Lawyer

Chapter 352 Chapter 360 361 Chapter 362 (Merge Chapters) You can’t convict without evidence
"After you transferred the company's funds to your personal account, did you use them?" Fang Yi asked.

"It's not used, I just want to transfer the company's funds to avoid being discovered by creditors who come to collect debts." Zhong Lanying said.

"Is your company's property independent? I mean, do you withdraw funds directly from the company's bank account when you need to spend at home or when you consume personally?" Fang Yi asked.

"No, absolutely not. The company's property belongs to the company, and our family's property belongs to our family. The division is very clear. I understand what you mean. There is absolutely no mixing. I have been in business for decades. I still know the risk." Zhong Lanying said.

"Well, I understand." Fang Yi put away the pen and paper after writing down the last stroke: "I will go to the court to review the case file, and I will meet again after the later defense plan is finalized."

After leaving the detention center, Fang Yi found out that there was a missed call from Liu Shanshan. He returned the call, and Liu Shanshan kindly invited him to a restaurant in the city for dinner, and they talked while eating.Fang Yi checked the time and rushed over.

When Fang Yi entered the restaurant, Liu Huashan frowned and Liu Shanshan was talking about something.

"Lawyer Fang, how is my mother?" Liu Shanshan asked after everyone ordered.

"Your mother is in a good state of mind. According to what she said, Lanying Company still owes about 82 yuan to the material supplier and processing party." Fang Yi said.

"If we help my mother pay back the money, will the court consider giving my mother a few years less sentence?" Liu Shanshan asked.

"If the debt is repaid and the creditor's loss is minimized as much as possible, the court will consider it when sentencing. If the creditor can issue a letter of understanding, the effect will be better." Fang Yidao.

"Okay, let's figure out a way to do this." Liu Huashan said hastily when he heard that paying off the debt would benefit his wife's case.

"I will go to the court to review the case in the afternoon, and I will contact you in a few days to tell you the final defense plan." Fang Yi said.

When Fang Yi returned to the law firm from the next city, it was already past six o'clock in the evening.After returning, Fang Yi started to work overtime while reviewing the case file while recalling what Zhong Lanying said during the meeting with Zhong Lanying in the detention center, so as to find out the differences, analyze and confirm.

When handling a case, the parties cannot fully believe what the parties say. What they say is based on their own standpoint, which is highly subjective. In fact, many contents may be different from the facts. This requires lawyers to use common sense in life and facts in the case files. Evidence to verify and compare.

Of course, when the public prosecution agency has no evidence and the parties have no evidence, Fang Yi is willing to believe the words of the parties, and will do his best to open up for the parties.After all, the lawyer's defense is to protect the legal rights of the client, or to put it bluntly, to save the client from prison. Since there is no evidence, the court should not punish the client. It is impossible to convict the client without evidence. of.

Four days later, Liu Shanshan and Liu Huashan walked into the conference room of the law firm again. Fang Yi invited them to come here today. In the past few days, Fang Yi has sorted out the whole context of the matter, checked relevant information, and determined a defense plan.

"Lawyer Fang, what's going on?" Liu Shanshan asked eagerly as soon as Fang Yi entered the meeting room.

"I have read the case file materials provided by the public prosecution agency, and I have initially judged that the charges (contract fraud, personal crime) charged by the procuratorate against your mother cannot be established. However, your mother's Lanying company constitutes a crime of contract fraud, and your mother Zhong Lanying is the actual controller. Persons and legal representatives will still be held accountable," Fang Yi said.

"Lawyer Fang, is this the corporate crime you mentioned earlier?" Liu Huashan asked.

"Yes, I think this case is a corporate crime, not an individual crime." Fang Yi said.

"Then how many years will my mother be sentenced?" Liu Shanshan asked.

"The specific sentencing depends on how the judge views the case. A few days ago, I wanted to go to the procuratorate to communicate with the procurator in charge of the case, but the procurator said that he was busy and had no time to receive him on a business trip. Let me mail the lawyer's opinion give him.

You see this is my call log, I recorded the audio.I can play it for you to listen to. " Fang Yi said and was about to play the recording.

