Procuratorial organs fully perform their procuratorial functions
Typical cases of promoting the development and growth of the private economy
Case one
Shanghai Jin, Liu, Wang and other 69 people contract fraud case
【Keywords】
Contract fraud, litigation supervision, integrated performance of duties, recovery of stolen goods
【Abstract】
Procuratorial organs handling contract fraud cases involving private enterprises should persist in performing their duties as a whole, clarify the boundaries between criminal and civilian, and accurately determine the criminal act of committing contract fraud against a large number of private small and micro enterprises in the name of operation. In handling cases, it is necessary to give full play to functions such as case filing supervision, timely intervention, and guiding investigations, to ensure that procuratorial supervision is timely and that follow-up supervision is effective. At the same time, efforts should be made to recover stolen goods and losses, effectively safeguard the legitimate rights and interests of private small and micro enterprises, and optimize the effectiveness of case handling.
【Basic facts of the case】
Since July 2014, defendants Jin, Liu and others have established Company A to engage in catering investment and franchise activities. In order to seek illegal profits, since 2018, Jin and others have split the network center, call center, operation center and other departments of Company A to establish 29 affiliated companies, upgrading them to the unified operation of Group A. Through Group A's "quick move" in the process of signing and performing the contract to cheat the franchise fee, in the process of forming a criminal group with Jin as the main element, relatively fixed personnel at all levels and a clear division of labor.
When Group A did not have operational capabilities and relevant qualifications, Jin and others used the method of frequently changing brands in a short period of time to attract foreign investment and join through self-operation or cooperation with Wang Moumou to establish a certain company. In the process of investment promotion, Group A lured private small and micro enterprises and other market entities to sign contracts and defraud the franchise fee by fictitious milk tea brand influence, fictitious operation capabilities, providing false authorization, and hiring celebrity endorsements. In order to cover up the truth of the fraud, Group A perfunctory to the legitimate operational needs of franchisees, resulting in a large number of franchisees failing to operate, and after generating civil litigation in franchise disputes, it evaded the refund obligation by transferring funds. By the time the case came to light, Group A had defrauded more than 5,800 franchisees across the country of more than 440 million yuan, causing a large number of private small and micro enterprises to suffer major economic losses.
In May 2022, the Shanghai Songjiang District Procuratorate successively prosecuted 69 defendants, including Jin, Liu, and Wang, for contract fraud. From September 2022 to March 2023, the Shanghai Songjiang District Court sentenced Jin to 14 years and six months in prison, deprivation of political rights for three years, and a fine of 500,000 yuan for contract fraud; Liu Moumou, Wang Moumou and other other defendants were sentenced to fixed-term imprisonment ranging from 12 years to 3 years and 1 month, and fined accordingly. Some of the defendants appealed, and the second instance upheld the original judgment, and the judgment has taken effect.
The prosecutor reads the indictment.
【Procuratorial Authority's Performance of Duties】
(1) Clarify economic disputes and criminal offenses, and supervise and file major cases involving private enterprises in accordance with law. On March 15, 2021, a franchisee applied to the Songjiang District Procuratorate for supervision of a case of a certain company defrauding milk tea brand franchise fees. After acceptance, the Songjiang District Procuratorate found through civil judgment inquiries that there were many franchisees in similar situations, and after review, it was found that although from the perspective of individual cases, the form was a franchise contract dispute, a large number of similar disputes reflected that a certain company in Dong had maliciously breached the franchise contract after signing the franchise contract and defrauded the franchise fee, which was suspected of contract fraud. The Songjiang District Procuratorate issued a Notice of Request for Explanation of the Reasons for Not Filing a Case and suggested that the public security organs investigate Group A, which has a cooperative relationship with a certain company in the east. The public security organ decided to file a case for investigation on March 22, 2021.
(2) Continue to guide investigations, give play to the integrated role of procuratorates, and build an evidence system for alleged crimes. Due to the large number of people involved, the large amount of money, and the complexity of evidence and materials, there are major differences in the determination of crime and innocence, economic disputes and economic crimes. The Songjiang District Procuratorate requested the municipal branch to jointly study and demonstrate the key issues, clarify the legal relationship one by one, and at the same time intervene in the investigation to guide the collection of evidence. The first is to find out the criminal methods, guide the public security organs to extract from the massive electronic data Group A's "famous brand" investment page snapshots, false authorization letters, and the franchise contracts of each brand to find out that there are fictitious operation teams, promotion services and other "routines" in the franchise link. The second is to find out the willingness and ability to perform the contract, guide the public security organs to sort out the personnel structure, and verify that Group A is operated by the same group of people who constantly change companies, brands and locations, and respond passively after completing the investment promotion, and prove the falseness of Group A joining by comparing with the joining process of well-known brands. Third, clarify methods for collecting evidence, and promptly guide public security organs to fix evidence by means such as victims' self-statements and collecting civil judgments in response to problems such as the large number of victims, wide distribution, and difficulty in collecting evidence.
(3) Protect victims' rights and interests, and do a multidimensional job of recovering stolen goods and recovering damages. The Songjiang District Procuratorate insists on attaching equal importance to cracking down on crime and recovering stolen goods and losses, and cooperates with the public security organs to comprehensively find out the whereabouts of the funds involved in the case. The first is to increase the intensity of recovery of stolen goods, guide the public security organs to freeze more than 40 million yuan of funds involved in the case of Group A, seize 10 sets of real estate, and urge the defendants to take the initiative to return nearly 2 million yuan in the procuratorial process. The second is to broaden the channels for recovering losses. After review, the Songjiang District Procuratorate found that a celebrity had failed to fulfill its duty of prudence in endorsement of the brand involved in the case and was at fault, and accordingly, the Songjiang District Procuratorate formulated and issued procuratorial recommendations to the star's brokerage company, making suggestions on regulating celebrity advertising endorsement activities, maintaining the order of the advertising market, and protecting the legitimate rights and interests of consumers. The brokerage company then took the initiative to refund the endorsement fee, and the star apologized to the public through Weibo and made a statement to stop the endorsement.
【Typical significance】
(1) Strengthen procuratorial performance of duties, ensuring that oversight roles are fully and promptly brought into play. This case is the first "routine joining" contract fraud case in Shanghai, and the behavior is highly confusing. For cases where criminal and civil are intertwined, procuratorial organs pay attention to accurately grasping the composition of the crime, strengthening review of key issues such as whether there is fraud or illegal possession purpose, paying attention to substantive judgments, clarifying the characterization of the case, and promptly supervising the public security organs to file and investigate the case. At the same time, intervene in the investigation in a timely manner, guide the public security organs to collect evidence throughout the process, transform the idea of proof into the direction of evidence collection and evidence standards, and continuously consolidate the basis for facts and evidence identification. Continued to play the function of litigation supervision, and successfully pursued and prosecuted more than 20 people.
(2) Strengthen the integrated performance of duties, ensuring accurate characterization and strong accusations. In the handling of difficult and complex new types of cases, adhere to the linkage and integrated performance of duties at the three levels of courts. The three levels of courts jointly reviewed and relayed the discussion to comprehensively demonstrate the idea of criminal accusation, and determined that Group A's intentional exaggeration of operational capabilities and fictitious brand information were in line with the characteristics of contract fraud; His acts such as evading and transferring funds and maliciously evading the enforcement of civil litigation fully reflect that the defendant has the purpose of illegal possession, and meet the requirements for the crime of contract fraud. In order to ensure accurate accusations, it was also found that the gang had Jin as the main element, fixed important members and ordinary members, a clear hierarchical structure, a clear horizontal division of labor, and shared illegal profits, which could be identified as a criminal group. In the end, Jin and the other seven principal criminals were sentenced by the court to more than 10 years in prison and severely punished by the law.
(3) Strengthen the active performance of duties to ensure that the recovery of stolen goods is timely and that losses are fully recovered. Persist in paying equal attention to fighting crime and recovering stolen goods, and strive to recover losses for private small and micro enterprises that joined the murder. In handling cases, procuratorial organs guide public security organs to strengthen the collection and fixation of evidence on the flow of funds while collecting evidence for fixed convictions and sentencing, and promptly seal and seize real estate and other assets purchased with unlawful gains. Make full use of the leniency system for admitting guilt and accepting punishment, do a good job of explaining the law, and urge defendants to take the initiative to return the stolen goods and make restitution. Take multiple measures at the same time to regulate the behavior of non-contemporary dialects, urge the refund of endorsement fees, and recover economic losses to the greatest extent.
Case 2
The case of Duan and Xue in Qingcheng County, Gansu Province
【Keywords】
Internal corruption, protest and judgment, financial risk prevention, industry governance
【Abstract】
Procuratorial organs gave full play to their legal supervision functions, accurately lodged protests, and the two levels of procuratorial organs formed a joint supervisory force, and cases were revised according to law, effectively punishing corruption within enterprises. Formulate and issue procuratorial suggestions for internal problems of financial institutions, supervise and plug management loopholes, promote industry governance from point to point, and help prevent and resolve financial risks.
