Jianfeng Group is a collective-owned enterprise approved by Huizhou Municipal People's Government of Guangdong Province and registered in Daya Bay Economic and Technological Development Zone of Huizhou City. The president of the company is Chai Moumou. 1995 12.20, Jianfeng Group, Guangdong Zhongshan Hua Gang Industry and Trade Co., Ltd. and Linhai Municipal Government reached an investment intention on the second-phase water supply project of Linhai tap water. 1May, 1996, Jianfeng Group and Hua Gang Company established Linhai Water Supply Co., Ltd., with Jianfeng Group holding 60% and Hua Gang Company holding 40%. The purpose of the establishment of Yuanshui Company by shareholders of both parties is mainly to invest in the second-phase water supply project of Linhai tap water to solve the drinking water problem of hundreds of thousands of people in Linhai City. The total investment and construction fund of this project is 46.3835 million yuan, including15.77039 million yuan invested by China Port Company and 30.665438+0.365438+0.65438+0.000 million yuan invested by Jianfeng Group. The project was successfully completed on July 1998, and water was officially supplied to Linhai City.
In April, 20001year, Hua Gang Company thought that it had inflated its investment, so it filed a civil lawsuit with the court, demanding Jianfeng Group to return the investment increased by Hua Gang Company due to inflated investment. In the case of obvious unfavorable civil litigation, Hua Gang Company turned to the public security organ to lodge a complaint, arguing that Jianfeng Group and Chai Moumou were suspected of economic crimes, and * * * listed 18 "charges" and requested the public security organ to file a case for this. Linhai Public Security Bureau filed a case in the first half of 2002, and five groups respectively read all the accounts of 36 subsidiaries of Jianfeng Group for more than ten years. Results None of the 18 "charges" reported by Hua Gang Company was established. However, in addition to 18, Linhai Public Security Bureau convicted Chai Moumou for "misappropriation of funds" and took compulsory measures on bail pending trial on July 2, 2003 for alleged misappropriation of funds.
On June 6, 2003, 165438+ The investigation of Linhai Public Security Bureau ended, and Chai Moumou was transferred to Linhai People's Procuratorate for review and prosecution on suspicion of misappropriating funds. In the Prosecuting Opinion of Linhai Public Security Bureau, the fact that Chai Moumou was suspected of misappropriating funds mainly has two parts:
1. Chai Moumou, as a director of the company, decided to invest or lend the company's funds of 365,438+ten thousand yuan to others in his own name. Of which 165438+ 10,000 yuan was invested in Beijing Dongda Bao Zheng Technology Co., Ltd., and 2,000,000 yuan was lent to individual shareholders of the company.
2. Chai Moumou decided that Shui Yuan Company would contribute 500,000 yuan to serve as the director of Linhai Jianfeng Water Purification Co., Ltd.. Shui Yuan Company's funds of 365,438+0,955 and 400 yuan were appropriated to Jianfeng Group and its subordinate units for business activities.
During the period, for the sake of prudence, the lawyer handling the case entrusted the consulting department of Zhejiang Law Society to organize experts and scholars such as Dr. Ruan, a professor of criminal law in the Law Department of Zhejiang University, and Dr. Yu Shizhong, a professor of criminal law in the Law Department of Zhejiang University of Technology to discuss. Then he went to Beijing and entrusted the State Key Research Base-Criminal Law Science Research Center of Renmin University of China for demonstration. The expert committee appointed China famous criminal law experts, Zhang, Zhang and Huang Jingping to participate in the demonstration. The conclusion of the second statement is that Chai's behavior does not constitute the crime of misappropriating funds. The main reasons are:
First of all, the right to control the funds in the account of Shui Yuan Company is not in Shui Yuan Company, nor in its other shareholder, Hua Gang Company, but in Jianfeng Group. Because during the establishment of Shui Yuan Company, Jianfeng Group and Hua Gang Company agreed that the water supply project would be contracted by Jianfeng Group as a whole, and it was a one-time contract, and the profit and loss had nothing to do with Hua Gang Company. The funds in the account of Shui Yuan Company are the contracted project funds paid by Shui Yuan Company to Jianfeng Group, and Jianfeng Group has complete control over the funds in the account of Shui Yuan Company. Including the transfer of relevant funds to other enterprises in the group.
Secondly, according to the first paragraph of Article 272 of the Criminal Law, the misappropriation of company funds by company staff must be for personal use, which can constitute the crime of misappropriation of funds. Misappropriation of company funds for the use of this unit cannot constitute the crime of misappropriation of funds. The actual situation is that Chai used the borrowed funds in the name of Shui Yuan Company, and his behavior cannot constitute the crime of misappropriating funds.
