1. The prosecution opinion is wrong in ascertaining the facts. It is concluded that . x has never served as the head of a company's financial business department;
2. The prosecution opinion law was improperly applied, and this case should be a unit crime. Guangdong ZX Investment Co., Ltd. was not established for criminal purposes. Although there was a criminal act of illegally absorbing public deposits in the later period, the decision was unanimously made by the company's executive meeting. The entire process of absorbing funds was also under the supervision and control of the company, and the benefits gained from absorbing funds also belong to the company as a whole;
3. For unit crimes, only the person in charge and other directly responsible personnel who are directly responsible for the unit's actions will be held criminally responsible. X does not belong to the second category of persons who should be held criminally responsible.
To sum up, it is recommended that your hospital not prosecute X and that HZ Branch Hospital change the compulsory measures.
The details are as follows:
(1) X has never served as the head of a business unit, and no one except M has identified him as having held this position. The determination of X's position in the prosecution opinion is completely wrong and has no evidence to support it.
The prosecution opinion found that X served as the head of the sales department from March 2014 to mid-2015 and was responsible for financing business. This is inconsistent with the objective facts and is not supported by any evidence. x has never held the position of, let alone the head of a corporate financial business unit.
All oral evidence other than that of M, including whistleblower S, proves that X has never been the head of a business unit.
Due to the inherent instability of verbal evidence, as well as the different understanding, memory and expression methods of the case by different persons involved, the description of X’s specific position in the company is slightly biased, but one thing can be concluded: Even these people did not identify him as the head of the business department.
(2) The statements of other persons involved in the case within the company can form a consistent direction, proving that the head of the business department was replaced by Z, BG, P, etc., and that X has never held this position. The position is deputy director of the project department.
Based on the existing evidence, it can be determined that P will serve as the business director after joining the company. The key lies in who held the position before P joined the company.
1.p As he assumed the position of business director after joining the company, it can be concluded that he himself confessed to this fact.
2. There are different opinions about who was the business director before P joined the company, but except for m, none of them pointed to X.
(3) The prosecution opinion is only based on M’s unilateral accusation that X was a business manager, which does not comply with the basic rules of evidence.
First, it is the basic rule of evidence recognition that isolated evidence is not established. Among the evidence currently filed in the case, only one person, M, confessed that All other descriptions contradicted. In terms of probative power, believing M’s confession also violates the basic rules of evidence appraisal.
Thirdly, X’s appointment as business manager is also inconsistent with the basic facts currently established. The business director has a commission of one ten thousandth of the performance of the entire business department, and has the motivation and purpose to actively develop customers. However, X did not charge any commissions from beginning to end. No customer in the client commission table was X, and X was not the financial manager of any informant. This is inconsistent with X’s status as a business director and is not consistent with common sense.
(1) ZX Company was not established for criminal purposes and did not absorb funds from the public in advance. Instead, it began to illegally absorb public deposits nearly six months to one year after its establishment.
ZX Company was established at the end of 2013, with early shareholders actually investing 150,000 yuan. Although the company also borrowed money from abroad when it was founded, it was not made public. It was mainly borrowed by several shareholders through personal relationships.
As for raising funds from the public by distributing leaflets and holding promotion meetings, it was proposed by Y after he joined the company and was decided by the company's senior management. At this time, it had been at least half a year since the legal establishment of ZX Company (the time of Y’s motion in the oral evidence was inconsistently described).
This can also be confirmed from the whistleblower’s investment time (they all started investing in mid-to-late 2014, of which S2014 entered the company in March, but his own investment time was October 2014, and then his wife WM was allowed to invest in February Investment reflects that the company did not invest in employees and other communities in the early stage.
(2) The act of absorbing funds from the public reflects the company's overall will, and the business process is carried out in the name of the unit. Control, all criminal proceeds belong to the unit, and it should be deemed as a unit crime according to law.
Whether the behavior reflects the overall will of the unit, whether it is carried out in the name of the unit, whether the business process is controlled by the unit, and whether the criminal proceeds belong to the unit ( Seeking benefits for the company) is a necessary condition to determine whether it should be considered a crime committed by the company.