【Basic facts of the case】
From March 2016 to December 2018, while serving as a teller, vault administrator and cashier in the business department of a financial institution in Qingcheng County, Gansu Province, Duan took advantage of his position to handle false cash deposit business and falsely deposited 99 funds into personal bank accounts under his control, totaling more than 5.52 million yuan. In addition, Duan and Xue, the person in charge of a business office of a financial institution in Qingcheng County, jointly took advantage of their positions to use unit funds to return Duan's private loans through false deposits and false fund transfers, resulting in a loss of 3.7 million yuan in funds of the financial institution. The amount involved in the case was more than 9.22 million yuan, of which 3.7 million yuan was involved in the joint position embezzlement with Xue.
In November 2019, the Qingcheng County Procuratorate in Gansu Province prosecuted Duan and Xue on suspicion of embezzlement. In July 2020, the Qingcheng County Court sentenced the defendant Duan to five years' imprisonment for the crime of misappropriating funds, holding that Xue was unaware of Duan's act of withdrawing funds until the time of the crime, and that there was no joint criminal intent between the two parties, let alone the implementation of the crime, and declared Xue not guilty.
Procuratorial personnel appear in court to support the prosecution.
In August 2020, the Qingcheng County Procuratorate filed a protest in accordance with the law, and in April 2021, the Qingyang Municipal Procuratorate supported the protest in accordance with the law, and the Qingyang Intermediate Court ruled to remand for retrial. In March 2022, the Qingcheng County Court sentenced Duan to seven years in prison and fined him 500,000 yuan for the crime of embezzlement; Xue was sentenced to two years in prison, suspended for three years, and fined 200,000 yuan. After the verdict was pronounced, the second defendant appealed, and the Qingyang Intermediate Court ruled to dismiss the appeal and uphold the original judgment in accordance with the law.
【Procuratorial Authority's Performance of Duties】
(1) Perform legal oversight duties, accurately filing protests in accordance with law. After the judgment of the court of first instance, the Qingcheng County Procuratorate, after review, found that the judgment was indeed wrong: First, the evidence in the case could prove that Duan knew that he had no ability to repay the loan, and used the misappropriated funds to return personal loans, high interest, as well as purchase of houses, purchase of luxury cars and other consumption, and wantonly squandered the misappropriated funds, which subjectively had the purpose of illegal possession, and Duan's behavior should be found to constitute the crime of embezzlement of duty. The first-instance judgment found that Duan was given a lighter sentence for the crime of misappropriating funds, and there was indeed an error in the application of law. Second, Xue, as a senior financial practitioner, knew that the treasury managed by Duan was short of funds, and still received Duan's false fund transfer to help Duan evade unit inspection. When the funds lent to Duan could not be returned in time, the two discussed and used the unit's funds to return the private loan through false deposits and false fund transfers, resulting in the loss of the unit's funds. The two subjectively used the intention of the unit's funds to return personal loans, and objectively worked together to complete the criminal act of embezzlement of duty, and Xue's behavior also constituted the crime of embezzlement of duty, and the court of first instance found that Xue was not guilty and indeed wrong.
(2) Linkage up and down to continue to exert efforts to correct erroneous judgments. After review, the Qingyang Municipal Procuratorate found that the first-instance judgment was indeed wrong, and the grounds for the protest were established, and decided to support the protest. In order to ensure that the reasons for the protest were adopted by the court of second instance, in view of the focus of the dispute in the legal inspection of the first instance, the procurator handling the case went to the financial regulatory department for several discussions and communications, further understood the internal business processes and operation modes of the financial institution related to the case, supplemented and extracted the relevant business management regulations and process guidelines within the financial institution, and improved the reasons for the protest by amending and improving the reasons for the protest by supporting the protest opinion, ensuring that the point of the protest was accurate, and the reasons for the protest were more comprehensively and fully explained, and the protest was finally adopted by the court.
(3) Fully and actively perform their duties in accordance with law, and strengthen the governance of litigation sources. In response to the regulatory loopholes found in financial institutions in the handling of cases, the procuratorial organs took the initiative to extend their supervisory functions and promote social governance with procuratorial suggestions. Formulate and issue procuratorial recommendations to the unit that initiated the case in accordance with the law, urge the improvement of various rules and regulations for financial supervision, strengthen internal supervision and restraint, and prevent relevant violations and crimes. At the same time, procuratorial recommendations are formulated and issued to relevant administrative supervision departments, urging them to strengthen supervision and systematically prevent risks. The Municipal Banking and Insurance Regulatory Bureau specially organized business training for practitioners in the financial system, and formed a publicity group with banking associations to publicize and educate 21 banking units and more than 380 business outlets in the city, effectively improving the integrity and compliance operation ability of the banking industry.
Procuratorial organs serve procuratorial recommendations in a centralized manner.
【Typical significance】
(1) Comprehensively and accurately perform legal supervision functions, and punish corruption crimes within enterprises in accordance with law. In this case, the procuratorial organ comprehensively considered a series of objective acts of the defendant, accurately determined his subjective intention, accurately defined the embezzlement and embezzlement of funds by duty, and accurately defined the crime and non-crime, this crime and the other crime by comprehensively sorting out the evidence in the case, and performed its legal supervision function with high quality and efficiency, effectively safeguarding the uniform and correct implementation of the law.
(2) Gather joint efforts in criminal protest efforts to ensure the quality and effectiveness of legal supervision. For criminal protest cases, procuratorial organs at higher and lower levels strengthen coordination, precise efforts, and joint supervision. The higher courts not only strengthen professional guidance on key issues of a general nature in the work of confrontation and issues in which the application of law is controversial, but also analyze and study the issue of individual protests, and ensure the quality and efficiency of the protest work by improving the protest opinions and issuing protest opinions in court where the reasons for the protest of the lower court are not comprehensive and accurate.
(3) Persist in attaching equal importance to crime and governance, and actively carry out litigation source governance. In view of the internal management problems of financial institutions found in the handling of cases, supervise the financial institutions involved in the case and their regulatory functional departments to actively rectify through the formulation and issuance of procuratorial recommendations, and promote the comprehensive rectification of all financial institutions in the jurisdiction in a point-to-point manner, so as to effectively prevent and resolve financial risks.
Case Three
The case of Company A and Yao of Qitai County, Xinjiang Uygur Autonomous Region illegally manufacturing and selling illegally manufactured registered trademark marks
【Keywords】
Intellectual Property Prosecution Integration Flight Regulation Prosecution Advice
【Abstract】
In handling cases involving enterprises infringing intellectual property rights, procuratorial organs give full play to the leading role of the whole process of procuratorial work, actively carry out enterprise compliance inspections, and expand the path of service to ensure the healthy development of the private economy. Work closely with third-party supervision and evaluation organizations to provide "customized" legal services for private enterprises. By giving full play to the role of corporate compliance "combined fist", we will promote compliance and law-abiding operation of enterprises, prevent and reduce corporate re-offending, and ensure the sustainable, healthy and stable development of enterprises.
【Basic facts of the case】
Xinjiang Uygur Autonomous Region Qitai County A Co., Ltd. (hereinafter referred to as "Company A") is a high-quality private enterprise that attracts investment and settles in the local area, with an annual production capacity of about 100 million plastic woven bags, and the various packaging bags manufactured are sold throughout Xinjiang and exported to Central Asian countries.
In 2021, without the permission of the trademark owner H Salt Industry Co., Ltd. (hereinafter referred to as "H Company"), Company A and Yao Moumou printed more than 31,000 outer packaging bags of a certain animal husbandry salt logo, with a sales amount of more than 19,000 yuan. In February 2022, the investigating authorities transferred Yao Moumou for examination and prosecution on suspicion of illegally manufacturing and selling illegally manufactured registered trademark marks. In March of the same year, the case was reported to the jurisdiction of the Changji Prefecture Procuratorate, and in April of the same year, the procuratorate prosecuted Company A. In December of the same year, the procuratorial organ reviewed and found that the circumstances of the crime of Company A and Yao Moumou were minor, and they had legally mitigated and lenient circumstances of turning themselves in, admitting guilt and accepting punishment, conscientiously performing compliance rectification and achieving practical results, making a relative decision not to prosecute Company A and Yao in accordance with the law, and at the same time submitting procuratorial opinions on administrative punishment to the market supervision department, further promoting the seamless connection between criminal justice and administrative law enforcement. Company A has paid the administrative penalty fine in full.
【Corporate Compliance Rectification and Effect】
(1) Two-level linkage + three-procuratorial collaboration to build a "procuratorial integration" case-handling team. The Changji Prefecture Procuratorate, together with the Qitai County Procuratorate and the Manas County Procuratorate, set up a professional intellectual property prosecutor case-handling team to initiate integrated case-handling procedures and assess the necessity of corporate compliance activation. Formulate review ideas based on the specific circumstances of the case, formulate compliance plans, give play to the advantages of procuratorial integration, and promote the formation of a criminal prosecution work pattern in which procuratorial organs at two levels and three places throughout the state are integrated, regionally linked, closely coordinated, and highly efficient.
