Application form/application
Applicants: Wu Youming and Chen Xiaoyu, lawyers of Guangdong Desai Law Firm.
Application: release the suspect immediately.
Reason:
Fang XX, a criminal suspect, was detained by the Economic Investigation Detachment of Zhuhai Municipal Public Security Bureau on X, 2009 on suspicion of contract fraud. We accept the entrustment of his family and provide him with legal aid according to law. After meeting the criminal suspect to understand the relevant case, consulting the relevant evidence materials provided by the client, and studying the relevant laws, regulations, normative documents and academic explanations, we believe that this case belongs to an ordinary civil contract dispute and does not belong to contract fraud. Therefore, according to the requirements of the criminal suspect and his family in this case, and according to the provisions of Article 96 of the Criminal Procedure Law of People's Republic of China (PRC), we solemnly apply for the immediate acquittal of Party XX, and implore the investigation organ of this case to make a decision quickly.
I. Basic overview of the case
1.On X, X, 2007, the transferor XX and the transferee Wang X, Wang XX, the supervisor Guangdong XX Law Firm and the guarantor Zhongshan City and Zhongshan City * * * signed the Equity Transfer Agreement, stipulating that the transferor would transfer the equity of Zhuhai Red Apple XX Co., Ltd. (hereinafter referred to as Red Apple Company) to the transferee at a total price of 38 million yuan. The agreement clearly stipulates the subject, the scope of the subject matter of transfer, the price and payment method of equity transfer, the undertaking of creditor's rights and debts, guarantees, promises and statements, performance and liability for breach of contract, annexes to the agreement, dispute settlement, entry into force of the agreement and matters not covered.
At the same time, the transferee Wang X, the transferor XX and the supervisor Yang XX of Guangdong XX Law Firm signed the Capital Supervision Agreement. Since then, the transferee has successively transferred 25.5 million yuan to the transferor through Yang XX, Guangdong XX Law Firm, and the transferor mortgaged a piece of land of 55,079.7 ㎡ under the name of Red Apple Company to the transferee as collateral to collect the above money. After receiving the payment of 25.5 million yuan, the transferor directly deducted the lawyer's fee of about 500,000 yuan from Guangdong Yang XX Law Firm, then paid the interest on the bank loan of Red Apple Company of about 7 million yuan, paid the company's playground equipment construction fund of about 1 1 10,000 yuan, and remitted 5.6 million yuan to the land transaction center to pay the land price. The whole capital flow is through transfer, which belongs to normal flow and expenditure.
2. On XX, 2008, the transferor XX and the transferee Zheng XX, Zheng XX and Zhuhai Red Apple XX Co., Ltd. signed the Equity Transfer Agreement of Zhuhai Red Apple XXXX Company, signed the Supplementary Agreement on XX, 2008, and signed the Supplementary Agreement II on XX, 2008. Party A transferred its equity of Company C to Party B, The total price of this equity transfer is RMB110 million yuan only (including land and above-ground amusement facilities). It is clearly stated in the equity transfer agreement that a piece of land of 55079.7m2 under the name of Red Apple Company has been mortgaged to a third party. In the penultimate line on page 3 of the agreement, it is clearly stipulated that "once an effective judgment, civil mediation or settlement agreement is made to determine the principal, interest or liquidated damages and other expenses payable by Party A to the third party, Party B will pay the principal, interest or liquidated damages and other expenses payable by Party A to the third party in advance", so there is no act of concealing facts to defraud other people's property. In XX, 2008, the equity transfer registration formalities were completed, and the transferee only paid 2 million yuan.
Second, the definition of contract fraud in criminal law
The crime of contract fraud refers to the act of defrauding the other party's property by fraudulent means for the purpose of illegal possession during the signing and performance of the contract.
Article 224 of the Criminal Law of People's Republic of China (PRC) clearly stipulates five situations in which fraudulent means are used: (1) fictional units or signing contracts in the name of others; (2) Mortgaging with forged, altered or invalid bills or other false property rights certificates; (three) to perform a small contract or part of the contract first, to deceive the other party to continue to sign and perform the contract, and to have no actual performance ability; (4) After receiving the payment for goods, advance payment or secured property paid by the other party; (5) defrauding the other party's property by other means.
In the judicial practice of "by other means", there are mainly the following situations: after accepting the loan, money, advance payment or secured property paid by the parties, they neither perform the contractual obligations nor return it without justifiable reasons, and use it for illegal activities; Used for profligacy, so that it cannot be returned, and so on.
To draw a clear line between the crime of contract fraud and contract disputes, the key lies in whether the actor subjectively has the purpose of illegally occupying the property of the other party, and objectively whether he uses the economic contract to defraud the other party of a large amount of property. (Zhou Daoluan and Zhang Jun, eds., Detailed Explanation of Criminal Law Accusations, People's Court Press, 3rd Edition, 165438+2007 10, p. 393).
