, to view evidence submitted by co-defendants, and to express opinions. According to Article 220 of the "Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China," in cases of joint or related crimes with multiple defendants and complex circumstances, the People's Court may decide to try cases separately if it considers that separate trials would better protect the quality and efficiency of the trial proceedings. However, the division of cases must not affect the parties' rights to challenge evidence or other litigation rights. The premise for dividing cases is to ensure the quality of the trial, with the fundamental requirement being the full clarification of the basic facts of the case and a full understanding of the opinions of all parties involved.

本案违法分案，直接剥夺袁山东等人诉讼权利，特别是重庆市云阳县人民法院审理蒋庆云、李天全、魏民静案，三位被告人全部认罪认罚，违法分案直接导致袁山东等其他所有同案犯都无法听取该三名被告人意见、无法与之对质，本案的终审权再次违法下放，实质是重庆市云阳县人民法院裁决所有同案犯，是基层法院代替中级人民法院、高级人民法院一审终审！

The illegal separation of this case directly deprived Yuan Shandong and others of their litigation rights. Specifically, the Yunyang County People's Court of Chongqing handled the cases of Jiang Qingyun, Li Tianquan, and Wei Minjing, where all three defendants pleaded guilty and accepted their penalties. This illegal separation directly prevented Yuan Shandong and all other co-defendants from hearing the opinions of these three defendants or confronting them. The final appellate authority of this case was again illegally delegated, essentially making the Yunyang County People's Court the adjudicator for all co-defendants, effectively replacing the role of the Intermediate and Higher People's Courts in a first and final trial!

本案二审开庭时，本辩护人提出了本案被分案审理的其他被告人到庭接受询问和质证的申请，又被二审合议庭当庭以“合议庭认为没有必要”为由驳回。既然二审合议庭连最基本的共同犯罪全部被告人同案同庭接受审判的权利都不能保障，我们还有什么理由相信本案二审能公正判决？

During the second-instance trial of this case, I, as the defense attorney, requested that other co-defendants who were tried separately be brought to court to be questioned and challenged. However, the second-instance collegial panel rejected this request on the grounds that "the collegial panel deems it unnecessary." If the second-instance collegial panel cannot even protect the most basic right of all co-defendants in a joint crime to be tried together in the same court, what reason do we have to believe that the second-instance trial of this case can be justly adjudicated?

二、一审法院、二审法院违法剥夺被害人诉讼地位、法定诉讼权利，在当事人缺席的情况下开庭审理，严重影响公正审判，社会影响极其恶劣。

Secondly, the first-instance and second-instance courts unlawfully deprived the victims of their legal status and rights to litigation, and conducted the trial in their absence, severely affecting the fairness of the trial and having a tremendously negative impact on society.

首先，本案债事人是被害人。既然袁山东被指控集资诈骗罪，债事人作为所谓被骗对象，属刑事诉讼法规定的被害人范畴。

First and foremost, the creditors in this case are victims. Since Yuan Shandong is accused of fundraising fraud, the creditors, as the alleged deceived parties, fall within the category of victims as defined by the criminal procedure law.

从法律规范看，最高人民法院《关于依法严厉打击集资诈骗和非法吸收公众存款犯罪活动的通知》法〔2004〕240号指出“要妥善处理涉及众多被害人的犯罪案件，注意追缴犯罪分子的违法所得，及时将被骗的集资款返还被害人，配合地方党委和政府做好案件的善后工作，尽量将犯罪造成的不良后果降到最低限度，确保社会稳定”。

From a legal norm perspective, Notice No. 240 [2004] of the Supreme People's Court on "Severely Punishing Fundraising Fraud and Illegal Absorption of Public Deposits in Accordance with the Law" states that cases involving many victims must be handled properly, focusing on the recovery of illegally obtained gains by criminals, promptly returning the defrauded funds to the victims, cooperating with local party committees and governments in post-case management, minimizing the adverse consequences caused by the crime, and ensuring social stability.

从具有指导意义的典型案例看，2010年6月18日 最高人民法院发布四起集资诈骗犯罪典型案例，其中，被告人孙小明集资诈骗案案情介绍为，“浙江省杭州市中级人民法院经审理查明，孙小明在杭州市先后骗取刘大龙等28名被害人集资款共计人民币1466万元”。

From significant case studies for guidance, on June 18, 2010, the Supreme People's Court published four typical cases of fundraising fraud. In one case, the defendant Sun Xiaoming was found by the Hangzhou Intermediate People's Court in Zhejiang Province to have defrauded 28 victims including Liu Dalong, collecting a total of 14.66 million yuan.