(2) Supplement investigation + social investigation on their own, and orderly initiate enterprise compliance. Strengthen division of labor and coordination with public security organs, simultaneously carry out self-supplemental investigations, promptly verify situations where the facts involved in the case are unclear and evidence is insufficient to supplement investigation, and prosecute Company A suspected of unit crimes. Through on-site visits, the procuratorial organs collected materials such as the production and operation of enterprises to carry out social investigations against Company A. The investigation found that the enterprise is a small and micro enterprise, Yao Moumou's business management decision-making lacks awareness of intellectual property protection, the management mode is seriously disconnected from social needs, the operation of the enterprise stays in the "workshop-style" mode, and there are big loopholes in the system construction and daily management. Company A and Yao voluntarily admitted guilt and accepted punishment after the case was discovered, actively compensated the economic losses of the infringing enterprise and obtained understanding. Company A has a strong willingness to carry out corporate compliance, and takes the initiative to submit corporate compliance applications and commitments. On the basis of conscientiously reviewing the facts of the case, fully carrying out social investigations, and soliciting the willingness of the enterprises involved in the case to comply with the case, the procuratorial organs are to initiate compliance supervision and inspection of enterprises in accordance with procedures, comprehensively considering the development prospects, social contributions, and current status of operation and management of the enterprises.
(3) Top-down collaboration + on-site visits, "tailor-made" compliance plans, and ensure that compliance rectification is "loud". Company A is a local high-quality enterprise, and the relevant administrative law enforcement units have a high degree of attention and understanding of the enterprise. In April 2022, the Changji Prefecture Procuratorate coordinated and promoted the establishment of a third-party supervision and evaluation organization led by the Qitai County Federation of Industry and Commerce to guide enterprises to tailor 10 systems such as intellectual property compliance management and decision-making governance. In June of the same year, during the mid-term inspection of Company A, it was found that the initial rectification effect of the enterprise was not obvious, and the procuratorate proposed an extension, which was adopted by the third-party organization and made a decision on the extension. At the same time, the procuratorate and third-party organizations discuss and analyze the problems existing in the rectification and reform of enterprises, provide face-to-face and point-to-point guidance, explain the law and reason, and help enterprises clarify misunderstandings and untie their hearts. Through the later rectification, the company's compliance management system and compliance system were gradually improved, realizing the transformation from "workshop-style" operation to modern operation mode, and successfully passed the compliance acceptance of third-party organizations.
(4) Flight supervision + public hearing, scientific and accurate assessment of enterprise compliance rectification. The Changji Prefecture Procuratorate invited four members of the management committee who are familiar with enterprise operation and laws, deputies to the people's congress and members of the Chinese People's Political Consultative Conference to form a supervision group to conduct on-site discussions and spot checks on Company A, and jointly supervise the rectification of the company's compliance plan and the performance of duties by the third-party supervision and evaluation team. Through supervision, strengthen the implementation of compliance plans and the review of third-party compliance inspection reports to prevent "false compliance" and "paper compliance". After the third-party organization puts forward an assessment opinion on the implementation of compliance obligations, the procuratorate puts forward an opinion on not to prosecute and convenes a hearing, Company A sincerely admits guilt and repents and states its compliance rectification, the case handling team clarifies the review, and at the same time the person in charge of Company H is connected by video to fully listen to the opinions of the infringed enterprise. After deliberation, the parties participating in the hearing unanimously agreed not to sue Company A and Yao Moumou. In December 2022, the Changji Prefecture Procuratorate made a decision not to prosecute Company A and Yao in accordance with the law.
(5) Procuratorial suggestions + procuratorial opinions, and the procuratorial "double book" strives to promote the long-term role of enterprise compliance on enterprise operation. In view of the problems existing in the protection of intellectual property rights of Company A, special inspection proposals are formulated and issued, in-depth analysis of enterprise management loopholes, suggestions for solving problems, and countermeasures for rectification and implementation are provided to further enhance the awareness of enterprise intellectual property protection. Strengthen the two-way connection between administrative law enforcement and criminal justice, and after making a decision not to prosecute Company A, submit a procuratorial opinion on administrative punishment against Company A to the market supervision department in accordance with law. After rectification, Company A's system construction and production and operation have achieved remarkable results, from August 2022 to August 2023, Company A's operation and management have been further standardized, and 1 million yuan has been invested to update the workshop fire protection facilities, and the quality system certification, production license review, safety production three-level management compliance review and environmental protection standard acceptance have been completed; 86 jobs were provided, an increase of 30 over the same period of the previous period; The output value reached 28.82 million yuan, an increase of 4.4 million yuan over the same period of the previous period; Sales revenue reached more than 24 million yuan, an increase of 2.2 million yuan over the same period of the previous period; Pay 380,000 yuan in taxes.
【Typical significance】
(1) Relying on case handling, expand the path of service to ensure the healthy development of the private economy. In view of the lack of local experts and talents in the field of intellectual property, the procuratorate pays attention to the current situation of the lack of local experts and talents in the field of intellectual property rights, and follows up and guides the whole process of enterprise compliance inspection, and borrows wisdom from third-party organizations and experts and scholars. At the same time, fully respect the professional opinions of third-party supervision and assessment, carefully listen to the opinions of the infringed enterprises, and continuously deepen the compliance review path of enterprises led by the procuratorial organs throughout the process.
(2) Multi-party collaboration to provide "customized" legal services for private enterprises. When handling enterprise-related crime cases, procuratorial organs make pre-compliance preparations by actively reviewing whether they meet the applicable conditions for enterprise compliance. In the process of building a compliance system, give full play to the role of third-party organizations, guide the enterprises involved in the case to optimize compliance plans in terms of compliance system construction, compliance operation system, and compliance culture cultivation, and implement them step by step. The procuratorial organs, in conjunction with relevant departments, shall investigate, inspect and evaluate the compliance plans and implementation of the enterprises involved in the case, and urge the enterprises involved in the case to "sell their numbers" one by one to ensure that rectification and reform are in place.
(3) Treat both the symptoms and the root causes, and realize the organic unity of the "three effects" of serving the private economy in handling cases. In view of the actual situation in handling the case, the procuratorial organ formulated and issued procuratorial suggestions to the enterprises involved in the case to enhance the enterprise's awareness of intellectual property rights, found that the "problems" were reasonable, well-founded and measured, put forward "suggestions" that were practical, effective and feasible, and actively promoted the formation of a judicial environment and social atmosphere that protects intellectual property rights in accordance with the law and guarantees innovation-driven development in services. Further strengthen the connection between the "two laws", formulate and issue procuratorial opinions, and simultaneously transfer compliance plans, expert opinions, rectification reports, etc. of enterprises involved in the case, and recommend that administrative organs strengthen daily supervision of enterprises involved in the case and similar enterprises in conjunction with the compliance investigation of enterprises while imposing penalties, and promote mutual recognition of compliance rectification and punishment.
Case Four
A case of 29 people, including Lu Moumou and Jiang Moumou in Ningbo City, Zhejiang Province, who bribed non-state functionaries and accepted bribes from non-state functionaries
【Keywords】
Digital empowerment Corruption within private enterprises, comprehensive performance of duties, and industry governance
【Abstract】
With the reform of the motor vehicle inspection system, the vehicle inspection station has implemented socialized and market-oriented operation, and individual private vehicle inspection companies have exposed internal corruption problems, and "paying money for inspection" has gradually developed into an unspoken rule in the field of vehicle inspection. Procuratorial organs use big data thinking to accurately discover clues of integrated criminal and administrative supervision, perform supervision duties in accordance with the law, and achieve a full-chain crackdown. Actively extend the supervision tentacles, promote the construction of clean and honest enterprises, promote the standardized development of the vehicle testing industry, and continue to optimize the business environment based on the rule of law.
【Basic facts of the case】
Between 2016 and 2021, 15 people, including "scalper" Lu Moumou (a repeat offender), who were engaged in the annual inspection agency business of motor vehicles, paid a benefit fee ranging from 50 yuan to 200 yuan per vehicle to the inspectors of a certain A testing station and a B testing station of Ningbo A vehicle testing company and Ningbo B vehicle testing company, and bribed the amount of 60,000 yuan to 800,000 yuan. Jiang Moumou, a staff member of the above three testing institutions, and 14 other people, took advantage of their respective positions in charge of the inspection of motor vehicle appearance, environmental protection, security inspection and other items, and used methods such as reducing the passing standards for manual judgment of appearance items, helping to repair or cover up defects, and controlling the accelerator or brake force, etc., to help Lu Moumou and others introduce motor vehicles that handled the annual inspection to pass the test in violation of regulations, and received benefit fees ranging from 120,000 yuan to 300,000 yuan.
From February to October 2022, the Jiangbei District Procuratorate in Ningbo City, Zhejiang Province, prosecuted 29 people in the case for bribery of non-state officials and bribery of non-state employees. In March 2022, the Jiangbei District Court sentenced Lu to eight months' imprisonment and fined him 20,000 yuan for bribing non-state workers; The remaining 28 were sentenced to imprisonment ranging from four months to one year and five months' imprisonment, and fined accordingly, and all of them were suspended in accordance with the law. All of these judgments have entered into force.
