Q: How to defend the crime of natural persons as a unit crime, so as to reduce the guilt of natural persons?
According to the Supreme People's Court's Interpretation on Relevant Issues Concerning the Specific Application of Law in the Trial of Unit Crime Cases and related theories of criminal law:
1. The subjects of the crime of establishing a unit include: companies, enterprises and institutions, including both state-owned and collectively-owned companies, enterprises and institutions, as well as legally established joint ventures and cooperative enterprises and wholly-owned and private companies, enterprises and institutions with legal personality.
2. Identification of unit crime: The unit crime is decided by the decision-making organ of the unit according to the decision-making procedure of the unit, implemented by the directly responsible personnel, and seeks illegal interests in the name of the unit or for all or most members of the unit. The basis for the establishment of unit crime is the express provisions of the criminal law.
3, deny the reasons for the unit crime:
(1) Companies, enterprises and institutions established by individuals for illegal and criminal activities commit crimes;
(2) After the establishment of companies, enterprises and institutions, their main activities are to commit crimes;
(3) embezzling the name of a unit to commit a crime and distributing the illegal income to individuals who commit the crime;
4. Punishment of unit crime: Under normal circumstances, the unit is fined, and the directly responsible person in charge and other directly responsible personnel are punished.
Because once it is recognized as a unit crime, the criminal suspect as a natural person will be greatly relieved of his guilt. Therefore, the unit often becomes a way for natural persons to shirk their responsibilities, and defense lawyers will also strive for the argument of unit crime.
Specific to the case, it is of great significance for judicial practice, especially for defense work, to learn from the court's judgment thinking on how to identify unit crimes.
This paper selects the following six cases to analyze how the court denies unit crime. On this basis, how to formulate the corresponding defense strategy is clear at a glance, and this article will not repeat it.
First, after its establishment, it focused on illegal crimes and denied unit crimes.
Jin Moujia and Wang Moujia illegally absorbed public deposits and raised funds for fraud.
The court held that the case put forward by the defendant Wang Moujia's defender should be a defense opinion of unit crime. According to Article 2 of the Supreme People's Court's Interpretation on Relevant Issues Concerning the Specific Application of Law in the Trial of Unit Crimes, "companies, enterprises and institutions established by individuals for illegal and criminal activities commit crimes, or after the establishment of companies, enterprises and institutions, the main activity is to commit crimes."
We believe that "Jintian Agricultural Technology Cooperative in Xinhua District of Cangzhou City" was legally established by industrial and commercial registration, but the business scope of the cooperative approved by the industrial and commercial department is to organize the purchase of members' products, introduce new technologies and varieties, purchase fertilizers in a unified way and provide technical training, but it does not have the function of absorbing public deposits. Although the cooperative has carried out some business activities according to the approved business scope after its establishment, its main business activity is to absorb public deposits, so it is not regarded as a unit crime. Therefore, this defense opinion is not adopted.
Second, personal accounts, control funds, and deny unit crimes.
The first-instance criminal judgment of Yu Jing's case of illegally absorbing public deposits
The court held that in response to the defender's defense opinion that the case should be considered as a unit crime, it was found through trial that the actual controller of Tongling Jiufang Transportation Co., Ltd. was Yu Jing, who illegally absorbed public deposits on the grounds that the company needed funds for its operation and he was engaged in steel business. Without the consent of other shareholders and members, all the absorbed funds were remitted to Jing's account, and Jing decided the use of the funds, so this case should not be considered as a unit crime.
3. A sole proprietorship enterprise denies unit crime.
Case, criminal judgment, first instance of Zhou Guofang's crime of illegally absorbing public deposits
The court held through trial that Zhou Guofang, the defendant, registered and established Huangmei Dengdu Oil Processing Factory in June 5438+February 65438+July 2004, which was a sole proprietorship enterprise. A sole proprietorship enterprise does not have the qualification of subject of criminal responsibility and independent legal person, and cannot be the subject of unit crime, so this case should not be treated as a unit crime.
According to Article 2 of the Law on Solely Owned Enterprises, a sole proprietorship enterprise as mentioned in this Law refers to a business unit established in China according to this Law, which is invested by a natural person, and its property is owned by the investor, who shall bear unlimited liability for the debts of the enterprise with his personal property. Therefore, a sole proprietorship is different from a one-man company.
Four, without the resolution of the shareholders' meeting, the funds are used and distributed by individuals, denying the unit crime.