"Lawyer Fang, no need, we trust you. No need for suspects, no need for employers." Liu Huashan said with a smile.

Fang Yi's recording was not to deal with the prosecutors, but to show the client what he did, so that the client would not feel that the lawyer took money and did nothing.

"Well, I have mailed the lawyer's opinion to the procurator. But I guess the procuratorate will not accept my opinion, otherwise they would not have this attitude.

By the way, how about the repayment of the arrears? "Fang Yi put away the phone and said.

"We have already raised a lot of money, and there is still a little funding gap. We should be able to get all the money back to the material supplier and processor next week. We communicated with the other party before, and the other party said that if they compensate them for all losses, they can consider issuing Letter of understanding." Liu Shanshan said.

"Well, the court will be held in a week. If possible, try to pay off all the debts before the court hearing." Fang Yi said.

As soon as Fang Yi returned to his work place, Ouyang Jie called and asked Fang Yi to help him find a lawyer for non-litigation. Through his father's relationship, he got a legal due diligence project with a cost of 10 yuan in other provinces.

Fang Yi thought of Lawyer Sima Jun. If you want to say that Lawyer Sima definitely has no professional ability, he just has a poker face, which makes people feel that he is always repulsed by thousands of miles, and he is not used to it.Fang Yi tried to send her a Wechat message, and after a while, Sima Jun wrote back to him: Yes, I need an interview.

Two days after Fang Yi introduced Sima Jun to Ouyang Jie, Ouyang Jie sent news that the cooperation agreement was concluded.Then Ouyang Jie asked Fang Yi on the phone: "Did Lawyer Sima's facial muscles get injured or underwent surgery?"

Fang Yi asked in confusion, "What's the matter?"

"I talked with her for more than an hour, and her face seemed to be wearing a mask, and there was no emotional change at all. I didn't know whether she was happy or dissatisfied.

Let me ask weakly, will Lawyer Sima laugh? " Ouyang Jie asked.

Fang Yi didn't expect Ouyang Jie to gossip like this.yes!Will lawyer Sima Jun laugh?Fang Yi suddenly remembered that she had seen her smile before, she was pretty!

Soon, the trial of Zhong Lanying's case started. The venue of the trial was: District Court No.18 in the neighboring city, at 09:30 in the morning.

Sitting on it was a thin male judge wearing glasses. He was the sole judge of the case, and the prosecutors were two women.There were about ten people in the auditorium, and the Liu family's father and daughter sat in the middle.

Defendant Zhong Lanying sat in the dock, looking very calm, listening to the prosecutor read the indictment blankly.

"...the victimized unit came to the door many times to demand the owed payment. Zhong Lanying refused to pay the total value of more than [-] yuan for raw materials and processing fees to all the victimized units on the grounds that they had not received the payment.

Subsequently, the defendant Zhong Lanying transferred the funds in Lanying's company account to her personal account in batches, or withdrew cash in the name of travel expenses, etc., and used the above methods to transfer company property.

After the incident, Zhong Lanying paid part of the payment for the goods and still caused direct economic losses totaling more than 82 yuan to the victim unit.Before the trial of this case, Zhong Lanying's family actively raised 82 yuan to refund the economic losses of the victimized unit.

We believe that the defendant Zhong Lanying constituted the crime of contract fraud. Considering her criminal facts, circumstances, crime amount, harmful consequences, attitude of confession and repentance, and compensation for economic losses, it is recommended that the defendant Zhong Lanying be sentenced to ten years in prison.complete. After finishing speaking, the female prosecutor put down the indictment.

"Defendant Zhong Lanying, did you hear clearly the indictment read out by the public prosecutor just now? Do you have any objection to the criminal facts and charges charged in the indictment?" the male judge asked.

"I have no objection to the facts of the crime, but I have objections to the charges. I have no intention of committing a crime. The contract was signed by the company. I am only a shareholder and the actual person in charge of the company. I am willing to bear corresponding responsibilities." Zhong Lanying said calmly.