【Procuratorial Authority's Performance of Duties】
(1) In-depth investigation of corruption in the vehicle inspection industry, find out the causes, and accurately supervise. In handling the commercial bribery nest case in the vehicle testing industry, the Jiangbei District Procuratorate found that the series of cases took a long time, and the inspectors involved in the case covered all vehicle testing institutions and various motor vehicle inspection and testing stations in the jurisdiction, reflecting that the corruption of the inspectors was not accidental. The case-handling department took the initiative to carry out investigation and verification work, visited the administrative departments in charge of public security, market supervision, ecological environment, road transportation, etc., went to the vehicle inspection agency to investigate, inspected the testing process on the spot, grasped the surrounding situation of the testing station, and learned that in recent years, the corruption of personnel within the testing station has become more and more prominent, and even developed into an "unspoken rule" in the field of vehicle inspection. Acts such as fraud, power and money trading, and indulging unqualified vehicles on the road in the vehicle inspection process not only bring major hidden dangers to road traffic safety, but also directly threaten the safety of people's lives and property. Through the comprehensive analysis and judgment of relevant data such as communication and capital transactions of the personnel in the case, it is believed that it is necessary to use digital investigation methods to find out the "hidden rules" of the vehicle detection industry in the jurisdiction and achieve accurate supervision.
Procuratorial case-handling personnel visit testing stations.
(2) Construct a digital supervision model, linking executions and cohesive governance. The Jiangbei District Procuratorate collects all staff information from the testing station, collects the information of the agent on the vehicle inspection agency platform from the public security organ, and cooperates with the public security organ to collect the WeChat transaction bills of the persons in the case, based on the WeChat bills of the agents in the case and the testing personnel, and screens out the persons with high-frequency economic exchanges with the criminal suspects in the case through data comparison and data collision. Strengthen supervision of similar cases, improve the quality and efficiency of case handling, and supervise the filing of criminal cases for 18 newly discovered persons suspected of committing crimes. Strengthen the comprehensive performance of duties, transfer leads of vehicle salespeople suspected of bribery but with minor circumstances to the administrative procuratorial departments, and the administrative procuratorial departments will issue procuratorial recommendations to the market supervision departments to urge the implementation of administrative punishments, effectively promote the linkage of executions, and form a closed loop of supervision.
(3) Promote social governance and build a solid bottom line for industry safety. After research and judgment, the "whole chain" phenomenon of vehicle owners avoiding vehicle inspection risks, acting as intermediaries bridging bribes, and testing personnel helping to cheat and accept bribes in the field of vehicle detection mainly reflects two problems: First, motor vehicle testing companies focus on the development of business, but there are omissions in operation and management, especially personnel management, prevention and control awareness and risk early warning awareness are not in place. Second, the supervision of administrative departments lacks effectiveness, resulting in the perpetuation of widespread corruption. In this regard, the Jiangbei District Procuratorate took the punishment of internal corruption in private enterprises as the starting point, dug deep into the root causes of crime, analyzed the criminal risk points of corruption in the vehicle inspection industry, formed a research and analysis report, and promoted the special governance of corruption in the field of vehicle detection in the city.
(4) Carry out governance of the sources of corruption in private enterprises and promote the healthy development of the industry. The Jiangbei District Procuratorate took the initiative to dock with the Ningbo vehicle inspection "one thing" integrated reform work class, and jointly with the administrative departments and logistics industry associations, took the lead in holding the vehicle inspection industry governance promotion meeting. In view of the serious loopholes in the internal management of private enterprises, draw on the compliance governance model of enterprises, propose rectification plans from the aspects of internal supervision mechanism, personnel management system, rule of law and integrity education, etc., and standardize the order of vehicle detection in the jurisdiction. Strengthen publicity on the rule of law, through methods such as legal policy publicity, case interpretation, and issuance of proposals, to raise the legal awareness of inspection personnel, vehicle inspection agents, and transportation practitioners.
【Typical significance】
(1) Digital empowerment, carrying out special supervision of corruption crimes in private enterprises. In the process of performing their duties, procuratorial organs do not simply handle cases, keenly discover supervision clues, rely on individual cases to explore digital supervision models with promotion value, use big data analysis to find out the high-frequency contact between inspection agency staff, vehicle inspection agency personnel, and personnel with abnormal accounts, carry out special supervision of collusion crimes inside and outside the vehicle detection industry, and solve the problem of "difficulty in filing cases".
(2) Linking executions and joint efforts to create a high-quality business environment based on the rule of law. Give full play to the advantages of "criminal prosecution + administrative prosecution" in comprehensive performance of duties, promptly transfer leads in writing to the administrative procuratorial departments, formulate and issue procuratorial recommendations to market supervision departments to urge administrative punishments, effectively promote the connection of executions, form a closed loop of supervision, and jointly promote strict law enforcement and judicial fairness.
(3) A number of linkages will help private enterprises in the vehicle inspection industry to achieve stability and long-term development. Procuratorial organs focus on doing a good job in the "second half of the article" of case handling, through on-site investigations, formulating and issuing procuratorial suggestions, holding promotion meetings, etc., to help private enterprises eliminate shortcomings, improve internal governance, guide private enterprises to independently strengthen compliance construction, strengthen internal corruption risk prevention and control capabilities, and promote administrative departments and private enterprises to build a compliance management system.
Case Five
The case of Company J and Zhang illegally absorbing deposits from the public in Shenzhen, Guangdong Province
【Keywords】
Private financial enterprises, corporate compliance, improve supervision, and industry governance
【Abstract】
By carrying out compliance reform of enterprises involved in the case, the procuratorial organs help private financial enterprises improve the management of fundraising business, and help the private enterprises and industries involved in the case regulate and develop healthily in accordance with the law. Give full play to the role of financial experts in third-party supervision and evaluation organizations, focus on solving problems such as the highly professional compliance supervision and inspection of financial enterprises and the difficulty in discovering risks involving violations and crimes, and promote extended governance from the point to the financial industry such as insurance and funds.
【Basic facts of the case】
Guangdong Shenzhen J Network Technology Co., Ltd. (hereinafter referred to as "J Company") was registered and established in July 2012, its subsidiaries are mainly engaged in fund sales, insurance sales, private securities, more than 600 employees in 2021, and the tax payment has been more than 20 million yuan for three consecutive years.
In January 2014, Company J established Shenzhen G Wealth Management Co., Ltd. (hereinafter referred to as "G Company") and held 100% of it, and Company G launched the G online loan platform (hereinafter referred to as "G Platform") in February 2015, publicly publicizing to unspecified objects in the society through the Internet without permission, promising 6%-10% annualized fixed income for fundraising participants, and finding borrowers to issue bids on G platform to engage in P2P business through loan assistance institutions. In July 2017, Company J transferred Company G to Tang Moumou et al. and indirectly accounted for 10% of the shares, and Tang Moumou et al. transferred Company G to Zhong Moumou and others in November 2018. In June 2019, the G platform exploded due to the rupture of the capital chain. After identification, the G platform raised a total of more than 2.9 billion yuan during the operation of Company J, and the full amount of the fundraising participants was paid, and a total of 1.437 billion yuan was raised after July 2017, and the amount to be paid by the fundraising participants was more than 72 million yuan. After the case was discovered, Company J refunded Tang Moumou 13.4 million yuan in equity transfer money paid by the raised funds, and Zhang took the initiative to go to the public security organ for investigation. At the same time, the co-defendant Tang Moumou returned more than 17 million yuan of the raised funds, Zhong Moumou returned 39 million yuan of the raised funds, the public security organ froze more than 2.97 million yuan of bank accounts, together with the 13.4 million yuan returned by Company J, and all the funds raised by the G platform from its establishment to the lightning explosion were fully paid.
In January 2022, the Nanshan Branch of the Shenzhen Municipal Public Security Bureau transferred Zhang Moumou, Tang Moumou (to be dealt with in a separate case), Zhong Moumou (to be dealt with in a separate case) and others to the Nanshan District Procuratorate for review and prosecution on suspicion of illegally absorbing public deposits. In April 2022, the Nanshan District Procuratorate divided the case of Zhang Moumou suspected of illegally absorbing deposits from the public, added Company J as a criminal suspect and initiated compliance procedures for the enterprises involved in the case. In November 2022, after holding a public hearing on the acceptance of enterprise compliance, the Nanshan District Procuratorate made a relative non-prosecution of Company J and Zhang in accordance with the law based on the facts of the crime, the rectification of corporate compliance, and the application of the lenient system for admitting guilt and accepting punishment.
【Procuratorial Authority's Performance of Duties】
(1) In-depth investigation and prudent initiation of compliance procedures for enterprises involved in the case. The Nanshan District Procuratorate, together with the Shenzhen Local Financial Supervision Administration and the Shenzhen Investment Fund Association, conducted an on-site investigation. After investigation, it was found that although Company J established Company G in 2015 to carry out illegal deposit absorption business, it took the initiative to transfer Platform G in July 2017 and no longer carried out illegal business; Zhang Moumou, the actual controller of Company J, admitted guilt and accepted punishment, had the circumstances of turning himself in, and actively returned compensation after the case; Company J has a national fund sales license and insurance agency license, which is relatively scarce in the industry, and the enterprise has a good momentum of development and a strong willingness to comply with rectification. After careful study, the Nanshan District Procuratorate made a decision on the compliance supervision and inspection of Company J to apply the third-party mechanism. In order to ensure the professionalism and quality of supervision and inspection, the procuratorate invited the management committee of the third-party mechanism to invite the Shenzhen Local Financial Regulatory Bureau and the Shenzhen Private Equity Association to recommend experts with financial practice experience to jointly serve as third-party professionals to conduct inspections on fund sales and private securities operation respectively.