First, the public fundraising was implemented after Y proposed a motion and passed the resolution of the company's senior management meeting. , this behavior reflects the overall will of the company;
Secondly, although the company employees signed the contract in their personal names, they were all done in the name of the company, and the company also came forward to guarantee the loan contract and the reporter knew it. The money is borrowed by the company and transferred to the designated account in accordance with the company's requirements, and the behavior is carried out in the name of the company;
Thirdly, the personal bank card used to absorb funds is kept and accounted for by the company. There is a complete business process system and financial approval circulation system, and the business process is always under the company's control. At the same time, in order to dispel the doubts of the person who used the bank card, the company also issued a "certificate" to the latter (during the investigation phase). Submit) to prove that the bank card is used by the company;
Fourthly, the funds raised from the public are also used for the company’s external investment projects, and all criminal proceeds belong to the company, and the behavior itself is for the benefit of the unit. < /p>
(1) Identification of the persons directly in charge and other persons directly responsible for unit crimes
According to Article 31 of the Criminal Law [24], in unit crimes, only those directly responsible shall be punished. The person in charge and other directly responsible personnel
According to the "Minutes of the National Court Symposium on Trial of Financial Crime Cases", the directly responsible person in charge is the person who decides, approves, instigates, condones, and directs the unit's crime. The person who plays a role is generally the person in charge of the unit, including the legal representative. Other directly responsible persons are those who commit the crime and play an important role in the unit's crime. They may be the unit's managers or employees, including the accused. Personnel hired or hired. It should be noted that in unit crimes, it is generally not appropriate to hold criminal responsibility for persons who are assigned or ordered by the unit leader to participate in the commission of a certain crime.
According to the "Minutes of the Symposium on Handling Environmental Pollution Criminal Cases", the "directly responsible person in charge" in unit crimes generally refers to the person in charge who decides, approves, organizes, plans, directs, instructs, and condones the unit's crime, including the actual control of the unit. person, main person in charge or authorized person in charge, senior management personnel; "other directly responsible persons" generally refers to those who actively participate in the implementation of unit crimes or play a major role in the specific implementation of unit crimes under the command and instruction of the directly responsible person in charge. Great role personnel.
According to the "Criminal Trial Reference" Case No. 1284, the case of Suzhou Anpai Precision Electronics Co., Ltd., Pang Meixing, and Luo Zaixu in Xu Kaixu's issuance of special value-added tax invoices: managers were deceived and incorrectly performed their duties, or Although he knew that others intended to commit crimes, he did not actually participate in important work such as decision-making, approval, instigation, connivance, and command. However, he was assigned or ordered by his superiors to complete his duties because of the obedience of his subordinates. Due to the lack of intention or initiative to commit crimes, and their powers usually only involve procedural matters, it is difficult to have a substantial impact on the final decision of the unit to commit crimes, and it is generally not suitable to be identified as the person directly responsible. Whether it constitutes a crime is not necessarily related to the position, status, or power. The key is whether the manager's participation in the unit's crime has played the five important roles of "decision, approval, instigation, connivance, and command" mentioned in the "Summary". If the manager does not play the above-mentioned important role, even if the manager is the top leader and main person in charge of the unit, he should not be directly responsible for the unit's crimes.
(2) X is neither the directly responsible person in charge nor any other directly responsible person, and should not be listed as a target of prosecution.
First, although X has the status of a shareholder of ZX Company, its decision-making power on specific matters is in a state of vacancy. The company’s power is controlled by M and Y. It cannot “decide, approve, or instigate” , connivance, command, etc.” I don’t pay attention to the company’s affairs at all, otherwise I wouldn’t be the only shareholder among the detainees who resigned midway;
Second, at the executive meeting where Y proposed to raise funds from the public X also objected;
Thirdly, regarding the illegal absorption of public deposits, Bank cards are used for accounting, let alone play a leading role in specific business.
To sum up, X is neither the directly responsible supervisor with decision-making power nor other directly responsible personnel who plays a leading role in specific business, and should not be listed as a target of prosecution.
(C) M’s statements about who proposed the public fundraising are inconsistent, unstable and of low credibility.
As to who initiated the public fundraising, M’s confession is inconsistent with that of all other registered persons. However, after reviewing all of M's confessions, it was found that their confessions were inconsistent, unstable and of low credibility.
In the two interrogation transcripts in 20200416, M insisted that His confession is inconsistent, logically confusing, lacks basic stability, and has low credibility.
(4) The fact that S was not held criminally responsible in this case also reveals the internal logic of the public security organs treating this case as a unit crime.
The informant s in this case played a much greater help and leading role than X in the case of ZX Company illegally absorbing public deposits. However, S has not taken any coercive measures so far, and has not even been prosecuted.
If the investigating agency regards this case as the same crime between natural persons, then this situation is undoubtedly puzzling. As a company executive, there is no reason to commit a crime by actively participating in absorbing overseas funds.
Only by treating the case as a unit crime can the logical consistency between the characterization of the entire case and non-prosecution be achieved.
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To sum up, the defender believes that the prosecution opinion is wrong in ascertaining the facts. People; I hope your hospital will not prosecute X and suggest that the HZ branch change the compulsory measures against X.