Private entrepreneurs must understand that the registered capital invested by an individual in the enterprise, or the profits obtained by the enterprise through legal operations, are not completely equal to the entrepreneur's personal funds before the enterprise is liquidated or profits are distributed. Among many enterprises in which the same boss holds shares or controls, the funds of this enterprise cannot be used as funds of another enterprise. If we do not have a clear understanding of these issues, mistaking the company's funds for the funds in our own wallets, treating private companies as our own treasury, and using the funds of this subsidiary company as the funds of that company, then we are likely to be disappointed. Dang went to jail.
For example, Wan Ping, the boss of Guangdong Zhengjin Group. There are two facts for the public prosecution to accuse Wanping of committing crimes:
The first case is 65438+. From February 2002 to April 2003, Wanping used his position as the general manager of ST Tianlong, the person in charge of ST Tianlong Dongguan Branch, Due to the convenient position of the actual person in charge of Guangdong Zhengjin Group, Wanping evaded company supervision and misappropriated 27 million yuan of funds from Dongguan Branch of Tianlong Group to Guangdong Zhengjin in the name of prepaying the upstream supplier of ST Tianlong Dongguan Branch to a company in Shenzhen. To this day, Not returned.
According to the provisions of Article 384 of the Criminal Law, the crime of misappropriation of public funds refers to the crime of misappropriation of public funds by state workers who take advantage of their positions to misappropriate public funds for personal use, conduct illegal activities, or misappropriate large amounts of public funds. , engaging in for-profit activities, or misappropriating a relatively large amount of public funds for more than three months.
1. Requirements for misappropriation of public funds
According to the provisions of Article 384 of the Criminal Law, the requirements for misappropriation of public funds are:
First, crime It is a complex object that not only infringes upon the ownership of public property, but also infringes upon the country's financial management system and the integrity of official conduct.
Second, from an objective aspect, the actor took advantage of his position and was good at taking advantage of his position.
Third, the subject of the crime of misappropriation of public funds is a special subject and must be a state worker.
Fourth, the crime of misappropriation of public funds is subjectively direct and intentional, that is, the perpetrator aims to illegally obtain the right to use public funds and knowingly embezzles public funds.
The four constituent elements of the crime of embezzlement are the objective criteria for identifying the crime of embezzlement, and are also the specific criteria for distinguishing crimes and non-crimes.
Second, the specific determination of misappropriation of public funds
In judicial practice, when determining whether it constitutes misappropriation of public funds, attention should be paid to the following key issues:
Second 1. Correctly understand whether the perpetrator has the subject qualifications for the crime of embezzlement. The crime of embezzlement of public funds is a crime committed by state functionaries. Anyone who does not have the status of a state employee cannot be guilty of embezzlement of public funds. On this issue, before the revision of the Criminal Law, the subjects of the crime of misappropriation of public funds included state workers, workers of collective economic organizations and other personnel handling public property management affairs. After the revision of the Criminal Law, staff of collective economic organizations and other personnel who handle and manage public property are no longer the subjects of the crime of embezzlement. If personnel of a company, enterprise or other unit misappropriate the funds of the unit, they shall be convicted and punished for the crime of misappropriating the funds of the unit in accordance with the provisions of Article 272 of the Criminal Law.
The second is to correctly judge the subjective intention of the perpetrator. The subjective aspect of the crime of misappropriation of public funds is direct intention, that is, the perpetrator knowingly misappropriates public funds in violation of financial disciplines with the purpose of illegally obtaining the right to use public funds. Negligence does not constitute this crime. If the perpetrator's work is negligent and public funds are illegally used by others, he cannot be punished for the crime of misappropriation of public funds. If a state employee is seriously irresponsible at work, causing public funds to be used by others for illegal activities, causing serious consequences, he may be held criminally responsible for the crime of dereliction of duty;
Third, it is necessary to correctly judge whether the perpetrator has used Embezzling public funds while in office. If the perpetrator does not take advantage of his position to obtain public funds for personal use, he cannot be held criminally responsible for the crime of misappropriation of public funds;
Fourth, attention should be paid to the distinction between misappropriation of public funds and borrowing of public funds. The difference between the two is: first, the crime of misappropriation of public funds is committed by the actor by taking advantage of his position, while borrowing public funds is a civil creditor-debt relationship between the actor and the unit; secondly, the crime of misappropriation of public funds is generally committed without the unit's knowledge. implemented under the circumstances. The unit does not know the whereabouts and use of public funds, and the borrowing complies with regulations and is approved by the person in charge of the unit, and is open to the public; finally, most misappropriation of public funds does not have formalities and IOUs, while borrowing public funds is generally approved through legal procedures and has a loan voucher. There are records in some books.