Procuratorial personnel conduct compliance inspections at the enterprises involved in the case.
(2) Strict processes, strengthening measures to ensure compliance rectification effects. In the early stage, the procuratorate will work with third-party organizations to smooth communication channels with enterprises through on-site visits and other means, and repeatedly review and improve the compliance plan issued by the enterprise to ensure that the compliance plan is scientific and reasonable; In the medium term, through reviewing the compliance system, on-site surprise inspections, door-to-door legal delivery, etc., the corporate responsibility is compacted, and the effective implementation of the compliance plan is supervised; In the later stage, the compliance measures are supervised through random "examinations", rehearsals to simulate violations, pre-acceptance, etc., to consolidate the effect of compliance rectification and effectively avoid false rectification and "paper compliance".
The procuratorate shall hold a public hearing on the enterprise's compliance inspection and acceptance.
(3) Prescribe the right medicine and accurately remove the "foci" involved in crimes of private financial enterprises. After review, the procuratorate held that although Company J had spun off the P2P business from its main business, the private placement business operated by the company still had the same risk of illegally raising funds, and it was necessary to focus on compliance supervision and inspection to effectively prevent reoffending. Later, together with third-party professionals and industry experts, we conducted key inspections on fund sales business and private securities business, provided targeted guidance to enterprises to establish a compliance operation system for fund raising business, required enterprises to establish a compliance mechanism for enterprise fund sales, and carried out risk investigation and special rectification of private fund business. At the same time, by introducing industry associations to participate in compliance inspections, enterprise compliance and industry management are connected in an orderly manner, providing a demonstration for industry associations to strengthen daily compliance construction and management.
【Typical significance】
(1) Attach equal importance to rectification and prevention, and effectively promote the healthy and sustainable development of private enterprises involved in the case. By initiating the compliance reform of the enterprises involved in the case, and carrying out targeted compliance rectification around the areas involved in crimes and potential risks, Company J achieved benign and orderly development, further enhanced its legal awareness and risk prevention awareness, and further improved its business capabilities. The company's operating income in the fourth quarter of 2022 increased by 13% compared with the third quarter, and it was awarded the "2022 Fintech Company Award" in December 2022 and shortlisted in the "2022 Fintech Double 50 List" in January 2023.
(2) Cases extend to the industry to help optimize the industry ecology of private financial enterprises. Through regular return visits, the procuratorate analyzes and judges the compliance system and the embedding of compliance policies in daily operations, assists enterprises in smooth system operation, and ensures continuous compliance results. At the hearing, representatives of financial industry associations and more than 10 financial enterprises were specially invited to observe the public hearing, learn about the construction of the compliance system and the prevention and disposal of private equity risks displayed by Company J, deeply learn the lessons of the case, clarify the "traffic light" for the standardized operation of private enterprises in the financial field, and continue to optimize the regional financial industry ecology.
(3) Balance vitality and order, and explore effective ways for private enterprises in the financial sector to comply with them. In recent years, private financial enterprises have been suspected of securities and futures crimes and private placement crimes, which have seriously disrupted the order of financial management and infringed upon the legitimate rights and interests of the people. From the perspective of case-handling practice, private enterprises in the financial sector generally have a weak awareness of compliance operation, and are prone to fall into the dilemma of "barbaric growth", and urgently need to be guided and improved in terms of governance structure and management system. The supervision and inspection modes adopted in this case, such as supervising and investigating the risks involved in crime, consulting professionals, and deeply integrating compliance and business, have made useful explorations for ensuring the high-quality development of the private economy with the power of the rule of law.
Case Six
The case of environmental pollution by three people, including Company A and Qiu Moumou in Suzhou City, Jiangsu Province
【Keywords】
Environmental pollution, equal protection, compliance of the enterprises involved, compensation for ecological and environmental damages
【Abstract】
When handling environmental pollution cases, procuratorial organs give full play to their procuratorial functions, equally protect all types of market entities, actively carry out compliance rectification of enterprises involved in the case, improve the quality and efficiency of compliance rectification through third-party supervision and assessment, joint acceptance, compliance hearings, etc., and help enterprises operate in accordance with the law. Where the case harms the public interest, the procuratorial organ strengthens the integration of criminal prosecution and public interest litigation prosecution to perform its duties, takes ecological and environmental damage compensation as the content of enterprise compliance investigation, and at the same time explores multiple restoration paths such as economic compensation, upgrading and transformation of environmental protection facilities of the enterprise involved in the case, and alternative restoration, so as to improve the effect of pollution control and actively integrate into the national dual carbon strategy.
【Basic facts of the case】
From February to December 2020, Jiangsu Suzhou A Industry Co., Ltd. (hereinafter referred to as "Company A") started construction of production increase projects without administrative approval, resulting in a significant increase in the amount of hazardous waste such as waste cutting fluid and waste cutting oil. Company A violated the regulations by failing to issue a hazardous waste transfer slip, and successively handed over 14 tons of waste mineral oil and other hazardous wastes to Shi (dealt with in a separate case) who did not have treatment qualifications, and then Shi processed the above-mentioned waste mineral oil into mold release oil after simple precipitation and filtration, and provided it to the construction site for use, causing environmental pollution, and Qiu and other three people, as the directly responsible supervisors or directly responsible personnel of Company A, connived at or provided help.
【Procuratorial Authority's Performance of Duties】
(1) Equally protect the enterprises involved in the case, and initiate compliance rectification in accordance with law. In January 2022, the Suzhou High-tech District Bureau of the Suzhou Municipal Public Security Bureau transferred to the Suzhou Huqiu District Procuratorate for review and prosecution on suspicion of environmental pollution by Company A and Qiu Moumou. Company A has a strong willingness to comply with rectification, submitting the "Compliance Application" and supporting materials such as enterprise operation, and the Huqiu District Procuratorate has investigated the operation, tax payment, accommodation and employment of the enterprise through on-site visits and other investigations, and found that Company A is a high-tech enterprise invested by a Hong Kong listed company, with an average annual tax payment of more than 10 million yuan and more than 1,400 employees, which has a certain influence in the industry. After listening to the opinions of relevant units such as environmental protection and territorial governments, the procuratorate made a compliance inspection decision. Subsequently, Company A hired lawyers and environmental stewards to conduct a preliminary assessment of compliance construction, comprehensively check the compliance risks of the enterprise, and formulate a compliance plan covering environmental protection and production safety. In April 2022, the Huqiu District Procuratorate established a third-party supervision and evaluation organization, focusing on environmental protection and production safety assessment. Company A established a special compliance leading group, hired external experts to assist in compliance rectification, and established an environmental safety compliance management system. During the compliance inspection, the implementation of the compliance plan is regularly reported in writing to the procuratorate and third-party organizations, and more than 1,000 pages of compliance rectification materials have been supplemented and improved, and 10 specific management systems such as the "Hazardous Waste Pollution Prevention and Control Responsibility System" have been established.
(2) Strengthen the comprehensive performance of duties, and carry out pre-litigation rectification in civil public interest litigation. In order to promote the source management of the ecological environment, the procuratorate adheres to the concept of restorative justice, embeds corporate compliance into public interest litigation handling, and takes ecological environmental damage compensation as the content of enterprise compliance inspection. In view of the fact of environmental pollution damage, the procuratorate, together with the ecological and environmental department, conducted consultations with the enterprises involved in the case, and clarified that the specific ways for the enterprises involved in the case to perform their responsibilities for ecological and environmental damage are: First, carry out a river reservoir water treatment project with a total amount of 296,600 yuan in the Suzhou Ecological Resources Public Welfare Restoration Base as an alternative restoration of ecological environmental damage. The second is to carry out a project to upgrade pollution control facilities with a total amount of 1 million yuan in the factory area to improve the effect of pollutant control.
(3) Joint acceptance + compliance hearing to ensure that enterprises are truly compliant and rectified. After six months of compliance inspection, the procuratorate and third-party organizations carried out comprehensive assessments through sampling questionnaires, on-site inspections, etc., and found that Company A had carried out compliance rectification as required, established a relatively complete compliance management mechanism and risk identification mechanism, and fulfilled the liability for ecological and environmental damages. In October 2022, the procuratorate invited representatives from various walks of life, including people's congress deputies, people's supervisors, ecological and environmental departments, the Federation of Industry and Commerce, and environmental protection volunteers, to hold public hearings. At the hearing, the enterprises involved in the case reported in detail on the compliance rectification and construction, and displayed the comparison before and after compliance and the compliance results on the spot. After deliberation, the hearing officers unanimously recognized that the enterprise involved in the case had completed corporate compliance rectification, and recommended that the procuratorate make a relative decision not to prosecute the enterprise and personnel involved in the case. In October 2022, the procuratorate made a decision not to prosecute Company A, Qiu and three others in accordance with the law. Through continuous follow-up visits, the procuratorate learned that the parent company of the enterprise involved in the case has increased its capital by 10 million US dollars, and the current development momentum of the enterprise is good. From January to September 2023, the company applied for 12 invention patents, achieving an output value of 350 million yuan, an increase of about 15% over the same period last year.