Three. Party XX does not constitute the crime of contract fraud.
(1) subjectively, Party XX has no intention of defrauding the other party's property for the purpose of illegal possession.
First, the transferor does have the real purpose and behavior of transferring the equity. In the transaction with Wang X and Wang XX, the transferor provided the joint and several liability guarantee of the two units, and mortgaged 55,079.7 ㎡ of land to the transferee, especially the contract payment in this case was supervised by Guangdong XX Law Firm. In this case, it is difficult to establish the crime of contract fraud for the purpose of identifying illegal possession.
2. In the second transfer between Zheng XX and Zheng XX, it has been clearly stated in the equity transfer agreement that the equity has been previously transferred to a third party, and a piece of land of 55,079.7 ㎡ under the name of Red Apple Company has been mortgaged to a third party, and it is clearly stipulated in the penultimate line on page 3 of the agreement: "In the event of an effective judgment, civil mediation agreement or settlement agreement, Party B shall pay Party A in advance to the third party after determining the principal, interest or liquidated damages that Party A should pay to the third party. Therefore, the second transfer has no purpose of illegal possession at all. On the contrary, it can be seen that the transferor conducts the transaction in good faith, tries to avoid harming the interests of the third party, and has no intention of deliberately concealing the facts and selling more shares.
Third, in the first transfer, Party XX did not intentionally cheat when concluding the contract, and was able to perform the contract after concluding the contract, but the main reason for not performing the contract in the end was that there was a third-party quotation of 1. 1 billion yuan, which was 72 million yuan higher than the original quotation. In order to maximize the interests of the company and shareholders, it is a right permitted by law that the transferor is willing to bear the liability for breach of contract. Obviously, an ordinary civil contract dispute is completely different from contract fraud.
(2) Party 2)XX has no objective behavior of defrauding the other party's property by fraudulent means.
First of all, in this case, under the supervision of Guangdong XX Law Firm, the transferor XX, Fang X and Fang XX transferred 65,438+000% equity of Red Apple Company to the transferee Wang X and Wang XX, and Zhongshan XXXXX provided joint liability guarantee, and mortgaged a 55,079.7m2 land under the name of Red Apple Company to the transferee. This is a civil legal act with legal effect.
Secondly, Article 19 of the Equity Transfer Agreement signed by Sifang * * * stipulates: "If Party A violates this Agreement, Party B has the right to terminate this Agreement, recover the paid transfer money and interest, and charge Party A with a penalty of RMB 6,543,800+million". If the transferor sells the equity to a bidder with a higher bid, it will only constitute a breach of contract for the transferee Wang X and Wang XX. This is a common economic contract dispute in contract law. The Transferor is willing to refund the actually collected RMB 25.5 million and bear the liquidated damages of RMB100000. This is justified and reasonable, only because Wang X and Wang XX proposed to compensate them for up to 50 million yuan and interest, which eventually failed to reach an agreement. This further shows that this case is a genuine economic dispute. For economic disputes, the interested party Wang XX, etc. If negotiation fails, you can bring a civil lawsuit to the court without suing the public security organ.
Thirdly, Party XX did not squander the contract money or run away. After receiving the payment of 25.5 million yuan, Fang XX, as the transferor, was directly deducted about 500,000 attorney's fees from Guangdong Yang XX Law Firm, and then paid about 7 million yuan for the bank loan interest of Red Apple Company, 6.5438+0.65438+0.00 million yuan for the playground equipment construction of the company, and remitted 5.6 million yuan to the land trading center to make up the land price. The whole capital flow belongs to normal flow and expenditure, and there is no extravagance and waste.
Fourthly, in the second transfer of Zheng XX and Zheng XX, it has been made clear that the equity has been previously transferred to a third party, and 55,079.7m2 of land under the company name has been mortgaged to a third party, and the liability for breach of contract has been reasonably arranged to avoid losses to Wang X and Wang XX, and to avoid violating the principle of good faith and defrauding illegitimate interests.
Finally, Article 224 of the Criminal Law of People's Republic of China (PRC) strictly defines five situations in which fraudulent means are used. Fang Jianhua's behavior does not conform to the criminal law. According to the principle of a legally prescribed punishment for a crime, it is not considered a crime if there is no explicit provision in the law. We think it is totally inappropriate to characterize civil contract disputes as contract fraud.
To sum up, in the process of signing and performing the agreement, Party XX did not intentionally conceal the truth, fabricate facts or defraud other people's property subjectively, and objectively did not cheat the other party's property by fraudulent means. We believe that Party XX does not constitute contract fraud at all, and hereby submit an urgent complaint report, requesting the immediate acquittal of Party XX for your approval.
I am here to convey
Zhuhai bureau of public security jingzhen detachment
Guangdong Desai lawyer office
Authorized Agents: Wu Youming and Chen Xiaoyu.
April 9(th), 2009