Lawyer

C495C539 540 Retaliation!

The weather is getting hotter every day. After waiting for nearly half a month, I finally waited for the court hearing notice.Zhang Wen's case of illegally operating a similar business will start at [-] a.m. next Monday.

In the tenth trial chamber of the court, there was an old lady sitting in the auditorium. She didn't know what her relationship with Zhang Wen was. Zhang Fengcai didn't come to listen. He was anxiously waiting for Fang Yi's news in the office.

The presiding judge is a middle-aged female judge with curly hair. She has a big face, big eyes, and a gloomy face. She has a feeling of avoiding strangers.On either side are two female judges, both of whom look younger.

There were two prosecutors sitting on the public prosecutor's bench. The first one was a female prosecutor in her 30s with short hair around her ears and good features. Her surname was Song. Fang Yi had seen her before when he went to the procuratorate to review papers; One is a male prosecutor in his 20s with a cropped cut, probably Prosecutor Song's apprentice.

At this time, Prosecutor Song was reading out the indictment: "...Defendant Zhang Wen is a senior manager of a joint venture, and by taking advantage of his position, he asked his relatives to operate business activities similar to the business scope of the company he worked for, and obtained illegal benefits from it.

This court believes that the behavior of the defendant Zhang Wen violated Article 160 of the Criminal Law of the People's Republic of China. The facts of the crime are clear and the evidence is reliable and sufficient. He should be investigated for criminal responsibility for the crime of illegally operating similar businesses.According to the provisions of Article 170 of the "Criminal Procedure Law of the People's Republic of China", if a public prosecution is filed, please sentence it according to law.Presiding judge, the indictment has been read out. "

"Defendant Zhang Wen, 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?" asked the presiding judge.

"I have no objection to the facts, but I do not agree with the charges. Although I am a department manager of the company, our company is a joint venture company, not a state-owned enterprise. My actions do not constitute the crime of illegally operating similar businesses." Zhang Wendao.

Before the court session, Fang Yi went to see him and told him the lawsuit plan and relevant legal regulations, so that he knew it well.How can I say that Zhang Wen is also a person who has gone to college and has been in the society for so many years, so he naturally knows what to say.

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

"Okay, presiding judge." Prosecutor Song looked at the dock and asked, "Defendant Zhang Wen, what position do you hold in the joint venture company?"

"General manager of the sales department." Zhang Wen said expressionlessly.

"What is your job?" Inspector Song asked.

"Responsible for the sales and after-sales service of automobile products and parts of the joint venture company." Zhang Wendao.

"What is the relationship between Wanjia Sales Company and you?" Inspector Song asked suddenly
"Wanjia Sales Company was registered by my mother and mother-in-law, and it acts as an agent for the sales of our company's auto parts. It is an authorized agent of our company." Zhang Wen understood what the inspector wanted to ask, so he simply said it out. Anyway, these things It is recorded in the case file, and sooner or later it has to be said.

"Who is actually running Wanjia Sales Company?" Inspector Song glanced at Zhang Wen and asked.

"I'm the one running the business, and I'm also in charge of the business." Zhang Wen looked at Prosecutor Song and said.

"How long has Wanjia Sales Company been acting as an agent for the joint venture company?" Inspector Song asked.

"Ten months." Zhang Wen said.

"As an agent of the joint venture company, what is the revenue and profit of Wanjia Sales Company in the past ten months?" Inspector Song asked.

"The sales volume is 48 yuan, and the profit is 420 yuan." Zhang Wen said.

"Does Wanjia Sales Company have any other business? Are these sales sales all from acting as an agent of the joint venture's products?" Inspector Song asked.

"Wanjia Sales Company only conducts joint venture business and has no other business." Zhang Wen said.

"During your operation of Wanjia Sales Company, did the prices of the joint venture products sold by Wanjia Sales Company comply with the relevant regulations set by the joint venture company?" Inspector Song asked.

"Wanjia Sales Company sells according to the sales plan and price formulated by the joint venture company, and there is no violation of regulations. Wanjia Sales Company has accounts. You can check them at any time." Zhang Wendao.

"Judge, the public prosecutor is done questioning." Prosecutor Song looked at the presiding judge and said.

"The defendant's defender can question the defendant," said the presiding judge.