The procuratorate held a hearing to assess the compliance effect of the enterprise involved.
【Typical significance】
(1) Equally protect all types of market entities, deepen compliance with enterprises involved in the case, and create an excellent business environment based on the rule of law. When handling cases involving enterprises, the procuratorial organs should establish the concept of equal protection of all types of market entities, comprehensively review the compliance intentions, development prospects, and social contributions of the enterprises involved in the case, confirm the necessity and feasibility of carrying out enterprise compliance, and help enterprises plug loopholes, operate in accordance with laws and regulations, and create a business environment based on the rule of law through enterprise compliance rectification. Improve the quality and efficiency of corporate compliance rectification through organizing forums and other consultations, third-party supervision and assessment, joint acceptance, public hearings, etc.
(2) Persist in attaching equal importance to the management of crimes, and implement liability for ecological and environmental damages. In handling cases that harm the public interest, such as environmental pollution, procuratorial organs should focus on the dual goals of serving the business environment and promoting the governance of litigation sources, strengthen the integration of criminal prosecution and public interest litigation prosecution, take compensation for ecological and environmental damage as an important part of enterprise compliance rectification, and effectively implement the principle of "responsibility for damage and comprehensive compensation" for environmental infringement through compliance construction.
(3) Innovate and use diversified mechanisms to implement the national dual carbon strategy. In view of the compensation for ecological and environmental damage in environmental pollution cases, alternative restoration methods such as economic compensation and upgrading of environmental protection facilities of the enterprises involved in the case are diversified to further reduce pollutant emissions through pollution reduction and carbon reduction measures, improve the level of clean production and green development of enterprises, and actively integrate into the national dual carbon strategy.
Case Seven
Company Z of Anyang City, Henan Province applied for case filing and supervision
【Keywords】
Private enterprises supervise the withdrawal of cases, perform their duties in an integrated manner, and manage the source of litigation
【Abstract】
Procuratorial organs handling cases involving private enterprises shall conduct a comprehensive review, accurately distinguish between administrative violations and criminal offenses, and promptly supervise the public security organs to make a decision to withdraw cases where they should not be filed. It is necessary to do a good job in the "second half of the article" of judicial case handling, be able to perform their duties in accordance with the law, expand the quality and efficiency of supervision and case handling, and put forward opinions and suggestions on promoting administration according to law and serving enterprises through "government-inspection linkage" and other channels, so as to help optimize the environment for the development of the private economy.
【Basic facts of the case】
In July 2015, Wang Mouzhong, the person in charge of Company Z (hereinafter referred to as "Company Z") in Anyang City, Henan Province, signed an agreement with a village committee and some villagers in Beiguan District, Anyang City, to lease 17.749 mu of general arable land in the village for the construction of a logistics park, and to build simple houses and hardened roads without applying for approval procedures for the conversion of agricultural land. In May 2021, Company Z paid more than 3.7 million yuan to the Beiguan District Natural Resources Bureau of Anyang City (hereinafter referred to as the "District Natural Resources Bureau") for the change of land nature. In September of the same year, the District Natural Resources Bureau opened an investigation into Wang Mouzhong's unauthorized illegal occupation of land, and the appraisal conclusion showed that 7.056 mu was serious damage and 4.114 mu was general damage. In December of the same year, the district natural resources bureau transferred Wang's suspected illegal occupation of agricultural land to the public security organs. The public security machine opened a case for investigation in January 2022. In January 2023, Company Z applied to the Beiguan District Procuratorate of Anyang City to supervise the public security organ to withdraw the case.
【Procuratorial Authority's Performance of Duties】
(1) Comprehensive review and multi-party linkage. After the public security organ filed the case, Company Z's operation was blocked, and many parties reported that they were unsuccessful. After the procuratorate accepted the case, the prosecution department collected the investigation file of the public security organ on the same day, and the joint arrest and prosecution department focused on verifying the key evidence "land damage degree appraisal report" around the company's appeal, and found that the report used the identification report issued by the appraisal technical unit, rather than the determination conclusion issued by the Anyang Municipal Bureau of Natural Resources and Planning, which violated the regulations and was defective in form. The procuratorial organs organized the public security organs and natural resources departments to convene a tripartite meeting to analyze and discuss issues such as the nature of the land involved in the case and the standards for filing a criminal case, and further clarified that the nature of the land involved in the case was ordinary cultivated land, causing serious damage to 7.056 mu of planting conditions and 4.114 mu of general damage, and did not meet the criminal filing standards for serious damage to planting conditions of more than 10 mu of ordinary cultivated land. The procuratorate held that the public security organ should not have filed the case but filed the case, and issued a "Notice of Request for Explanation of the Reasons for Case Filing" to him in accordance with the law.
(2) Public hearings and overseeing the withdrawal of cases. The procuratorate invited enterprise representatives, lawyers and other personnel to hold hearings around the focus of the dispute over whether the company's illegal occupation of land constituted a crime. The hearing officer deliberated that the company's occupation of land was an administrative violation and did not constitute a crime. Combined with the hearing opinions, the procuratorial organs supervise the public security organs to make decisions to withdraw the case, reduce the impact of the case filing and investigation on the company's production and operation, and protect the legitimate rights and interests of private enterprises in accordance with the law. At present, the company is doing well, achieving a profit increase of 30% that year.
The procuratorate holds hearings.
(3) Thematic research and source governance. Combined with the situation that private enterprises illegally occupied land based on development needs during the handling of this case, organize special personnel to carry out "dissecting sparrows"-style investigation and research, rely on the "government-inspection linkage" mechanism, report the investigation and research to the district party committee and the standing committee of the district people's congress, and propose a comprehensive investigation of the current situation of land occupied by private enterprises suspected of violating laws and regulations, standardize the procedures for the conversion of agricultural land, strengthen the legal awareness of business entities, and other issues, and promote the centralized rectification activities of illegal land occupation in the whole region. As of the first half of 2023, relevant units have demolished more than 40 illegal buildings.
【Typical significance】
(1) Perform procuratorial duties with high quality and efficiency, and help create a business environment based on the rule of law. In the course of handling cases involving private enterprises, procuratorial organs should give full play to the role of investigative supervision and coordination and cooperation mechanisms, unblock channels for the sources of supervision leads, and persist in performing their duties as a whole, pay attention to follow-up and efficiency, and submit supervision opinions in accordance with law where supervision and correction are necessary. Where it is discovered that a case should not be filed but filed, promptly supervise the public security organs to withdraw the case, help the enterprise return to the right track of operation, and ensure that the enterprise can stay and operate well.
(2) Promote the governance of litigation sources, increasing the effectiveness of procuratorial case-handling oversight. Procuratorial organs shall, through investigation and research, find out the causes and study countermeasures, actively report to the party committee and people's congress, and notify the competent administrative departments, and use methods such as "government-procuratorial linkage" and procuratorial suggestions to promote the competent administrative departments' ability to perform their duties in accordance with the law and standardize law enforcement, prevent and correct the transfer of administrative violations to judicial organs as criminal cases, and adversely affect the normal operation of enterprises.
Case Eight
A Real Estate Co., Ltd. and others applied for supervision of a private loan dispute with He and Kong
【Keywords】
Private Enterprises Property Preservation Excessive Seizure Supervision of Violations of Trial Procedures
【Abstract】
Property preservation is limited to the scope of the request, or property relevant to the case. The preservation that obviously exceeded the scope of the request limited the respondent's right to dispose of its lawful property and infringed on the respondent's legitimate rights and interests. Through supervising illegal preservation acts that exceed standards in litigation, procuratorial organs urge courts to standardize the application of property preservation measures, protect the lawful rights and interests of private enterprises in accordance with the law, and promote the development of the private economy.
【Basic facts of the case】
In June 2021, He and Kong told seven people, including the private enterprise A Real Estate Co., Ltd. (hereinafter referred to as "Company A"), to the Tongxu County Court in Henan Province due to a private lending dispute, requesting that the seven defendants be ordered to repay the principal of 19.6 million yuan plus interest. During the litigation, He applied to the court for the preservation of the property or bank deposits worth 21.3 million yuan of the seven defendants and provided corresponding guarantees. The court found that He's application complied with the law, and in December 2021, it made a property preservation ruling and seized two state-owned land use rights (an area of 73,131 square meters) and 387 properties (an area of 36,713 square meters) under the name of Company A.
In March 2022, Company A applied to the Tongxu County Court for reconsideration on the grounds that the property seized by preservation clearly exceeded the subject matter of the lawsuit, and the court rejected Company A's request for reconsideration on the grounds that the market value of the real estate in Company A's name could not be determined and the evidence provided could not prove its claim. Company A was unable to go through the registration procedures due to the seizure of the real estate, which affected the sales and circulation, and due to the seizure of the land use right, the project under construction was stagnated, the construction enterprises that had settled in were forced to leave, the company's capital was cut off, and the operation was in trouble.