After all, she has been in business for so many years, she is older, she has experienced many times, and she has a good heart.Although she doesn't want to go to jail, but the matter has come to this point, she can only accept legal punishment in court, and she only hopes that the court will save a few years of sentence.

"The public prosecutor can interrogate the defendant on the criminal facts charged in the indictment." The male judge said.

"Defendant Zhong Lanying, when the victim unit came to ask you for the processing fee and material payment that you owed, has Lanying Company received the payment?" asked the female prosecutor.

"Got it." Zhong Lanying said.

"Since the payment for the goods has been received, why not pay the victim unit." The female prosecutor asked.

"Because, during the period before the Chinese New Year, many units need bridge funds. I want to use this period of time to let Lanying Company earn more money." Zhong Lanying said.

"How did you hide Lanying's funds?" asked the female prosecutor.

"I transferred Lanying's funds to my own account by making false accounts, and withdrew part of the cash by reimbursement of travel expenses." Zhong Lanying said.

"How much is the reimbursement?" the female prosecutor asked.

"Very few, about [-] to [-], I can't remember exactly." Zhong Lanying thought for a while.

"How many shareholders does Lanying Company have? Who is usually in charge of the operation?" asked the female prosecutor.

"Lanying Company is a one-person limited company. I am the only shareholder. I am the legal representative and general manager. I have the final say on the company." Zhong Lanying said.

"Judge, I'm done questioning!" the female prosecutor said.

"Next, the defender of the defendant Zhong Lanying will ask the defendant questions." The male judge said.

"Defendant Zhong Lanying, does your company have a corresponding property system?" Fang Yi asked.

"Yes, we report taxes to the tax authorities on time every year. We have two financial personnel who usually conduct financial management according to the requirements." Zhong Lanying said.

"Do shareholders or executives often borrow money from the company?" Fang Yi asked.

"Lanying Company has an reimbursement and loan system. Usually, few executives borrow from the company, and employees may withdraw expenses in advance when they are on business trips. However, the corresponding invoices will be submitted for financial processing later." Zhong Lanying said.

"After you transferred the funds from Lanying Company to your personal account, is there any payment? Have you used the funds for consumption?" Fang Yi asked.

Zhong Lanying's cash withdrawal through reimbursement of travel expenses is only [-] to [-], which is basically negligible, so Fang Yi focused on the funds in the bank account.

"No, it's not easy to do a physical business these days. Our company earns some money, except for paying employees' salaries and paying rent. In fact, there is not much money left. So although the funds entered my personal bank account, I did not dare to use them. " Zhong Lanying said.

"You said just now that you wanted to release the money in the name of Lanying Company at the end of the year to make money as a bridge fund. Did you actually do it?" Fang Yi asked
"No, because I don't know many fund demanders, so I dare not lend money." Zhong Lanying said.

"Why do you lend money in the name of the company?" Fang Yi asked.

"Because the funds belong to the company, there are still many employees in the company waiting to be paid for the New Year. Later, I will transfer the funds back to the company to do business and operate the company." Zhong Lanying said.

The prosecutor asked questions to prove that Zhong Lanying committed contract fraud. Fang Yi asked the questions to tell the judge that the company is a company and the individual is an individual. Zhong Lanying never used the money from the beginning to the end.The purpose of her transfer of company assets is not to embezzle company assets, but for the benefit of the company.

Of course, judging from the current situation, this is indeed the case, but if Zhong Lanying has not been arrested, it is hard to say how she will arrange the funds.But that's not something Fang Yi has to think about, taking people's money means doing things for them, he doesn't want to bother thinking about things that haven't happened, and there's no need to delve into them.

……

"The facts of this case have been investigated clearly, the court investigation is over, and the court debate is now beginning. The court debate mainly revolves around the disputed facts that have not been certified by the court and how to apply the law based on the facts.

Let the prosecutor speak first. "The male judge said.

"After investigation, Lanying Company is a one-person limited liability company. We believe that the defendant Zhong Lanying, as the shareholder and actual controller of Lanying Company, entered into a goods trading and processing contract business with the victimized unit in his unit and received payment from the victimized unit. After receiving a huge amount of goods, for self-interest, transfer and conceal the property of Lanying Company, and take it as his own, his behavior has violated the criminal law and constituted a crime of contract fraud. Please judge in accordance with the law." The female prosecutor said.