Third, the public security organ accused Chai Moumou of "misappropriating" all the funds, which was decided by the leadership of Jianfeng Group. It was neither decided by Chai Moumou nor used by him personally. Therefore, his behavior does not meet the requirements of "unauthorized misappropriation of unit funds" required by the crime of misappropriation of funds, and cannot constitute the crime of misappropriation of funds.
During the review and prosecution by Linhai Municipal People's Procuratorate, Linhai Municipal People's Procuratorate returned it to Linhai Municipal Public Security Bureau for supplementary investigation on February 5, 2003 and May 28, 2004. Linhai Public Security Bureau has not added new evidence. Twice transferred to the procuratorate for review and prosecution. On June 5438+1October 65438+August, 2005, Linhai People's Procuratorate filed a public prosecution with Linhai People's Court for Chai Moumou's alleged misappropriation of funds. The fact that the People's Procuratorate of Linhai accused Chai Moumou of misappropriating funds is only the second paragraph of the prosecution opinion of Linhai Public Security Bureau, that is, Chai Moumou allocated 500,000 yuan from the company to himself, Chai, Wang Dang and the registered capital needed to set up Linhai Jianfeng Water Purification Company for capital verification.
On February 17, 2005, Linhai People's Court held a hearing on Chai Moumou's misappropriation of funds. During the trial, the defense lawyer pleaded not guilty. On April 1 1 day, 2006, Linhai People's Court made a criminal judgment (2005)No. 135, adopted the defense opinions of defense lawyers and found Chai Moumou innocent.
After the verdict was pronounced in the first instance, Linhai People's Procuratorate lodged a protest with Taizhou Intermediate People's Court on April 20, 2006 on the grounds that the verdict in the first instance found that the facts were wrong and the applicable law was improper.
On May 24th, 2006, Taizhou Intermediate People's Court held a hearing to hear Chai Moumou's protest case of misappropriation of funds. During the trial, the defense lawyer insisted on the defense view of the first instance and continued to defend Chai Moumou's innocence. On June 6, 2006, Taizhou Intermediate People's Court made a criminal ruling (2006) No.3, which rejected the protest and upheld the original judgment.
The focus of the dispute is on this case. There is no dispute between the prosecution and the defense that the misappropriation of unit funds for the registered capital required by individuals to set up a company for capital verification belongs to "misappropriation of funds for personal use and profit-making activities" as stipulated in the criminal law. The focus of the dispute between the prosecution and the defense is: Is Chai Moumou's allocation of 500,000 yuan for personal registration of Jianfeng Water Purification Company based on his authority as a director of Shui Yuan Company (actually performing the duties of chairman) or the authority of chairman of Jianfeng Group? If it is the former, there is no doubt that Chai Moumou constitutes the crime of misappropriation of funds; If it is the latter, Chai Moumou does not constitute the crime of misappropriating funds.
Defense lawyers believe that Chai's behavior does not meet the subjective and objective elements of the crime of misappropriating funds. The reason is:
1.1Before July, 1998, the second-phase diversion project of linhai tap water undertaken by Shui Yuan Company was contracted by Jianfeng Group, which had complete control over the funds of Shui Yuan Company, and Chai Moumou, as a director of Jianfeng Group, had the right to allocate the funds of Shui Yuan Company.
2. Jianfeng Group signed an agreement with Hua Gang Company to control the funds of Shui Yuan Company during the construction of South-to-North Water Transfer Project. In order to ensure the safety of funds, the land certificate of 38,000 square meters of Shangcheng Co., Ltd., a subsidiary of Jianfeng Group, was used as the capital safety guarantee of Hua Gang Company before the water supply. If Jianfeng Group uses the funds of Shui Yuan Company for other purposes, Hua Gang Company has the right to use the guarantee certificate and collateral for other purposes without the consent of Jianfeng Group.
3.1July, 1998, the second stage diversion project of Linhai tap water was completed. 1999101On October 28th, Jianfeng Group settled with Hua Gang Company. Hua Gang Company still owes Jianfeng Group1400,000 yuan, and 500,000 yuan involved in this case has been included in the investment funds received, and all the investment funds have been settled by the shareholders of both parties.
4. Chai Moumou's behavior of withdrawing money is not fulfilling the authority of the director of Shui Yuan Company, but the authority of the chairman of Jianfeng Group. Therefore, Chai Moumou does not constitute the crime of misappropriating funds subjectively and objectively.
