Lawyer's character

"The prosecutor will now speak," the presiding judge said.

"This court believes that the behavior of the appellant Cao Yueshan constitutes the crime of contract fraud. The reasons are as follows:

1. Honghai Company failed to pay the 50 million yuan start-up capital for the new residential project in Gaojiazhuang Village as scheduled, and the project development rights were in an uncertain state. Cao Yueshan did not inform Lianda Company of the relevant situation when signing the construction contract, which was a fraud.

2. According to the investigation, Red Sea Company is small in scale and has a serious shortage of its own funds. After paying Gaojiazhuang a deposit of 3 million yuan in advance, there is no funds in the account.

Although it is common for real estate development to be financed during construction, the financing capabilities of the appellant Cao Yueshan and Red Sea Company should be comprehensively considered in terms of their ability to perform contracts. It is obvious that in the field of real estate development, real estate development companies of the size of Red Sea need to raise funds in society. The ability is very weak.

Red Sea Company lacks reliable financing channels. Objectively speaking, it had not raised any funds as of the time of the incident. It can basically be determined that it has no ability to perform the contract.

3. In this case, the part of the deposit collected from the construction unit was used to return the deposits paid by other companies and the company's daily expenses. It can be determined that Cao Yueshan had the purpose of illegal possession. Therefore, the appellant's behavior constituted the crime of contract fraud. "The female prosecutor said.

"The prosecutor can respond to the defender's defense opinions," the presiding judge said.

“Okay, in response to the defender’s defense, we express our views as follows:

1. Although the new residential project does exist, because Honghai Company failed to pay the project start-up capital, according to the contract, Gaojiazhuang Village has the right to choose other partners. Therefore, Honghai Company’s project rights are in an unstable state. It can also be said that the project has escaped the control of Red Sea Company.

2. Although there are situations in the real estate field where people get on the bus first and then buy tickets, it cannot be said that such behavior is legal. If you cannot buy a ticket, or you are not qualified to buy a ticket at all, then subsequent behavior will be suspected of fraud. Such is the behavior of Red Ocean Corporation.

3. Lianda Company came to the door many times to ask for the return of the deposit, but the appellant was unable to pay. In this case, the appellant used financing as an excuse to flee to Beijing in an attempt to avoid debts. It can be seen that the appellant was subjectively intentional and his behavior was fraudulent. sex……

Finished!" said the female prosecutor.

“The defender can respond to the prosecutor’s opinions,” the presiding judge said.

Fang Yi stopped the pen he was writing rapidly and responded to the female prosecutor's opinion: "Okay, presiding judge.

1. The real estate projects of Red Sea Company actually exist.

It is a fact that Red Sea Company signed a letter of intent for a new residential project with the Gaojiazhuang Village Committee and paid a deposit. Although it failed to pay the follow-up 50 million yuan in start-up capital as scheduled, the Red Sea Company carried out land leveling, road construction on the temporary construction land, and built worker housing and made preliminary preparations.

The Gaojiazhuang Village Committee did not stop the above-mentioned behavior of the Red Sea Company, nor did it terminate the contract with the Red Sea Company or discuss the development of the project with others.

Therefore, we believe that the cooperation agreement between the two parties has actually been performed. Even if Red Sea Company did not inform Lianda Company that the owner had the right to terminate the agreement, it cannot be inferred that Red Sea Company concealed the truth.

Although Red Sea Company only provided project renderings, the situation of "approving while working, getting on the bus first and buying tickets later" is common in the real estate industry, and the evidence provided by the prosecutor showed that Cao Yueshan informed Lianda Company when signing the contract The other party's project is the construction of new residential buildings. The project procedures are being processed and will be available soon. As a professional unit engaged in construction projects, Lianda Company should be aware of the incomplete or incomplete project procedures when signing the contract.

2. There is insufficient evidence to determine that Cao Yueshan illegally occupied Lianda Company’s 3 million deposit.

Judging from the evidence provided by the prosecutor in the first instance, Honghai Company made preliminary investment in the new residential project, and most of the deposit obtained from Lianda Company was used for normal project expenses (the deposit returned to the subsidiaries of the Urban Construction Group was also for the project normal development).

Red Sea Company’s initial investment in the temporary construction land formed relevant property rights, and the security deposit it received from Lianda Company was used to repay the project arrears, engineering costs and the company’s daily expenses. Cao Yueshan did not take the security deposit as his own Or squandering money, subjectively hoping to make the project successful and make money through the project.

Although financing behavior is an important reference for judging Cao Yueshan's willingness to perform the contract, the evidence about Cao Yueshan's financing behavior in this case is limited and cannot be determined to be true or false, and it cannot be determined.

Judging from the entire case, Cao Yueshan has been working hard on new residential projects. Although he had some concealment behavior when signing the contract with Lianda Company, the real estate development industry is a capital-intensive industry with large capital investment and high operating risks. Red Sea Company Although its own strength is insufficient, if it is properly financed, the possibility of eventual profitability cannot be ruled out.

Therefore, the defender believes that in this case, multiple factors such as the background of the project, Cao Yueshan’s efforts for project development, and the whereabouts and use of the deposit should be comprehensively considered to determine whether Cao Yueshan has the purpose of illegal possession, and it cannot simply be considered that Cao Yueshan is suspected of deceptive behavior and directly It is concluded that it subjectively has the purpose of illegal possession.

3. Lianda Company’s losses in this case can be completely remedied through civil means. As of the time of the incident, Red Sea Company still had a deposit of 3 million yuan in the Gaojiazhuang Village Committee account, and had also formed related property rights in the temporary construction project.

This case is different from common contract fraud crimes. The deposits collected by Cao Yueshan from the subsidiaries of the Urban Construction Group and Lianda Company were used for temporary construction facilities of new residential projects, normal company expenses, or the return of previously collected deposits. There was no squandering. Condition.

At the time of the incident, Red Sea Company was unable to repay Lianda Company's deposit, but Xinhai Company still had certain property rights in the temporary facilities that had been completed on the new residential project, plus the three-digit amount it paid to the Gaojiazhuang Village Committee. With a million yuan deposit, the company's overall balance sheet problem is not very prominent. If handled properly, Lianda Company's loss of three million yuan can be compensated.

The defender believes that although Cao Yueshan committed a certain amount of deception in the process of signing the agreement, it does not affect the victim Lianda Company’s relief through civil channels. Therefore, the first-instance judgment held that Cao Yueshan constituted the crime of contract fraud, which is inconsistent with the principle of modesty in the criminal law. of.

In summary, Cao Yueshan does not constitute the crime of contract fraud. complete. "Fang Yi said.

(The principle of modesty, also known as the principle of necessity. It means that the legislative body can only set certain behaviors that violate the legal order under the condition that the norm is indeed indispensable and there is no other appropriate method to replace the penalty. into a criminal act)