"The defendant Zhong Lanying will defend herself next time," said the male judge.

"I have no intention of embezzling the company's property. The reason why the property is transferred is for the company's benefit, not for my personal benefit..." Zhong Lanying held the A4 paper in her hand and spoke in a very orderly manner.

What she said was what she summed up after Fang Yi met with her for the last time to discuss the defense plan.

"Let the defender express his defense opinion." The male judge said.

"...Although Lanying Company is a one-person limited company, it has a complete governance structure and its finances are independent from the actual controller. The public prosecution agency accused Zhong Lanying of committing contract fraud, but the existing evidence is not enough to prove that Zhong Lanying used it after receiving the payment. Because of his personal expenses, the public prosecution agency has insufficient evidence to charge Zhong Lanying with a personal crime.

The defender believed that the defendant Zhong Lanying's behavior was entirely for the benefit of the company, which conformed to the characteristics of a unit crime and should be a unit crime.In view of the fact that the defendant and his family are actively raising funds to compensate for the losses of the victimized unit, and the defendant is sincere in pleading guilty and repentant, the court is requested to reduce the criminal punishment of the defendant as appropriate.

The defender suggested that the court should sentence the defendant Zhong Lanying to probation.complete. "Fang Yi said.

"The public prosecutor can respond to the defense opinions issued by the defender." The male judge said.

"The public prosecutor believes that Lanying Company is a one-person limited company, which is essentially indistinguishable from Zhong Lanying, the shareholder and actual controller of the company, in terms of personality, will, and interests.

As the name implies, a one-person limited company has only one shareholder. The capital contribution and operation are all done by the shareholder, and the interests also belong to the specific shareholder. There is no independent interest of the company, and it is impossible to distinguish between the company's property and the shareholder's personal property.

Lanying Company is a one-person limited company. The shareholder Zhong Lanying alone controls all the company's business activities. The company's will and the shareholders' will cannot be distinguished, and the company has no independent will.

This is inconsistent with the characteristics of the subject of unit crimes stipulated in the "Criminal Law", so the crimes committed by a one-person limited company can only be punished as individual crimes, and cannot constitute unit crimes.complete! " said the female prosecutor.

"Defendant Zhong Lanying's defender can respond to the public prosecutor's opinion." The male judge said.

"Okay. The defense does not agree with the above statement made by the public prosecutor regarding the independence of the one-person limited company.

According to the provisions of the "Company Law", a one-person limited company refers to a limited liability company in which the shareholder is only one person (natural person or legal person) and the shareholder holds all the company's capital contributions.

It is entirely possible for a one-person limited company to have an independent legal personality, and the only difference between it and a traditional limited liability company is the number of shareholders.However, the number and identity of the shareholders have nothing to do with the establishment of unit crimes. It is entirely possible for a one-person limited company to constitute unit crimes.

The defender does not deny that due to the particularity of the one-person limited company, affiliated transactions between the investor and the company are likely to occur, resulting in personality confusion, and the personality of the one-person limited company is unstable because of the singleness of its shareholders.However, the independence of a one-person limited company cannot be denied.

The defender believes that the following criteria should be used to determine whether a one-person limited company in a specific criminal act has independent personality:

[-]. Whether it has independent property interests.

The property of the company and the property of the investor must be separable, and the property status of the company must be independent.If the company's property cannot be continuously independent from the shareholder's property, and if the two are confused, the company will lose its independent personality, and the company's property will become the personal property of the shareholders. Criminal acts committed in the name of the company can only be the individual actions of the shareholders. rather than unit crime.

As far as this case is concerned, judging from the evidence provided by the public prosecutor so far, there is no evidence to prove that Zhong Lanying's personal property has been confused with Lanying Company.Therefore, Lan Ying Company's property is independent.

[-]. Whether the one-person limited company has an independent will.