For example, when investigating the case of Wei's misappropriation of public funds at Nanping Station, we must strictly grasp the substantive requirements of Article 384 of the Criminal Law and pay attention to the boundaries between misappropriation of public funds and borrowing of public funds. After preliminary investigation, the false and true were eliminated, and analysis and research determined that the fact of Wei's misappropriation of public funds was clear and the evidence was reliable and sufficient.
Third, misunderstandings about the crime of misappropriation of public funds
1. The subject identification of the crime of misappropriation of public funds is completely consistent with the crime of corruption.
The crimes of misappropriation of public funds and corruption are both official crimes committed by state employees. Compared with them, their subjects are generally considered to be the same. However, when studying the provisions of Articles 93, 272, 382, ??and 384 of the Criminal Law, it is not difficult to find the difference between the two. The difference between the subject of the crime of misappropriation of public funds and the crime of corruption is that the scope of the subject of the crime of corruption is wider than that of the crime of embezzlement. Paragraph 2 of Article 382 of the Criminal Law stipulates that persons entrusted by state agencies, state-owned companies, enterprises, institutions, and people's organizations to operate and manage state-owned property may also constitute the subject of corruption crimes. In this regulation, the second paragraph is a separate paragraph and is parallel to the first paragraph, that is, the persons entrusted with the management and operation of state-owned property are parallel to the state staff and are not included in the list of state staff. Article 384 of the Criminal Law stipulates that the subjects of the crime of misappropriation of public funds are state workers, but this category of personnel is not included. Article 93 of the Criminal Law stipulates the categories of state functionaries. In this provision, state functionaries do not include persons entrusted with public affairs. It can be seen from these three provisions that the subject of the crime of embezzlement is different from the subject of the crime of corruption in that the subject of the crime of embezzlement does not include persons entrusted to engage in public affairs, while the subjects of the crime of corruption include. On February 16, 2000, the Supreme People's Court stipulated in the "Reply on How to Convict the Misappropriation of State-owned Funds for Entrusting the Operation and Management of State-owned Property" that non-state staff entrusted by state agencies, state-owned companies, enterprises, institutions, and people's organizations, The crime of misappropriating funds by taking advantage of one's position should be convicted and punished, which constitutes a crime. In this way, the difference between the subject of the crime of embezzlement and the subject of the crime of corruption is clarified in the form of judicial interpretation.
2. It is believed that whether personnel in a joint-stock enterprise constitute the subject of the crime of misappropriation of public funds should be determined based on whether it is a state-controlled enterprise.
After the reform and opening up, the ownership structure has become diversified and the nature of enterprises has become increasingly complex. There are different opinions on how to characterize the misappropriation of money by personnel in these enterprises. The most common one is whether the state-owned power is in the majority, that is, personnel in state-controlled enterprises are guilty of embezzlement of public funds, and personnel in non-state-controlled enterprises are guilty of misappropriation of funds. This division seems reasonable, but it is also biased. Once a joint-stock enterprise is established, it has a complete and independent nature and is different from any promoter or subscriber, including state-owned companies and enterprises that own shares, subscribe for shares, and hold shares. The company's legal person property is an independent legal person property and its nature is different from that of any investor. At present, relevant laws and regulations do not clearly provide for such crimes. The author believes that this kind of behavior can be solved by referring to the Supreme People's Court's "Reply on How to Convict Management Personnel in State-owned Capital-Controlled and Share-Participating Joint Stock Companies". The approval stipulates that personnel engaged in management work in state-owned capital-controlled joint-stock companies, except for personnel appointed by state agencies, state-owned companies, enterprises and institutions to engage in official duties, are not state workers. Anyone who takes advantage of his position to illegally take possession of the unit's property shall be convicted of the crime of official embezzlement. Although the approval does not clearly stipulate how to convict such personnel for the crime of misappropriation of funds, it has clearly stipulated that such personnel are not state workers (except for appointees), but the subjects of the crime of misappropriation of public funds are state workers. Therefore, if a managerial person in a joint-stock company controlled or participated by state-owned capital takes advantage of his position to misappropriate the company's funds to others or for his own use, he cannot be convicted of the crime of embezzlement.