Case, Lishui City People's Procuratorate of Zhejiang Province sentenced Ji Jia, Ji B, Ji C, Zhou XX and Yin XX to fund-raising fraud.
The court held that this case was a crime committed by the defendant Ji Jia and other units or a personal crime. After investigation:
(1) In this case of illegal fund-raising, Ji Jia and other individuals issued IOUs, and this individual was the borrower. Although it is guaranteed by the public at the request of the fundraiser, the guarantee behavior has not been discussed and decided by the shareholders' meeting, which forms a resolution of the shareholders' meeting, reflecting the individual will rather than the unit will;
(2) The fund-raising system is decided by Ji Jia and other individuals through oral discussion. According to the defendant's confession and the testimony of relevant senior executives, it is confirmed that the decision on XXX was discussed orally by Ji Jia and others, not by the shareholders' meeting or by the unit;
(3) The raised funds are used and distributed by individuals. Most of the illegally raised funds are not put into public accounts and managed by special personnel. They only report to Ji and his son. Ji Jia and others can decide at will to dispatch and withdraw funds from corporate accounts, corporate accounts and personal accounts. To sum up, this case should be considered as an individual crime, not a unit crime. Defendants Ji A, Ji B, Ji C, Ding and their defenders have insufficient reasons to commit unit crimes and will not be adopted.
5. Crime of withdrawing capital contribution and property confusion, personal crime of Qian Weimin and unit crime.
The People's Procuratorate of Hangzhou City, Zhejiang Province committed a crime of loan fraud.
The court held that the defendant Jin's defender put forward the defense opinion that the subject of the crime in this case was Dejun Company rather than Jin's individual. After trial, it is considered that:
(1) The industrial and commercial registration materials of Dejun Company, the details of bank account transactions and the testimony of witness Bao Mou mutually confirm that neither Jin nor Bao Mou, shareholders of Dejun Company, actually contributed capital, and the defendant Jin was illegally established by withdrawing capital contribution. The above facts were confirmed by another defendant Jin's statement in court;
(2) The transaction details of Defendant Gold, Dejun Company and other relevant bank accounts prove that Defendant Gold and Bao's personal account controlled by Defendant Gold have frequent and random capital transactions with Dejun Company's account, and most of the capital transactions in Dejun Company's account actually come from Defendant Gold borrowing from others, so Dejun Company and Defendant Gold's property are mixed, including debts, and there are no independent company assets; The testimony of witnesses Ruan Mou, Mou Peng and Bao Mou unanimously confirmed that the actual controller of Dejun Company was gold, while another shareholder Bao Mou was only nominal and did not participate in the actual operation of Dejun Company, which was confirmed by another defendant's confession of gold, so Dejun Company did not have independent legal person will; The above evidence is enough to prove that Dejun Company has no independent legal person will and property, so it does not have the basis of independent liability subject for criminal responsibility;
(3) The transaction details of the bank account extracted in this case are mutually confirmed with the confession of the defendant Gold. The defendant Gold defrauded the loan of China Everbright Bank in the name of Dejun Company, which was mainly used to repay the previous debts rather than to operate. The above evidence is true and sufficient, which proves that Dejun Company is only a tool for defendant Gold to defraud the bank to repay old debts and maintain capital operation. In this case, the defendant Gold, not Dejun Company, defrauded the bank loan. Therefore, the above defense opinions are inconsistent with the facts and legal provisions found in the trial and will not be adopted.
Six, criminal behavior reflects the will of the individual, the interests also belong to the individual, denying the unit crime.
Case: Nanhai District People's Procuratorate of Foshan City committed the crime of providing false documents. Criminal judgment: Certificate of Automobile Maintenance.
The court held that the defendant Li's defender proposed that Li's bribery should be recognized as a unit bribery crime. After investigation, the actual owners of the company and Luonan checkpoint are Li, and it is entirely up to him to decide who to pay bribes and how much to pay bribes, which reflects his own will. The interests ultimately belong to him, so it should be considered as personal bribery, not unit bribery, and his defender's defense opinion on this point cannot be established and will not be adopted.
Summary: According to the cases, the cases of denying unit crime are as follows: after the establishment, illegal crime is the main business; Personal account, control funds; Sole proprietorship enterprise; Without the resolution of the shareholders' meeting, the funds are used and distributed by individuals; Evading capital contribution, confusing property, and using criminal funds for personal use; Criminal behavior reflects individual will, and interests also belong to individuals.