【Procuratorial Authority's Performance of Duties】
Admissibility. In May 2022, Company A applied to the Tongxu County Procuratorate for supervision on the grounds that the amount of property seized by preservation clearly exceeded the subject matter of the lawsuit, and the court accepted and reviewed.
Procuratorial personnel fully discuss the evidence in the entire case.
Review the situation. Procuratorial organs conduct investigation and verification of case leads in accordance with law. The first is to inquire in detail about the case of applicant Company A and grasp the details of the seized real estate. The second is to go to the court to check the trial and preservation case files, and collect relevant legal documents, price assessment reports and other documentary evidence. The third is to go to Weihai to conduct on-site investigation of the seized real estate and the operation of Company A. On the basis of investigation and verification, and with reference to the real estate contract involved in the procurement case of the Weihai Rushan government department, the sales contract of the commercial housing involved in the case, the pre-sale price list and the online inquiry report of the real estate involved in the case filed with the housing and construction department, the procuratorate found that the value of the real estate actually seized by the court in this case was about 139 million yuan, not including the two state-owned land use rights, and the total amount of claims claimed by He and Kong was 19.6 million yuan, and the subject amount of the application for preservation was 21.3 million yuan.
Procuratorial personnel conduct on-site investigations to verify the seized real estate.
Oversight opinions. The procuratorial organ comprehensively considered various factors such as the main claim, interest, and the appraised value and divisibility of the seized property, and held that the value of the property seized by the court obviously exceeded the amount of the claim claimed by the parties, which violated the law. In May 2022, the Tongxu County Procuratorate issued a procuratorial recommendation to the Tongxu County Court, recommending that the excessive seizure be corrected.
Monitor the results. After receiving the procuratorial proposal, the Tongxu County Court found that the case was indeed an excessive seizure, and ruled in June 2022 to lift the 114 properties that had been seized earlier, and then in August 2022 to lift the seized land. After the land was unsealed, the construction project progressed smoothly.
【Typical significance】
In property dispute cases, seizure measures play an important role in protecting the rights of applicants. If there is a seizure that obviously exceeds the standard, it will lead to a serious imbalance in the rights of the parties, damage the legitimate rights and interests of the respondent, and may even cause a major adverse impact on the enterprise that was originally operating normally. When examining whether there has been a clearly excessive seizure in property preservation and enforcement activities involving private enterprises, the procuratorial organs shall, in accordance with the principle of basic balance between ends and means, review the scope of preservation and the value of the subject matter in accordance with law; If the seized property is real estate, the estimated value may be referred to the housing record price, the contract for the sale and purchase of commercial housing, the valuation report of the intermediary, etc. For illegal acts that clearly exceed the standard, the procuratorial organs should correct them by putting forward procuratorial suggestions, protect the legitimate rights and interests of private enterprises, and create a business environment based on the rule of law.
Case IX
A labor service company and B Construction Group and B Construction Group Shandong Branch construction project labor contract dispute dispute
【Keywords】
Labor service contracting, quality acceptance evaluation, protest, private economy
【Abstract】
Project quality evaluation and project completion acceptance are not the same procedure, but are the determination of project quality by different acceptance entities based on different purposes. When handling relevant cases, procuratorial organs shall, on the basis of a comprehensive understanding of professional issues in the field of construction projects, accurately apply the law, achieve accurate supervision, protect the lawful rights and interests of enterprises in accordance with law, and escort the development of the private economy.
【Basic facts of the case】
In September 2010, the Shandong branch of B Construction Group contracted a project project in Zaozhuang City, Shandong Province to private enterprise A labor service company in the form of labor subcontracting, and the two parties signed two labor service contracts, stipulating that the project must meet the quality standard of "high quality of the subject"; If it is not met, the comprehensive unit price will be reduced by 115 yuan per square meter to calculate the project amount. At the same time, it is agreed that if the completion acceptance of the project does not meet the "good standard", a fine of 10 yuan per square meter of the construction area of the project will be imposed. After the completion of the project, the audit determined that the total construction area of the project involved in the case was 99,791.09 square meters, and the acceptance conclusion was "qualified, not up to quality".
In May 2013, B Construction Group Company and Shandong Branch of B Construction Group Company (hereinafter referred to as "B Construction Company") filed three lawsuits based on the project disputes involved in the case, respectively demanding that A labor service company return more than 2.95 million yuan of overpaid project money, pay more than 1.79 million yuan of contract liquidated damages, and return advance payments. A labor service company filed a counterclaim in the case of returning the project money, demanding that B construction company pay more than 13.61 million yuan in arrears of project money. For the case of returning the project money and paying liquidated damages, the Shizhong District Court of Zaozhuang City, Shandong Province made civil judgments respectively, finding that the project built by A Labor Service Company did not meet the "high quality of the subject" and "excellent standards" stipulated in the contract based on the acceptance conclusion of "qualified and not of high quality", and ordered A Labor Service Company to return more than 2.77 million yuan of project money and pay more than 1.29 million yuan of liquidated damages. After A Labor Service Company appealed separately against the first-instance judgment, the second-instance judgment of the Zaozhuang Intermediate Court rejected the appeal and upheld the original judgment. Dissatisfied with the second-instance judgments of the two cases, A Labor Service Company applied to the Shandong Provincial Higher Court for a retrial, which was dismissed.
【Procuratorial Authority's Performance of Duties】
Case acceptance. Dissatisfied with the judgment of the second instance, Labor Service Company applied to the Zaozhuang Municipal Procuratorate in Shandong Province for supervision in April 2016 and January 2021 respectively on the case of returning project money and paying liquidated damages, and the court accepted and reviewed.
Review process. Procuratorial organs carry out investigation and verification work through reviewing files, visiting industry regulatory departments, and so forth, focusing on conducting in-depth and meticulous reviews of the specific content and evaluation standards of "high subject quality" and "good standards" agreed in the contract. After understanding with the administrative department of construction engineering, it was confirmed that the completion acceptance is a mandatory requirement that construction enterprises must meet; In addition to national standards, there are also industry standards formulated by the construction industry association, etc., and the construction industry association has set up high-quality structure awards to encourage construction and construction units to further improve the quality of projects. The former is a legal obligation, while the latter is a contractual obligation.
Procuratorial personnel went to the engineering construction supervision department to find out whether the construction company involved in the case had declared "excellent engineering" materials.
As the national standard for completion acceptance, the "Unified Standard for Construction Quality Acceptance of Construction Engineering" only stipulates two evaluation standards of "qualified" and "unqualified" in the project acceptance conclusion, and there is no acceptance conclusion of "high quality". In order to unify the basic indicators and methods of construction quality evaluation of construction projects and encourage construction enterprises to create excellence, the state also formulated the "Construction Quality Evaluation Standards for Construction Projects", but this evaluation standard is "excellent" rather than "high-quality", so it cannot be determined that the project involved in the case does not meet the construction standards agreed in the contract only with the completion acceptance criteria of "qualified, not yet high-quality". After inquiring about the relevant selection procedures from the department in charge of project evaluation, the procuratorate confirmed that the selection of "high-quality" structural projects required the contractor to declare in advance before the start of the project, and the competent department did not receive the relevant declaration materials from Construction Company B.
The procuratorate inquires about the excellent selection process of construction projects from the construction project quality supervision department.
Oversight opinions. After review, the procuratorate held that the evaluation of the high-quality structure of the project and the acceptance of the completion of the project were not the same procedure, and the labor subcontract involved in the case stipulated that the project must meet the quality standard of "high-quality subject", but in the project acceptance conclusion of the "Unified Standards for Construction Quality Acceptance of Construction Projects", there is only the difference between "qualified" and "unqualified", or "qualified through acceptance", and there is no acceptance conclusion of "high quality". According to the Measures for the Evaluation of High-quality Structures of Construction Projects in Shandong Province and relevant regulations, the evaluation of high-quality structural projects requires the contractor to declare in advance before the start of the project, otherwise the evaluation of high-quality structures cannot be carried out. In this case, when Construction Company B did not declare "high-quality structure" and "excellent project", it only relied on the conclusion that the "Self-assessment Acceptance Record Form was qualified and did not reach high quality", and claimed that the project constructed by Labor Service Company did not meet the "excellent" standard stipulated in the contract, and the basis was insufficient. Accordingly, the procuratorate filed protests with the court in accordance with the law in two cases.
Monitor the results. In December 2017, the Shandong Provincial Higher Court issued a civil ruling on the return of project funds, revoked the judgments of the first and second instance and remanded it to the court of first instance for a new trial. After a retrial, in November 2020, the court changed its judgment to reject B's claim that the project payment was reduced by 115 yuan per square meter, and that B paid more than 8.5 million yuan and interest to A labor service company. In June 2022, the Shandong Provincial Higher Court issued a retrial judgment on the liquidated damages case, and changed the judgment to exempt A Labor Service Company from more than 1.48 million yuan of liquidated damages. The successful handling of the two cases saved more than 16 million yuan of economic losses for A Labor Service Company.