The prosecution believes that Jianfeng Group did not manage Shui Yuan Company as a legal person as a whole. During the period of Jianfeng Group and its contracted projects, the management and decision-making of the company were not managed by Chai Moumou alone, and Jianfeng Group could not transfer the funds in the company account in actual operation. The reason is:
First of all, Shui Yuan Company is a limited liability company and an independent legal person, and Jianfeng Group is a collective legal person enterprise. Shui Yuan Company is not a subsidiary or subordinate enterprise of Jianfeng Group, and its legal person property is independent, and its independence has not changed because of the water diversion project and the contractual relationship. As the project was contracted to Jianfeng Group, Shui Yuan Company did not transfer the management right. For example, at that time, the salary of financial management personnel of Shui Yuan Company was still paid by Shui Yuan Company, not by Jianfeng Group; The construction of Jianfeng Group needs funds, and Yuanshui Company has the obligation to timely allocate funds, and so on. There is no evidence in this case that the management right of Yuanshui Company was handed over to Jianfeng Group.
Secondly, Jianfeng Group is not managed and operated by Chai Moumou alone. As explained by Chai Moumou, the decision to allocate a large company in North JD.COM to purchase equity and lend money to the shareholders of the company was decided by the main leaders of the group through collective discussion.
Third, Jianfeng Group has no right to transfer funds to the account of Shui Yuan Company. The evidence that the court finds is two agreements, and the court actually misinterprets and misreads the agreements. The Capital Guarantee Agreement guarantees the safety of the capital invested by China and Hong Kong, and the 500,000 yuan in this case is neither owned by Jianfeng Group nor invested by China and Hong Kong, but the capital borrowed by Shui Yuan Company for special construction, which is not within the guarantee scope of the Guarantee Agreement, so the evidence material lacks relevance to this case; In addition, the Capital Guarantee Agreement only shows the preventive measures taken by Hua Gang Company against the possible risks of the invested capital, and never shows that Hua Gang Company agrees that Jianfeng Group can use the capital for matters unrelated to the project, which just shows that Hua Gang Company has a negative attitude towards the misappropriation of the invested capital. The shareholders' agreement signed by Jianfeng Group and Hua Gang Company on May 8, 1996/KLOC-0 confirmed the relationship of rights and obligations between Jianfeng Group and Hua Gang Company, not with Shui Yuan Company, so it is irrelevant to this case. The court did not adopt the "General Contract Agreement for the Second Phase of South-to-North Water Diversion Project" signed by Shui Yuan Company and Jianfeng Group on June 65438+June 65438+June 6, 1996, which made it clear that all creditor's rights and debts incurred by Shui Yuan Company during the project contracting period were enjoyed and borne by Jianfeng Group, indicating that Shui Yuan Company required the contractor, namely Jianfeng Group, to use the project funds for the project construction. As mentioned above, Shui Yuan Company and Jianfeng Group are two independent legal persons, and both have independent management rights over the company's funds. These two agreements did not change Shui Yuan's control over the company's funds.
Trial judgment
In the case of Chai Moumou misappropriating funds, Linhai People's Court ruled him not guilty in the first instance. The reason is:
The shareholder agreement signed by Jianfeng Group and Hua Gang Company and the contract agreement signed by Shui Yuan Company and Jianfeng Group stipulate that Jianfeng Group shall undertake the water diversion project that should have been undertaken by Shui Yuan Company at one time, and shall be responsible for all legal responsibilities caused by the project, such as project quality, project completion period, project schedule and project design. All creditor's rights and debts incurred during the project contracting period have nothing to do with Hua Gang Company; In order to ensure the safety of funds, Jianfeng Group takes the land certificate of its subordinate enterprises as the guarantee for the safety of funds of Hua Gang Company. Judging from the way of contracting, the source water company is actually managed by Jianfeng Group, and the management and decision-making of the source water company during Jianfeng Group and its contracted projects are actually managed by the defendant Chai Moumou. Jianfeng Group can transfer the funds in the account of Shui Yuan Company in actual operation. Therefore, the existing evidence cannot prove that the defendant Chai Moumou has the subjective intention of misappropriating funds. The public prosecutor accused the defendant Chai Moumou of committing the crime of misappropriating funds.