3. It is believed that the personnel contracting of state-owned enterprises can be structured and become the subject of the crime of misappropriation of public funds.
In the reform of state-owned enterprises, contracting is an important form of enterprise restructuring. Contracting does bring benefits to some businesses, but it also brings many legal issues. How to characterize a contractor's misappropriation of corporate funds has become one of the prominent issues. Enterprise contracting is generally divided into two types: risk contracting and management rights contracting. Risk contracting means that regardless of whether there is profit or not, the contractor must pay a certain amount of profit to the contractor. If there is any remaining profit, it belongs to the contractor. This kind of contract has predefined boundaries because of the ownership of the company's property; regardless of whether the company is profitable or not, the contractor must pay a certain amount of profit.
In this case, if the contractor lends money to others, it should be within the scope of his authority and cannot constitute the crime of misappropriation of public funds. In the case of contracting of management rights, and the contracting party is a state-owned unit, the contractor is a person entrusted to engage in public affairs. Because contracting is an entrustment relationship, for people who do not have the status of state workers, because they contract state-owned units, people who perform official duties in state-owned units are those who are entrusted to perform official duties. As mentioned above, such persons may constitute the subject of the crime of corruption, but they cannot constitute the subject of the crime of misappropriation of public funds. Therefore, the author believes that those who contract state-owned enterprises commit the crime of misappropriation of public funds. Whether it is risk contracting or management contracting, they cannot constitute the subject of the crime of misappropriation of public funds. Personnel contracting state-owned enterprises also have a special status, that is, the contractor has the status of a state employee before contracting, which some people believe can constitute the subject of the crime of misappropriation of public funds. The mistake in this view is that it ignores an important element of the crime of embezzlement of public funds, that is, in addition to having the status of a state employee, the embezzler must also take advantage of his position when embezzling public funds. Because the contractor has already contracted, the misappropriation during the contract period has nothing to do with the original position. That is, the contractor's misappropriation of public funds is taking advantage of the convenience of the contract, rather than taking advantage of the convenience of the original state staff's official duties, so it cannot constitute the crime of misappropriation of public funds.
(3) Types of responsibilities and accounting legal responsibilities.
The so-called how to bear legal liability is actually a question of what kind of sanctions should be imposed on illegal acts. This is determined by the role and purpose of legal liability. Our country's legal circles believe that legal liability is the state's negative legal evaluation of illegal acts that violate statutory obligations. It is an adverse legal consequence and a means for the state to force those responsible to compensate and relieve the legitimate interests that have been infringed. This is actually a statement of purpose in the form of a definition of legal liability. From this, we can see two words that can be expressed in economics: "disadvantage" and "compensation". We can find that legal liability has two functions: (1) punishing violations of the law, which is what people usually call the deterrent effect of the law. Hereinafter referred to as the punishment effect. (2) For illegal acts that have already occurred, let the offenders bear the social costs caused by the illegal acts. Hereinafter referred to as the compensation effect. Based on these two functions of legal liability, we will examine the penalties for misrepresentation in different circumstances.
1. Punishment principles for negligence and fraud
According to the subjective attitude of the perpetrator, false statements are mainly divided into negligence and fraud. The difference between the two lies in whether the perpetrator is subjectively intentional. . If so, it means that the false information was presented intentionally and the illegal behavior is considered fraud. Rather, disinformation results from oversight. The main purpose of classifying subjective faults in different degrees in law is to determine the intensity of sanctions. There is a big difference between negligence and intentionality in the intensity and form of sanctions.
(1) Principle of Negligence Punishment
From the perspective of the role of punishment, the characteristic of negligence is that the negligent person did not expect that his behavior would be punished when he broke the law, so he would not Measure the expected utility of your actions. Therefore, it would make little sense to give the negligent a negative utility expectation for violating the law. Of course, mistakes cannot go unpunished, otherwise the perpetrators will adopt an irresponsible attitude towards their actions. However, as long as the punishment is maintained at a certain level, it will be enough to encourage people to act with caution.
From the perspective of the function of compensation, the meaning of compensation has nothing to do with the subjective attitude of the perpetrator. In other words, regardless of whether the perpetrator is intentional or negligent, the externalities caused by illegal acts should be eliminated. Therefore, the negligent person should bear the costs of violating the law.