从人民法院办理同类案件保障集资参与人诉讼权利司法实践看，各地司法机关都将参与人定性为被害人并普遍发布公告充分告知被害人诉讼权利。特别请重庆市高级人民法院注意，重庆市万州区人民检察院微信公众号显示2023年12月20日发布李某某等人涉嫌集资诈骗罪案《关于被害人刑事诉讼权利义务告知的公告》，公告载“因本案涉及被害人众多，部分被害人无法联系，根据《人民检察院刑事诉讼规则》第五十五条第二款的规定，现以公告方式告知被害人有权委托诉讼代理人及在审查起诉阶段的权利义务。

In terms of judicial practice that protects the litigation rights of participants in similar cases, judicial authorities across regions categorize participants as victims and commonly issue notices informing them of their litigation rights. Specifically, the Chongqing Wanzhou District People's Procuratorate published an announcement on its WeChat public account on December 20, 2023, regarding the case of Li Momo and others suspected of fundraising fraud, stating "Due to the large number of victims involved in this case, some of whom cannot be contacted, according to Paragraph 2 of Article 55 of the 'Criminal Procedure Rules of the People's Procuratorate', victims are hereby notified of their rights to appoint legal representatives and their rights and obligations during the prosecution review stage via this public announcement."

被害人及其法定代理人行使相关诉讼权利时，可以书面形式递交本院”。查阅附件《被害人诉讼权利义务告知书》，列举了集资参与人作为被害人享有的十项诉讼权利，包括：“要求提供作证条件和保密的权利”“委托诉讼代理人和发表诉讼意见的权利”，你及你的法定代理人或者近亲属有权委托一至二名律师、人民团体或你的所在单位推荐的人作为诉讼代理人，你的监护人、亲友也可以作为你的诉讼代理人。检察机关审查案件应当听取你及你的诉讼代理人的意见。你及你的诉讼代理人有权向检察机关提出书面意见”。

"Victims and their legal representatives may exercise related litigation rights by submitting written forms to this court." An attached "Victims' Rights and Obligations Notice" lists ten litigation rights enjoyed by the participants as victims, including "the right to provide conditions for testimony and confidentiality" and "the right to appoint legal representatives and to make legal arguments." “You and your legal representative or close relatives have the right to appoint one or two lawyers, people's groups, or persons recommended by your organization as your legal representatives. Your guardian or close friends can also serve as your legal representatives. The prosecution must listen to the opinions of you and your legal representatives. You and your legal representatives have the right to submit written opinions to the prosecution.”

二、债事人作为被害人，在集资诈骗罪案件刑事诉讼程序中享有《刑事诉讼法》第四十六条、第六十一条、第一百四十八条、第一百九十一条、第二百二十九条以及最高人民法院《关于适用〈中华人民共和国刑事诉讼法〉的解释》第二百四十六条、第二百八十一条、第二百七十九条、第四百四十五条所规定的“委托诉讼代理人发表意见、参加庭审”“获悉作为证据使用的鉴定意见并提出意见，申请补充鉴定或重新鉴定”“对起诉书指控犯罪事实进行陈述”“向被告人发问”“申请通知证人、鉴定人、有专门知识的人、调查人员或者其他人员出庭”“出示证据”“对证据发表质证意见”“参与法庭辩论”“对查封、扣押、冻结财物及其孳息的权属、来源发表意见”“对查封、扣押、冻结财物及孳息处理方案发表意见”“在判决书主文或附件列明被害人姓名、受损金额以参与分配涉案财物”等法定权利。

Secondly, as victims, the creditors in cases of fundraising fraud have rights under Articles 46, 61, 148, 191, 229 of the Criminal Procedure Law, and Articles 246, 281, 279, 445 of the "Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China" including "the right to have a legal representative to express opinions, participate in the trial", "the right to be informed of and comment on expert opinions used as evidence, and to apply for additional or new expert evaluation", "the right to state the criminal facts alleged in the indictment", "the right to question the defendant", "the right to request the notification of witnesses, experts, persons with specialized knowledge, investigators, or other personnel to appear in court", "the right to present evidence", "the right to challenge evidence", "the right to participate in courtroom debates", "the right to express opinions on the ownership and origin of seized, attached, or frozen property and its proceeds", "the right to express opinions on the handling plans for seized, attached, or frozen property and its proceeds", "the right to have their names and the amount of their losses listed in the main text or an annex of the judgment to participate in the distribution of involved assets".