Whether the will of a one-person limited company is independent is the essential element for judging whether it has the eligibility of a unit crime subject.The shareholder and manager of Lanying Company are the same person. Although the will of the one-person limited company comes from Zhong Lanying, the sole shareholder, it cannot be confused with the will of a natural person.

The signing of the material supply contract and the processing contract between Lanying Company and the victimized unit is a specific act carried out by shareholder Zhong Lanying within the scope of power stipulated in the law and the company's articles of association for the benefit of the company. Zhong Lanying's behavior should be regarded as the decision of Lanying Company, not Zhong Lanying's personal will.

Of course, it also depends on whether the rights have been abused. If the shareholders of a one-person limited company commit contract fraud in the name of the company in order to repay personal debts, and the benefits belong to the individual, the company will become a tool for individual crimes and obviously cannot be treated as unit crimes. .In this case, Zhong Lanying signed the business contract, and all the benefits obtained belong to the company. Although she transferred funds, it was also for the benefit of the company, and she did not use the relevant funds personally.

Therefore, although Lanying Company is a one-person limited company, it has independent will.

[-]. Whether Lanying Company has the corporate governance structure required by the Company Law.

According to the law, a company with independent personality must have a certain place, personnel and organizational structure. When shareholders exercise their powers stipulated in the company law, they must make it in writing and put it on the company's record.

Based on the existing evidence, Lanying Company complies with the provisions of the Company Law and has a complete legal person governance structure.

Zhong Lanying's behavior was carried out in the name of the company, and its purpose was to pursue the company's interests or perform company duties, so it should be regarded as Lanying's company behavior.

[-]. Whether Lanying Company operates in accordance with the articles of association of the company.

A one-person limited company with independent personality should have its own articles of association and specific purposes, and the company's articles of association and purposes must also comply with legal regulations.

Lanying Company is a limited company legally registered in the industrial and commercial department, and its articles of association comply with the provisions of the "Company Law".Judging from the evidence materials provided by the public prosecutor so far, there is no violation of the company's articles of association of Lanying Company.Lanying Company has been operating in accordance with the articles of association of the company.

[-]. Whether Lanying Company was established in accordance with the statutory conditions and procedures.

First of all, Lanying Company is an enterprise established according to law and registered with the administrative department for industry and commerce, and has obtained the status of a legal person according to law.

Secondly, Lanying Company complied with the minimum registered capital stipulated in the Company Law, and paid up the registered capital in one lump sum. (For companies registered after March [-], the registered capital is a subscription system, and the company registered before is a paid-in system)

In this case, Lanying Company was legally registered and established, and the defendant Zhong Lanying was the sole shareholder, legal representative and actual controller of the company.

After the establishment of Lanying Company, it operates in accordance with the profit-making purpose stipulated in the articles of association. The company is relatively independent in operation and has the governance structure required by the "Company Law". The defendant Zhong Lanying, as the legal representative, committed contract fraud for the benefit of the company. independent will of the company.

Lanying Company has an independent financial status, which can be clearly distinguished from Zhong Lanying's personal property. Although contract fraud was committed, the existing evidence is insufficient to prove that Zhong Lanying used the payment for her personal expenses after receiving the payment.

To sum up, Lanying Company has an independent legal personality and the ability to bear criminal responsibility.As the legal representative of the company, Zhong Lanying carried out contract fraud for the benefit of the company, which should be regarded as the behavior of Lanying Company, so this case should constitute a unit crime.As the actual controller of Lanying Company, Zhong Lanying should only bear the corresponding criminal responsibility.complete. "Fang Yi said.

Fang Yi's long speech made the two prosecutors on the opposite side frown, and the judge also took notes from time to time.The father and daughter of Liu's family who were listening in were very confused. Although their brains were a little weak, they felt that Fang Yi was able to live in vain.

The most uncomfortable thing is the clerk, the clerk who has always been proud of shorthand, this time he was dumbfounded, Fang Yi spoke a little too fast, the clerk kept tapping the keyboard with his hands but still couldn't keep up, so he could only sit depressed Where to listen, wait for the adjournment to ask Fang Yi for his defense.

……

(End of this chapter)