(2) Punishment principle for fraud
Fraud has obvious characteristics: ① Fraud is an intentional act. (2) Scammers have anticipated the possible consequences of punishment when they act, so they will consider the possibility of punishment and cover up their crimes. Therefore, for fraud, penalties must take into account probabilistic factors. (3) Because the perpetrator hopes to see the harm result, the goal of punishment is not only to make the perpetrator’s behavioral utility negative, but to make the perpetrator feel the damage caused by the illegal behavior to society.
Based on the above fraud characteristics, we should distinguish two situations to determine penalties for accounting statement fraud.
The first situation: Compared with the social losses caused by illegal activities, the benefits are greater than or equal to the penalty rate of illegal activities. In this case, the main goal of the penalty is to prevent the fraudster from profiting from the fraud.
In the second case, the income from the illegal act is less than the penalty rate for the illegal act compared with the social losses caused.
The reason why this situation should be considered is that the benefits of many illegal activities are extremely disproportionate to the social costs. The benefits of illegal behavior are low, but the social costs are extremely high. As mentioned above, for intentional behavior, the purpose of punishment is not only to make the perpetrator feel disadvantageous, but to make him realize the damage his behavior has caused to society, so as to restrain his behavior. This may well be the case with accounting false statements. How should sanctions be determined in this case? In fact, in this case, the fraudster only needs to bear sanctions commensurate with the social losses caused by the fraud.
(3) Liability types and penalties in various illegal situations.
Based on the analysis of penalty principles in the previous section, this section discusses appropriate penalties for false statements under different illegal situations. First let’s look at the case of negligence. Negligence is not based on illegal gains. Penalties for negligence are based solely on the losses caused by the negligence. Therefore, according to the degree of loss, we can divide the fault into the following categories:
Slight negligence: the loss caused is very small, starting from the cost-benefit principle of legal sanctions, it is not worth initiating sanctions procedures.
General negligence: The damage caused is higher than that of slight negligence, but the amount of loss caused by general negligence is smaller, and the fault can generally be fully compensated by the negligent party. In this case, the legal sanction should be that the negligent person should bear civil liability for compensation. When the damage caused by negligence cannot be measured in monetary terms or the victim cannot be identified, appropriate administrative sanctions should be given, such as warnings, confiscation of illegal gains, fines, etc. The purpose of administrative sanctions is mainly as a warning, not as compensation.
Gross negligence: In the case of gross negligence, the loss caused by the negligence is huge and exceeds the negligent person's ability to compensate. At this time, the negligent party should first bear civil liability for compensation. Then, for the purpose of warning, administrative sanctions will be imposed at the same time, such as confiscation of illegal income, fines, suspension of CPA practice, etc. or even cancel their relevant qualifications. Generally speaking, administrative penalties for negligent behavior should be relatively light. After all, its role is to urge people to work carefully, not to reform bad ideas. So, should we bear criminal liability for serious negligence that causes huge losses? In the author's opinion, it depends on whether this situation is common. If such negligence cases occur frequently, it does not rule out that fraudsters conceal evidence of fraud. In this case, criminal penalties should be considered. At present, our country's criminal law does not provide for criminal liability for negligence in the case of false statements.
Let’s look at fraud again. Fraud can be punished based on illegal gains and the degree of social harm. According to the two standards of illegal income and social harm, we can divide fraud into the following situations to discuss its punishment:
Low social harm: In this case. Sanctions against them should first bear civil liability for compensation. No other sanctions can be applied to cases that are relatively easy to detect. For cases that are difficult to detect, administrative sanctions such as confiscation of illegal gains, fines, suspension of practice or disqualification should be imposed.
The social harm is great, and the difference between the social harm and illegal gains is within several times: in addition to civil liability, criminal liability is also required. Criminal sanctions should be based primarily on illegal gains and the possibility of discovery. Of course, since the criminal law has been violated, administrative sanctions should be imposed and the qualifications should be disqualified.
The above discusses appropriate legal sanctions for misrepresentation in various unlawful circumstances. Of course, the punishment of illegal acts itself is a complex legal issue, and variables including social damage and penalties are not necessarily directly quantifiable indicators. Moreover, there are many legal considerations in determining the intensity and method of punishment, which cannot be explained simply by utility. Therefore, the discussion in this section is simplified and theoretical, and the purpose of the above discussion is only to explain legal phenomena as a whole or to make theoretical deductions.