反观本案办理，重庆市上下三级人民法院本应保护的所谓被害人，自始就被完全排斥在刑事诉讼程序之外，人民法院从未对外公布案件进展情况、告知债事人诉讼权利，债事人从未获悉对确认自身权益有直接影响的鉴定意见内容，从未能委托诉讼代表人参加庭审活动，无论是侦查卷宗、庭审笔录、审判卷宗，未有任何材料体现债事人群体对案件事实如何定性、对涉案财物如何处理的任何意见。至二审庭审，7247名债事人书面委托党晨曦、罗涛、李巧梅、周锡莲、文晓春、温延平、张慧玲、袁国玉、上官策九名诉讼代表人要求参加庭审，被合议庭无故拒绝，审判长甚至反复宣称“债事人不是被害人”，重庆市高级人民法院公然剥夺全体债事人诉讼地位、诉讼权利，不惜亲自违法也要为重庆市第五中级人民法院继续背书，是典型的滥用职权。

Contrastingly, in the handling of this case, the so-called victims, who should have been protected by the three levels of People's Courts in Chongqing, were completely excluded from the criminal procedure from the start. The courts never publicized the progress of the case or informed the creditors of their litigation rights. The creditors never learned about expert opinions that directly affected their rights, nor were they able to appoint legal representatives to participate in the court proceedings. Neither the investigation files, trial transcripts, nor judicial documents reflected any input from the creditor group on how to characterize the facts of the case or how to handle the involved assets. By the time of the second-instance trial, 7,247 creditors had mandated nine legal representatives to attend the trial, but the collegial panel refused without cause, and the presiding judge repeatedly declared that "the creditors are not victims." The Chongqing High ourt openly deprived all creditors of their legal status and litigation rights, even breaking the law itself to endorse the actions of the Fifth Intermediate People's Court of Chongqing, a clear abuse of authority.

第三，债事人诉讼代表人缺席直接导致当事人缺席，法庭组成不合法，严重违反法律规定的诉讼程序。

Thirdly, the absence of legal representatives of the creditors directly led to the absence of the parties themselves, rendering the composition of the court unlawful and constituting a serious violation of the legally prescribed procedural rules.

根据《刑事诉讼法》第一百零八条规定，“当事人”是指被害人、自诉人、犯罪嫌疑人、被告人、附带民事诉讼的原告人和被告人；“诉讼参与人”是指当事人、法定代理人、诉讼代理人、辩护人、证人、鉴定人和翻译人员。债事人不是刑事诉讼程序可有可无的点缀，而是与被告人诉讼地位完全平等的当事人，在其要求参加庭审时，是必须的到庭的诉讼参与人。集资诈骗罪最核心的办案任务是“充分保障参与人权益”“为参与人挽回经济损失”，重庆市渝中区人民法院、重庆市云阳县人民法院、重庆市第五中级人民法院、重庆市第二中级人民法院完全无视最重要的当事人，故意制造当事人缺席，故意将当事人意见挡在法庭门外，严重程序违法直接造成全体被害人财产权利日后也必然被挡在涉案财物执行程序之外，公然侵吞、抢夺全体债事人合法财产！

According to Article 108 of the Criminal Procedure Law, "parties" refer to victims, private prosecutors, criminal suspects, defendants, and plaintiffs and defendants in attached civil proceedings; "participants in proceedings" refer to parties, legal representatives, legal agents, defense attorneys, witnesses, experts, and interpreters. Creditors are not merely ornamental in criminal procedures; they are parties with rights equal to those of the defendants and are essential participants in proceedings when they request to attend. The core task in cases of fundraising fraud is "to fully protect the participants' rights" and "to recover economic losses for participants." The Yuzhong District People's Court, Yunyang County People's Court, Fifth Intermediate People's Court, and Second Intermediate People's Court of Chongqing completely ignored the most important parties, deliberately causing their absence, intentionally blocking their opinions from the court, and thus egregiously violating procedural laws. This has directly resulted in the inevitable exclusion of all victims' property rights from the enforcement process involving the case's assets, overtly seizing and plundering the lawful property of all creditors.