After the judgment of the first instance, the People's Procuratorate of Linhai filed a protest with Taizhou Intermediate People's Court on the grounds that the judgment of the first instance found the facts wrong and the applicable law was improper, and Taizhou Intermediate People's Court made a final ruling. Reject the protest and maintain the acquittal of the first instance. The reason is:
1On May 6, 1997, Chai Moumou registered capital for the water purification company, and instructed Zhou Jun, deputy general manager of the company, to transfer RMB 500,000 to the temporary account of the water purification company. However, according to the shareholder agreement signed by Jianfeng Group and Hua Gang Company and the contract agreement signed by Shui Yuan Company and Jianfeng Group, Jianfeng Group contracted the water diversion project that should have been undertaken by Shui Yuan Company, which will be fixed at one time. Jianfeng Group shall be responsible for all legal responsibilities such as project quality, project completion period, project progress and project design caused by this project. All creditor's rights and debts incurred during the project contracting period have nothing to do with Hua Gang Company; In order to ensure the safety of funds, Jianfeng Group takes the land certificate of its subordinate enterprises as the guarantee for the safety of funds of Hua Gang Company. Judging from the above contracting methods, Yuanshui Company is actually managed by Jianfeng Group, and its foreign investment and fund allocation are manipulated and decided by Chai Moumou. Therefore, the existing evidence can't confirm that Chai Moumou has the subjective intention of misappropriating funds, and it is not improper for the court of first instance to acquit Chai Moumou. The protest organ suggested that Chai Moumou's behavior constituted a crime of misappropriation of funds, which could not be established and would not be adopted.
Classical analysis
It took six years for Chai Moumou to misappropriate funds from filing a case for investigation to acquittal in the second instance. On the one hand, it consumes a lot of judicial resources, on the other hand, it brings endless losses to enterprises. Looking back on the investigation, prosecution and trial of this case, we think there are three legal issues worth discussing.
First, the object of the crime of misappropriation of funds. According to Article 272 of the Criminal Law, the object of the crime of misappropriating funds must be the funds of the unit. In this case, Jianfeng Group obtained the fund allocation and use right of Shui Yuan Company based on the guarantee of the contractual relationship between Shui Yuan Company and Huagang Company. Therefore, in this case, there is no problem that Chai Moumou misappropriated the funds of the source water company.
Second, the understanding of the objective meaning of the crime of misappropriating funds.
Misappropriation literally has two meanings: (1) to divert some money for other purposes; (2) Private use (public funds). But this is only the literal meaning of misappropriation, and it does not reveal the legal characteristics of misappropriation. From the legal point of view, the so-called misappropriation refers to the transfer of funds for private use without legal approval in violation of the financial management system. To accurately identify the crime of misappropriation of funds, we must first correctly understand and grasp the legal meaning and characteristics of misappropriation, while the judicial and theoretical circles often ignore the research on the legal meaning and characteristics of misappropriation when studying and discussing the crime of misappropriation of funds. We believe that misappropriation should include the following legal features:
(1) Illegality of misappropriation. The illegality of misappropriation means that misappropriation is not only manifested in violation of national laws and regulations or relevant financial management rules, but also in the absence of legal approval and permission. If the act of using money for personal use is approved by legal procedures and does not violate the relevant financial management system, it is impossible to constitute the crime of misappropriating funds.
(2) the selfishness of misappropriation. The selfishness of misappropriation means that the embezzler misappropriates funds for himself or others. If it is for the public interest, it is impossible to constitute the crime of misappropriating funds.
(3) misappropriation of personal will. The personal will of misappropriation means that the misappropriation behavior is determined by the personal will of the embezzler and is carried out by the embezzler without authorization. If it is the will of the unit, not the will of the individual, the crime of misappropriating funds cannot be established.
The above three legal characteristics of misappropriation are closely linked, and the crime of misappropriation of funds cannot be established without any of them.
In this case, it is a long-term objective historical fact that Jianfeng Group is managed and operated by Chai Moumou alone. Chai Moumou's management and operation of Jianfeng Group and its source water company during the project contracting period was actually carried out on behalf of the company, which was in line with the business practice of Jianfeng Group, so this case did not meet the objective behavior characteristics of "misappropriation".
Third, the crime of misappropriating funds has direct intention subjectively, and the actor must subjectively misappropriate the funds of his own unit knowing that it is. In other words, the actor should be aware of the illegality of his behavior. In this case, Chai Moumou subjectively only thinks that he is distributing funds normally and performing his duties according to the authority of the chairman of Jianfeng Group. He didn't know the illegality of his behavior, so this case doesn't conform to the subjective characteristics of the crime of misappropriating funds.
Based on the above three aspects, this case does not constitute the crime of misappropriating funds objectively or subjectively.