3. Sharing of civil liability
In the case of false statements, in most cases, there are several responsible entities: legal entities, unit directors, issuance underwriters and other intermediaries All may be held responsible, so there is a question of how to share legal liability among the responsible entities. From the perspective of the disciplinary function of legal liability, the punishment that each responsible party should receive for illegal acts cannot be replaced by each other. However, administrative liability and criminal liability can only serve as a punishment. Therefore, the administrative and criminal responsibilities of each party should be determined based on the circumstances of their respective violations, and there is no issue of responsibility sharing. However, from the perspective of the function of compensation, the civil compensation function of each responsible party is the same. Who will compensate the victim does not affect the effect of compensation.
How to allocate civil liability should be based on the degree of fault of each party. In fact, it should follow the principle of efficiency, that is, the less efficient the behavior, the more responsibility he should bear. Using this principle, we will analyze how responsibility is shared in various situations.
* * *Same as fraud: From the perspective of the cost of preventing infringement, the subjective and intentional party has the lowest cost. The conduct of each responsible party is necessary to commit the fraud. Therefore, the behavior of each responsible party in the fraud is completely inefficient, and they are all liable for compensation, that is, they are jointly and severally liable. In this case, the amount of compensation should be distributed according to the proportion of the illegal income of each responsible person. If some responsible persons have insufficient compensation capacity, the shortfall shall be borne by other responsible persons in proportion.
Multiple parties' negligence: In the case of multiple parties' negligence, any party can reduce the possibility of infringement as long as it maintains a cautious attitude that meets legal requirements. Therefore, any responsible party must bear certain responsibilities. Therefore, in the case of * * * negligence, the amount of compensation should be allocated according to the severity of each responsible person's fault. Those responsible for relatively serious negligence bear more responsibility, and those responsible for relatively minor negligence bear less responsibility. Because the conduct of the negligent person is not completely inefficient like fraud, the civil liability for negligence should be limited to the amount of compensation determined by the negligent person based on the principle of relative fault, that is, joint and several liability or proportional liability. That is, joint and several liability should not apply to multiple faults.
Someone is responsible for fraud, and some are responsible for negligence: If the person responsible for fraud has the ability to compensate, the person responsible for fraud should bear all liability for compensation, and the person responsible for negligence can only be given administrative penalties. The part that the person responsible for fraud cannot bear shall be borne by the person responsible for negligence, but only to the extent that the person responsible for negligence shall be punished. That is, the person responsible for negligence shall not bear joint and several liability for the part that the person responsible for fraud cannot compensate. According to the principles of the first two situations, the person responsible for the fraud shall bear joint and several liability; among the persons responsible for the negligence, the liability shall be distributed according to the principle of relative fault.
For example, the Qiong Minyuan incident is one of the major violations in the Chinese stock market: Hainan Minyuan Modern Agriculture Development Co., Ltd., which was listed in 1993, is mainly engaged in real estate and agriculture. In 1995, its profit was only 380,000 yuan. The junk stocks with the lowest stock prices. In its 1996 annual report, the company reported a profit of 57.1 million yuan. The company's stock price also soared, rising from 2 yuan per share in early 1996 to 25 yuan at the end of February 1997, creating the myth of a 12-fold increase.
On the afternoon of February 28, 1997, Qiong Minyuan held the 1996 Annual General Meeting of Shareholders, but it did not close on time. The board of directors decided to continue the meeting on the afternoon of March 3, and applied for a trading suspension of Qiongminyuan A during the meeting, and would resume trading after the resolution of the shareholders' meeting was announced. However, on March 3, all board members resigned, resulting in the failure of the shareholders' meeting resolution to be announced, and Qiong Minyuan was suspended from trading for a long time.
On April 29, 1998, a joint investigation team composed of the Securities Commission of the State Council, the National Audit Office, the People's Bank of China, and the China Securities Regulatory Commission, after more than a year of investigation into suspected violations in the 1996 annual report of Qiong Minyuan Company, The investigation results were finally announced, and the Qiong Minyuan case came to light.