第四，4月16日庭审，辩护人向法庭提交7247名债事人书面授权委托书及签署过程同步视频，多次申请合议庭依法保障债事人诉讼权利，通知诉讼代表人参加庭审、通知债事人作为证人出庭作证，合议庭无故拒绝。集资诈骗罪案件中，被告人、集资参与人原本应属敌对阵营，办案机关打击犯罪、保护被害人，本案中却出现了被告人辩护人为被害人群体诉讼权利据理力争，被害人群体为被告人无罪公开喊冤，这种奇葩的办案结果，只能充分证实本案是一起彻头彻尾的冤假错案，重庆市高级人民法院继续强行违法办案，不仅不可能实现任何政治效果、社会效果、法律效果，反而必然引发极其恶劣的社会影响，严重贬损人民法院乃至整个司法系统的公信力。

On April 16, during the court hearing, the defense attorney submitted the written authorization mandates and the signing process videos of 7,247 creditors, repeatedly requesting the collegiate bench to legally protect the creditors' litigation rights, to notify the legal representatives to participate in the trial, and to summon the creditors as witnesses. The bench unreasonably refused these requests. In cases of fundraising fraud, defendants and participants in fundraising are supposed to be on opposing sides, with law enforcement agencies fighting crime and protecting victims. However, in this case, the defense attorneys for the defendant argued zealously for the litigation rights of the victim group, and the victim group publicly decried the innocence of the defendant. Such an absurd outcome only fully demonstrates that this case is a complete miscarriage of justice. The Chongqing High Court's continued illegal handling of the case not only fails to achieve any political, social, or legal effects but inevitably leads to extremely adverse social impacts, severely undermining the credibility of the People’s Courts and the entire judicial system.

三、本案应由三名审判员、四名人民陪审员组成七人合议庭，一审审判组织的组成不合法，违反法律规定的诉讼程序

Third, this case should be heard by a panel consisting of three judges and four people's assessors, making up a seven-member collegiate bench. The composition of the trial organization at the first instance was illegal and violated the legally prescribed procedural rules.

根据《人民陪审员法》第十五条的规定，人民法院审判第一审刑事案件，具备“涉及群体利益、公共利益”“人民群众广泛关注或者其他社会影响较大的”“案情复杂或者有其他情形，需要由人民陪审员参加审判的”情形之一的，由人民陪审员和法官组成合议庭进行。第十六条规定，人民法院审判“可能判处十年以上有期徒刑、无期徒刑、死刑，社会影响重大的刑事案件”，由人民陪审员和法官组成七人合议庭进行。本案完全属于应由人民陪审员和法官组成七人合议庭进行审理的法定条件，一审合议庭由三名法官组成，审判组织的组成不合法。

According to Article 15 of the People's Assessors Law, the People's Court tries first-instance criminal cases that involve group interests, public interests, widespread public concern, or other significant social impacts, or cases that are complex or otherwise require the participation of people's assessors, with a collegiate bench composed of people's assessors and judges. Article 16 specifies that for criminal cases "likely to result in a sentence of ten years or more of imprisonment, life imprisonment, or death, and that have significant social impact," the trial must be conducted by a seven-member panel consisting of people's assessors and judges. This case fully meets the statutory conditions for being tried by a seven-member panel composed of people's assessors and judges. The first-instance collegiate bench, composed of three judges, was illegally constituted.

综上所述，本案一审和二审均存在重大的程序和实体法律错误，迫切需要重庆市高级人民法院介入，纠正错误，保护当事人法定的权利和利益。请高院按照法律规定，裁定撤销原判，发回重审或退回检察院。

In summary, both the first and second instances of this case have significant procedural and substantive legal errors, urgently necessitating intervention by the Chongqing High Court to correct these errors and protect the legally established rights and interests of the parties involved. It is requested that the higher court, in accordance with legal provisions, annul the original judgment and remand for retrial or refer the case back to the procuratorate.

辩护人：

Defense Attorney:

北京市汉鼎联合律师事务所律师 张庆方

Zhang Qingfang, Lawyer at Beijing Handing United Law Firm

2024年4月28日

April 28, 2024