【Typical significance】
(1) When handling cases involving private enterprise construction contract disputes, procuratorial organs shall first clarify relevant professional issues, laying the foundation for an objective and comprehensive determination of the facts of the case. In judicial practice, disputes in the field of construction projects often involve complex professional issues. In the course of handling cases, procuratorial organs should clarify relevant professional issues on the basis of clarifying the facts of the case. In this case, the procuratorate investigated and verified with the department in charge of project quality evaluation and confirmed that it had not received an application for evaluation before the construction enterprise started construction, and could no longer evaluate whether the engineering structure involved in the case was of high quality.
(2) Procuratorial organs should adhere to the concept of equal protection, prudently and prudently handle cases involving private enterprises, and demonstrate the procuratorial temperature of service to ensure the development of the private economy. In construction contract dispute cases, labor service companies are in a relatively weak position, and absorb a large number of migrant workers, if not handled properly, not only affect the development of enterprises, but also directly affect the payment of migrant workers' wages, easy to induce unstable factors. In this case, since "high-quality structure evaluation" and "completion acceptance" were not the same procedure, and the evaluation standards were inconsistent, the procuratorate, on the basis of comprehensively clarifying the standards of different evaluation systems, grasped the focus of the dispute, and was able to revise the judgment after the case protest, recovering more than 16 million yuan of losses for A Labor Service Company, and promoting the healthy development of private enterprises with high-quality case handling.
Case Ten
Zhao Moumou et al. and A Auto Company private loan dispute false litigation supervision case
【Keywords】
False litigation, criminal and civil coordination in the performance of duties, follow-up supervision, protection of the rights and interests of private enterprises
【Abstract】
For major cases involving false litigation involving private enterprises, higher-level procuratorial organs should strengthen operational guidance for lower-level procuratorial organs, promote the coordinated performance of duties by criminal and civil authorities, and achieve simultaneous implementation of cracking down on crime, correcting erroneous judgments, recovering stolen goods and recovering losses, and protecting the lawful rights and interests of private enterprises. Supervision opinions on civil cases involving private enterprises should be followed up on a case-by-case basis, and concerted efforts should be made to continuously supervise and ensure the uniform and correct implementation of the law.
【Basic facts of the case】
In 2013, Zhejiang Company B invested 56.81 million yuan in Anhui C Company, and A Automobile Co., Ltd. (hereinafter referred to as "A Auto Company") acted as a guarantor to provide guarantee for the investment, and the actual controller of Anhui C Company and A Auto Company was Cao Moumou.
In May 2016, Zhao filed a lawsuit against Automobile Company A in the Baohe District Court of Hefei City, Anhui Province, requesting the court to order Company A to repay the principal and interest of the loan totaling 16.868 million yuan. The day after the case was accepted, Zhao applied to the court for litigation preservation, and the Baohe District Court ruled to freeze the deposits in the bank account of A Auto Company. In June 2016, under the auspices of the court, Zhao reached a mediation agreement with Automobile Company, and the court issued a civil mediation document, confirming that Company A owed Zhao a a total of RMB 16.6 million in loan principal and interest, which should be paid in one lump sum before June 23, 2016. After the performance of the obligations of the car company expired, Zhao applied to the court for enforcement, and in August 2016, Zhao received more than 12.55 million yuan from the court.
In April 2017, Pan filed a civil lawsuit with the Hefei Intermediate Court, requesting the court to order Jia Auto Company and Cao to immediately repay the loan principal of 23 million yuan plus interest. In June 2017, the Hefei Intermediate Court rendered a civil judgment upholding Pan's claim.
In 2019, A Auto Company was ruled bankrupt and liquidated by the court due to insolvency.
【Procuratorial Authority's Performance of Duties】
Clue source. On April 20, 2020, the Supreme People's Procuratorate handed over to the Anhui Provincial Procuratorate the clues that Cao Moumou and others were suspected of false litigation, and the Anhui Provincial Procuratorate initiated the review procedure ex officio.
Investigation and verification. After reviewing the civil litigation file materials, going to the location of Zhejiang Company B to learn about the situation, and obtaining the bank statements of units and individuals involved in the case, such as Automobile Company A and Zhao Moumou, the procuratorate found that in May 2016, in order to transfer the executed assets of Company A, Cao instructed Zhao to fabricate creditor's rights and debts by intercepting bank statements, forging IOUs, power of attorney, etc., and Zhao filed a lawsuit with the court on the grounds of a private lending dispute to defraud the court of civil mediation. After obtaining the court's enforcement money, Zhao transferred the enforcement money to Cao's account in three installments. In 2017, Cao Moumou instructed Pan to fabricate creditor-debt relationships by intercepting bank statements, forging IOUs, power of attorney, etc. Later, Pan, as the plaintiff, filed a lawsuit with the court on the grounds of a loan dispute and provided false evidence, resulting in the court making an erroneous civil judgment based on fabricated facts.
In order to crack down on the crime of false litigation, the procuratorate and the public security organ jointly listed the case for supervision, and after the public security organ filed the case for investigation, combined with the evidence verified by the procuratorial organ, quickly solved the case, and Cao Moumou returned all the proceeds of the false litigation totaling more than 12.55 million yuan. On April 9, 2021, the court handed down a criminal verdict, and Cao Moumou and five others were sentenced to fixed-term imprisonment ranging from two years and ten months to six months for committing false litigation.
Initial supervision. On December 31, 2020, the Baohe District Procuratorate submitted a retrial procuratorial recommendation to the Baohe District Court, holding that in the case of Zhao Moumou v. A Automobile Company, Cao Moumou and others maliciously colluded to file a lawsuit for fictitious civil disputes by intercepting bank statements, forging "transfer instructions", and misappropriating others' transfer records, and conducted false mediation during the trial to obtain civil mediation documents, harming the national interest and social public interest, and should be corrected in accordance with law. The Baohe District Court did not accept the procuratorial recommendation on the grounds that the procuratorate's determination that the case was a false lawsuit "based on the interrogation records and interrogation records produced by the public security organs, but these records were formed in the investigation stage of the criminal proceedings, and had not yet gone through the trial stage, that is, the trial cross-examination and final determination were not completed".
On May 12, 2021, the Anhui Provincial Procuratorate filed a protest with the Anhui Provincial Higher Court on the grounds that the case of Pan Moumou v. A Automobile Company decided by the Hefei Intermediate Court was a false lawsuit. On June 4, 2021, the Anhui Provincial Higher Court issued a civil ruling ordering the Hefei Intermediate Court to retry the trial. On September 17, 2021, the Hefei Intermediate Court issued a civil ruling, revoking the original civil judgment and dismissing Pan's lawsuit.
Procuratorial personnel appeared in court to support the protest.
Follow-up supervision. In response to the failure of the Baohe District Court to adopt the procuratorial recommendations in the case of Zhao Moumou v. A Automobile Company, the procuratorate initiated follow-up supervision procedures. On May 7, 2021, the Hefei Municipal Procuratorate filed a protest with the Hefei Intermediate Court over the case.
In response to the Hefei Intermediate Court's decision to revoke the original civil judgment and dismiss Pan's lawsuit in the case of Pan Moumou v. A Automobile Company, the Anhui Provincial Procuratorate held that, in accordance with the law, the people's court should dismiss the lawsuit by judgment if it was found to be a false private loan lawsuit, and the court in the case closed the case in the form of a ruling that was obviously improper, so it initiated a follow-up supervision procedure ex officio.
Monitor the results. On May 24, 2021, the Hefei Intermediate Court issued a civil ruling on the case of Zhao Moumou v. A Automobile Company, ordering the Baohe District Court to retry the case. On August 19, 2021, the Baohe District Court issued a retrial judgment, adopted the supervision opinions of the procuratorate, revoked the original civil mediation letter and rejected Zhao's litigation claim.
On April 12, 2022, the Anhui Provincial Higher Court arraigned the case of Pan Moumou v. A Automobile Company and issued a civil ruling, revoking the civil judgment and civil ruling of the Hefei Intermediate Court, and ordering the Hefei Intermediate Court to try again. On June 21, 2022, the Hefei Intermediate Court rendered a civil judgment ordering the dismissal of Pan's claim.
The procuratorial organ held a symposium to brief the deputies and members observing the trial of the case on the handling of the false litigation case, and to listen to the opinions and suggestions of the deputies and members.
【Typical significance】
The parties maliciously colluded to forge evidence or fabricate facts to file a lawsuit, defrauded the people's court judgment or mediation document, obstructed judicial order, undermined judicial authority, and constituted the crime of false litigation. In civil cases where it is found to be false litigation, the plaintiff's claim shall be dismissed by judgment in accordance with law. Procuratorial organs handling cases involving the supervision of false litigation involving private enterprises should persist in the coordinated performance of duties between criminal and civil personnel, fully use investigation and verification means to ascertain the facts of false litigation according to their authority, and promptly transfer leads on suspected violations and crimes to the relevant organs for investigation and handling, and when necessary, they may jointly supervise and handle them with the public security organs. It is necessary to increase the follow-up and effectiveness of civil supervision cases of false litigation, and where courts do not adopt supervision opinions without legitimate reasons or retrial judgments are wrong, they should coordinate with the top and bottom to continue supervision to ensure the quality and effectiveness of supervision and truly protect the lawful rights and interests of private enterprises and private entrepreneurs.
[Source: Supreme People's Procuratorate]