It turns out that the bright future of successfully entering Beijing Real Estate 1996, whose profits increased 1,000 times compared to the previous year, would enter the communications field and own a listed company in the United States. It was actually a scam; behind the serious data inaccuracies , Minyuan Hainan Company, the controlling shareholder of Qiong Minyuan, teamed up with Shenzhen Nonferrous Metals Finance Company to make huge profits in the secondary market. According to statistics, as of 1996, 65438+February 31, Qiongminyuan Company had only 49,400 registered shareholders. However, by February 28, 1997, the number of shareholders had soared to more than 107,000, of which 98,000 shareholders held insufficient shares. 3000 shares. In other words, in the two months before the spleen stopped, the bankers who turned Qiong Minyuan from an ugly duckling into a swan had stayed away. The retail investors who flocked to the market based on the performance of Qiong Minyuan's annual report had become the company's main public shareholders.
On April 29, 1998, the China Securities Regulatory Commission announced the investigation results and handling opinions on the Qiong Minyuan case: Qiong Minyuan reported fictitious profits of 569 million yuan in 1996 and an inflated capital reserve of 657 million yuan; In view of the fact that Ma Yuhe, the former chairman and general manager of Qiong Minyuan, and others are suspected of creating false financial data, the China Securities Regulatory Commission will transfer the relevant materials to the judicial authorities and investigate their criminal liability in accordance with the law.
On June 10, 1998, the Beijing No. 1 Intermediate People's Court held a hearing on the case.
The complaint alleges that the defendant Ma Yuhe signed a false contract between May 1996 and October 1997 in order to create the illusion that Qiong Minyuan's performance was good and to take over the 100 billion yuan convertible bonds issued by Beijing Kaiqi Communications Co., Ltd. "Cooperative Housing Contract", "Equity Transfer Contract", "About Beijing Minyuan". By circulating loans and fabricating 4 false profit sources, Qiong Minyuan's total profit in 1996 was 500 million yuan (the China Securities Regulatory Commission said the fictitious profit was 540 million yuan). Later, he instructed the defendant Ban Wenshao (Qiong Minyuan Accounting) to compile these four fictitious profits into the company's financial accounting report for 1996 and submit it to the China Accounting Firm for audit. Defendant Ma Yuhe instructed defendant Ban Wenshao to cooperate with Hainan Dazheng Accounting Firm to evaluate the company's assets without approval from the state-owned assets management department, and the fictitious capital reserve increased by 657 million yuan. It was published in the media on October 22 and February 1, 1997 65438+, misleading investors and seriously damaging the legitimate rights and interests of Qiong Minyuan shareholders and the public.
On June 5438+02, the Beijing No. 1 Intermediate People’s Court made a first-instance judgment on the “Qiong Minyuan” case: former chairman of Hainan Minyuan Modern Agricultural Development Co., Ltd. and director of Beijing Minyuan Building Chairman Ma Yuhe of Beijing Kaiqi Communications Company was sentenced to three years in prison in the first instance for providing false financial accounting reports; Wen Shao, a retired cadre of Beihai Accounting Firm in Guangxi Zhuang Autonomous Region and an accountant employed by Hainan Minyuan Modern Agriculture Development Co., Ltd. , was sentenced to two years in prison and suspended for two years for the same crime.
Judging from the above cases, "Qiong Minyuan" company has achieved such amazing results in just one year, and anyone with a little accounting knowledge will be suspicious.
First of all, huge profits are puzzling. The comparison of Qiongminyuan Company's performance in 1995 and 1996 is as follows:
It can be seen that the company's total profit and net profit in 1996 increased by 848 times and 1290 times respectively compared with 1995. For this extraordinary growth, the company explained that "the company's strategic decision to invest in Beijing has achieved great success, opening up and cultivating new profit growth points for the company to obtain high returns, and providing a reliable guarantee for the company's stable and sustained profits in the future." "This vague explanation is really unconvincing. Of the actual total profit of 570 million in 1996, 540 million was fictitious. It was the result of Qiong Minyuan Company signing invalid cooperative housing construction and rights transfers with affiliated companies (Hong Kong Champion Real Estate) and other companies without approval from relevant state departments. The contract was fabricated.
Secondly, the huge financial reserves are puzzling. Where did the company's new capital reserve of 657 million come from? The capital reserve column of the annual report reads: "The reason for the increase in capital reserve can be found in the explanation that the current period's number increased by more than 30% compared with the previous period's number." But in the 11th item "Comparison of the current period's number and the previous period's number" In the description, there is no mention of capital reserve fund. After the incident, the relevant departments discovered through investigation that the so-called increase of 657 million in capital reserves was caused by Qiong Minyuan's asset evaluation of four investment projects without obtaining land use rights and approval from relevant national departments. This capital reserve of 657 million is obviously inflated.