"Defendant Zhang Wen, how did you get into the joint venture company?" Fang Yi asked.

"I was recruited by the agency. Before that, I was doing sales in a foreign-funded company in another province." Zhang Wen said.

"Apart from being the general manager of the sales department, do you hold other positions in the joint venture company?" Fang Yi asked.

"There is no other position." Zhang Wen said.

"Presiding judge, the defender's questioning is over," Fang Yi said.

"The next step is to present and cross-examine evidence. Do the prosecution and the defense and the defendant have any new evidence to submit?" asked the presiding judge.

"There is no new evidence to submit." All three parties agreed.

"First, the public prosecutor presents the evidence, and the defendant and the defender confront each other," said the presiding judge.

……

Zhang Wen recognized the facts accused by the public prosecutor, so he naturally also recognized the evidence presented by the public prosecutor.Fang Yi also has no objection to the evidence reflecting the facts of the case.

"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. " said the presiding judge.

"Presiding judge, judge: The public prosecutor believes that the defendant Zhang Wen, as the general manager of the department of the joint venture, took advantage of his position to operate business activities similar to the business scope of the joint venture through Wanjia Sales Company, and obtained illegal benefits of 12 yuan. Two thousand one hundred yuan, a huge amount.

The behavior of the defendant is consistent with the criminal constitution required by Article 160 of the "Criminal Law", and his behavior constitutes the crime of illegally operating similar businesses.The public prosecutor recommended that the defendant be sentenced to three years in prison.complete. "Inspector Song recommended the sentence according to the top standard, which can also be seen as retaliation for Zhang Wen's plea of ​​not guilty.

"Defendant Zhang Wen defended himself," said the presiding judge.

"I agree with the fact that we set up a company and operate the same kind of business as a joint venture company, but our company is not a state-owned enterprise, and I am not the company's general manager or director, so my actions do not constitute a crime..." Zhang Wen argued.

"The defendant's defender issued a defense opinion." The presiding judge said.

"The presiding judge and judges: the defender believes that the defendant Zhang Wen's behavior does not constitute the crime of illegally operating a similar business for the following reasons:

[-]. A joint venture company is a company jointly operated by the Chinese party and the foreign party, and should not be recognized as a state-owned company.

According to the evidence provided by the public prosecutor, the shareholding structure of the joint venture company is as follows: the Chinese party (state-owned enterprise) holds 50.00% of the shares, and the foreign party holds 50.00% of the shares.The joint venture company shall be operated and managed by personnel appointed by both parties.The nature of the joint venture company is a Sino-foreign joint venture company, not a state-owned company.

[-]. The defendant, Zhang Wen, is a department manager of a Sino-foreign joint venture company, and does not meet the main requirements for the crime of illegally operating similar businesses.

According to Article 160 of the "Criminal Law", directors and managers of state-owned companies and enterprises take advantage of their positions to operate or operate for others the same type of business as the company or enterprise they work for, and obtain illegal benefits. business crime.

It can be seen from the above clauses that the subject of the crime of illegally operating similar businesses is a special subject, that is, the directors and managers of state-owned companies and enterprises.Other persons cannot be the subject of the offence.

This is because directors and managers of state-owned companies should safeguard the interests of state-owned companies and enterprises, abide by the company's articles of association, perform their duties faithfully and diligently, and must not use their positions and powers in the company to seek interests for themselves. Directors and managers of state-owned companies have imposed non-compete regulations.

According to the provisions of the "Company Law", directors refer to members of the company's board of directors, including the chairman, vice chairman, executive directors and general directors.The election, appointment and replacement of directors must go through certain legal procedures.

The "manager" mentioned in Article 160 of the "Criminal Law" refers to the senior management personnel who are appointed by the board of directors, are responsible to the board of directors, are responsible for the production and operation management of the company, and organize the implementation of the resolutions of the board meeting.

In actual operation, each department of the company will also set up department managers, such as administrative department manager, sales department manager, financial department manager, project manager and so on.

The above-mentioned department managers are set up out of management needs. They are not the company managers mentioned in Article 160 of the Criminal Law, but are just daily titles. They are not responsible for the management of the entire company, but for the management of a certain department or a certain business. Management, its operating and management authority is regulated by the company itself, so the "Company Law" does not make non-compete regulations for it.