So, why does "Qiong Minyuan" do this? Needless to say, there are huge financial interests behind it. It has now been verified that Minyuan Hainan Company, the controlling shareholder of Qiong Minyuan, and Shenzhen Nonferrous Metals Finance Company jointly purchased a large amount of Qiong Minyuan stocks, then used fictitious profits to sell "good news", causing the stock price to rise sharply, and then waited for an opportunity to sell large quantities of stocks. To make huge profits. In this illegal act of manipulating the stock market, the two companies made illegal profits of 66.51 million yuan and 6.63 million yuan respectively.
Although relevant personnel of "Qiong Minyuan" cannot escape responsibility in this case, Hainan Zhonghua Accounting Firm, which audited the annual report of "Qiong Minyuan", and Hainan Dazheng Accounting Firm, which issued the asset appraisal report, also have responsibilities. An unshirkable responsibility. Because, in the face of such a substantial increase in profits and capital reserves in the 1996 annual report of "Qiong Minyuan", certified public accountants with audit expertise should naturally pay enough attention and maintain due professional prudence. However, the fact is that CPA did not do this. On the contrary, when many investors raised questions about the capital reserve, surplus reserve, and undistributed profits, Hainan Zhonghua Accounting Firm also stood up to defend Qiong Minyuan Company, claiming that "the authenticity of the statements is beyond doubt." It can be seen that the serious consequences of the "Qiong Minyuan" case are largely related to the dereliction of duty of the certified public accountants and to some extent, their contribution to the flames.
According to the Independent Auditing Standards, when auditing financial statements, in addition to the general evidence collection methods such as inspection, inventory and confirmation, the most commonly used analytical review procedures are also followed. The so-called analytical review procedure refers to the comparative analysis of various data on important items in the accounting statements of the audited unit to check whether there are any abnormalities in the statements. If abnormal changes occur, the CPA must follow up the audit and grasp the root causes and evidence of the abnormal changes. This is the basic knowledge of annual report audit. If the certified public accountants in the "Qiong Minyuan" case could conduct substantive tests on items with abnormal changes such as "capital reserves" and "undistributed profits" in accordance with the requirements of the independent auditing standards, and obtain information that can explain the reasons for the abnormal changes, Reliable evidence, or carefully checking the relevant accounting records and original vouchers for the increase in capital reserve, checking whether the asset valuation has been approved by the relevant departments, whether the valuation method is in compliance, and then issuing relevant statements, the above consequences will not occur.
IV. Management and Prevention of False Accounts
False accounting has caused profound economic, social and political harm in real life, and has become an important factor in improving the market economic system and promoting the rule of law. A major public hazard, it has become the focus of close attention and great attention from the central leadership to the general public.
(1) Controlling False Accounts
The fundamental reason why my country’s accounting fraud has become increasingly chaotic and has become a social nuisance is that it has not established a truly orderly legal liability system for accounting fraud, but instead focuses on accountability Administrative liability and necessary criminal liability sanctions. The author believes that it is necessary to establish a legal liability system for false accounting that is dominated by civil liability for false accounting, focused on criminal liability for false accounting, and supplemented by administrative liability for false accounting.
1. Construction of legal liability for false accounts
(1) Civil liability for false accounts
Accounting behavior is essentially a civil contract behavior. Accountants' false accounting is essentially a violation of the accounting contract, and they should bear liability for breach of contract. A major flaw in my country's current accounting regulations is that the concept and provisions of accounting contracts are incomplete, resulting in a lack of legal basis for pursuing civil liability for false accounting accounts, inadequate punishment for those responsible for false accounting accounts, and the inability to establish the lofty authority and dignity of accounting regulations. Accounting The implementation effect and social benefits of regulations are extremely low. The main purpose is to establish liability for breach of contract and standardize tort liability for false accounting.
(2) Criminal liability for false accounting
Criminal liability for accounting fraud refers to the criminal legal consequences that must be borne if accounting behavior is prohibited by criminal laws and regulations. Although my country's criminal law stipulates criminal liability provisions for false reports produced by certified public accountants in their practice, due to factors such as light penalties and difficulty in identifying false standards, the current trend of certified public accountants participating in false reports is becoming more and more intense, which brings serious consequences to investors, operators, creditors and the government. Macroeconomic control has caused immeasurable losses.
(3), False accounting administrative responsibility
Bank with false accounting accounts