As a statutory crime, the main elements of the crime of illegally operating similar businesses should directly refer to the provisions of the "Criminal Law", and it is not appropriate to make an expanded interpretation.Therefore, middle-level management personnel such as department managers of state-owned companies and enterprises do not constitute the subject of the crime of illegally operating similar businesses.

To sum up, although the defendant Zhang Wen took advantage of his position to operate business activities similar to the business scope of the joint venture company he worked for through Wanjia Sales Company and benefited from it, the joint venture company Zhang Wen worked for was not state-owned. The company, and Zhang Wen is a middle-level manager, does not have the special status of a director or manager of a state-owned company stipulated in Article 160 of the Criminal Law, so his behavior does not constitute the crime of illegally operating similar businesses.complete. "Fang Yi said.

"The public prosecutor can respond to the defender's defense opinion." The presiding judge said.

"In response to the defender's defense, the public prosecutor believes that state-owned companies should include: state-funded companies that are absolutely controlled by the state, limited companies that are relatively controlled by the state, and companies that have an absolute majority of property rights in state-owned enterprises. Although the victim company in this case is a Sino-foreign joint venture However, if the state-owned enterprise accounts for 50.00% of the investment, it should also be recognized as a state-owned company." Inspector Song said.

In fact, there were different opinions within the procuratorate on whether the Sino-foreign joint venture company was a state-owned company. For this reason, the procuratorate had specially discussed it within the procuratorate.

The main reason for this result is that with the continuous deepening of my country's economic system reform, the main contributors of companies and enterprises have also developed from the original singleness to diversity, but the development of laws is lagging behind. The understanding of the concept of "state-owned enterprise" is not uniform, which brings difficulties to the definition of the nature of state-owned companies and enterprises.

"The defender can respond to the public prosecutor's opinion." The presiding judge said.

"Based on the Prosecutor's Defense Opinion and Responses, the Defense Counsel issued the following Defense Opinion:

The defender believes that state-owned companies and enterprises should be strictly limited to companies and enterprises whose assets are all state-owned.Other companies should not be identified as state-owned companies.The reasons are as follows:
First, as an independent enterprise legal person established in accordance with the law and operating for profit, the company has independent legal personality and enjoys the autonomy of management, income and disposal of its assets.

After the company is established according to law, the capital contribution of the shareholders becomes the company's assets and belongs to the company.Shareholders receive corresponding dividends in proportion to their shareholdings.

Therefore, if a state-controlled company or a company with a majority of state-owned assets is identified as a state-owned company, it will not only deny the company's independent legal personality, but also damage the subject qualifications and shareholder rights of other investors.

Second, the amount of capital contributed by state-owned assets, whether it is an absolute holding or a relative holding, is only a form of expression of state participation in shares, and cannot directly define the nature of the company as state-owned. company.

Returning to this case, the joint venture company is a company established with equal capital contributions from the Chinese party and the foreign party, and each party holds 50.00% of the shares. Its nature is a Sino-foreign joint venture company and should not be recognized as a state-owned company.complete. "Fang Yi said.

……

At [-]:[-], Fang Yi walked out of the court, stood at the gate of the court building, looked up at the gray sky, and breathed a sigh of relief.Zhou Ying, who followed behind, carried a briefcase and case file materials, and followed in small steps along the way.

Fang Yi took out his mobile phone and dialed out. After a while, Zhang Fengcai's voice came from the microphone.

"Lawyer Fang, what's the result?" Zhang Fengcai's voice seemed anxious.

"Sentencing in court, Zhang Wen is not guilty. Zhang Wen still has to go through the formalities, and he can go home in a while." Fang Yi smiled.

The court held that the joint venture company Zhang Wen worked for was not a state-owned company, and the position he held was not a director or manager of a state-owned company, which was inconsistent with the criminal constitution required by Article 160 of the Criminal Law, so it should not be treated as a crime .

The facts of the prosecution's allegations are established, but the charges are not established and are not supported.The defense opinions of the defendant and the defender are established and accepted.In accordance with the provisions of Article 160 of the "Criminal Law" and Article [-] ([-]) of the "Criminal Procedure Law", the judgment: the defendant Zhang Wen is not guilty.

After hearing the word "not guilty" from the microphone, a stone in Zhang Fengcai's heart finally fell to the ground, and a smile appeared on his face.

(End of this chapter)