On February 18, 2024, the first working day of the Year of the Dragon, Shanghai held the 2024 Conference on Optimizing the Business Environment, and released the Action Plan for Shanghai to Adhere to Benchmarking Reform and Continue to Build a World-class Business Environment (i.e., version 7.0 of the Action Plan). At the meeting, Secretary Chen Jining pointed out that it is necessary to focus on key tasks, unite the city's joint efforts, and do a good job in optimizing the business environment with perseverance and perseverance in the spirit of nailing.
Recently, the Municipal Procuratorate issued the "Shanghai Municipal Procuratorate on the Implementation of the Supreme People's Procuratorate's "Procuratorate and Enterprise" Special Action Division Plan. The "Plan" refines and forms 22 tasks in three aspects: crime punishment, legal supervision, and service guarantee.
The "Plan" requires that the city's procuratorial organs should focus on cracking down on illegal usurious lending and derivative crimes; carry out special governance on the use of online platforms to illegally and maliciously disseminate false and untrue information related to enterprises, deliberately spread rumors and smear enterprises and entrepreneurs, and carry out extortion and extortion of enterprises; work with administrative supervision departments to carry out governance such as trade secret protection, malicious litigation of intellectual property rights, and malicious preemptive registration and hoarding of trademarks; increase the punishment of crimes of breach of trust and damage to the interests of enterprises by internal personnel of enterprises, and help enterprises eliminate malpractices. Improve internal governance, persist in investigating bribery and bribery together, increase the recovery and correction of improper benefits from bribery, especially strengthen anti-corruption and risk prevention in the financial sector, and handle high-quality cases of new types of job-related crimes in the financial sector. See ↓ for details
Shanghai A Culture Co., Ltd., Shanghai B Media Co., Ltd., and Chen Moumou false invoicing case
Huangpu District Procuratorate
Basic facts of the case
During the operation period of Shanghai A Culture Co., Ltd. (hereinafter referred to as "Company A") and Shanghai B Media Co., Ltd. (hereinafter referred to as "Company B"), Chen, the actual controller of Shanghai A Culture Co., Ltd. (hereinafter referred to as "Company B"), was entrusted by the client company to issue a total of 24 false ordinary VAT invoices for each other through Companies A and B from October to November 2018, with a total price and tax of RMB 2.12 million.
In January 2023, the public security organs transferred Company A, Company B and Chen Moumou to the Huangpu District Procuratorate for review and prosecution on suspicion of false invoicing. Through social investigation, the Huangpu District Procuratorate found that the management negligence in the financial management and compliance review of the above-mentioned companies was an important reason for the occurrence of the case, and the management of the enterprise also expressed its willingness to use the case to promote reform and carry out compliance. Based on the specific circumstances of the case and the circumstances of the enterprises involved in the case, the Huangpu District Procuratorate found that Companies A and B met the scope and conditions for compliance of the enterprises involved in the case, so it initiated the compliance procedures of the enterprises involved in the case in February of the same year and applied the third-party supervision and evaluation mechanism. In May of the same year, after the compliance inspection was completed, the procuratorate made a relative decision not to prosecute Company A, Company B and Chen Moumou based on the facts of the crime and the company's compliance rectification, and after a public hearing.
Procuratorial performance of duties and typical significance
01
Conform to the actual situation of the enterprise, pay attention to process management, and strive to comply with the situation and form practical results.
Companies A and B are both small enterprises, and the establishment of the direction of their compliance investigation is carried out simultaneously with the two main lines of "corporate compliance governance" and "reshaping the compliance responsibility of corporate executives". After the third-party supervision and evaluation organization fully assessed the compliance plan formulated by the enterprise involved in the case in the early stage, it put forward 21 rectification opinions from the aspects of improving the company's financial compliance system. Among them, there are not only amendments to the company's invoice system, financial system and contract management system, but also compliance testing programs for corporate executives and financial personnel, as well as key points of legal training for all employees of the company. The company's management has always attached great importance to and actively responded to the implementation of the compliance plan and the implementation of the rectification opinions of the procuratorate and the third-party supervision and evaluation organization, ensuring the efficient and smooth promotion of compliance.
02
Explore the quantitative standards of third-party compliance assessment and solve the difficulties in tax-related compliance inspection.
In order to ensure the effectiveness and fairness of compliance acceptance, the Huangpu District Procuratorate, in cooperation with the third-party supervision and evaluation organization, conducted an acceptance inspection on eight aspects, including whether the enterprise has a complete financial system, whether the enterprise actually implements the system, and the regulatory effect of each link, and comprehensively accepts and evaluates the real compliance effectiveness of the enterprise. In addition, the court will also summarize the rectification difficulties, compliance points and evaluation priorities of tax-related compliance cases with compliance experts, and issue the Guidelines for the Compliance Acceptance and Assessment of Enterprises in Tax-related Cases, providing quantitative indicators and practical solutions for such compliance inspections.
03 Strengthen the connection and cooperation of tax compliance executions, and pass on the baton of compliance results.
After the Huangpu District Procuratorate made a decision not to prosecute the enterprise involved in the case, it promptly transferred it to the tax authorities and recommended that it be given a lenient administrative penalty. After a comprehensive review, the tax department confirmed the compliance results, made a decision to impose lenient penalties on the two enterprises, and implemented a mechanism for linking criminal incentives and administrative incentives. On this basis, the court took the lead in signing the "Working Mechanism on Strengthening the Convergence and Cooperation between Tax Administrative Law Enforcement and Criminal Justice" with the tax and public security departments, forming a cooperation mechanism for compliance social investigation, compliance leniency administrative punishment, tax policy consultation, etc.
04 Help enterprises to solve problems and help enterprises rejuvenate.
During the period of compliance rectification of companies A and B, the procuratorate urged them to pay attention to the actual needs of cultural media enterprises in the process of transformation and development, and provided them with legal advice, case presentations and other judicial services for many times, so as to guide them to enhance their market competitiveness in accordance with laws and regulations. Later, one of the company's cultural and creative design projects won the international design award.
Zheng applied for case filing supervision
Songjiang District Procuratorate
Basic facts of the case
The applicant, Mr. Zheng, is the person in charge of a milk tea shop in another province or city.
Since July 2014, defendants Jin, Liu and others have established Company A to engage in catering investment promotion activities. In order to obtain illegal benefits, since 2018, Jin and others have split the network center and other departments of Company A to establish 29 affiliated companies, which have been upgraded to Group A for unified operation. Group A induced private small and micro enterprises and other market entities to sign contracts by fictitious more than 20 milk tea brand influences, fictitious operational capabilities, providing false authorizations, and hiring celebrity endorsements to defraud franchise fees. In this process, a criminal group was formed with Jin as the leader, with relatively fixed personnel at all levels and a clear division of labor. At the time of the case, 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 heavy losses. Among them, Zheng signed a franchise contract with a subsidiary of Group A and paid a franchise fee of 190,000 yuan, but later found out that he had been deceived and reported the case. After review, the public security organs found that there were no facts of the crime and decided not to file the case.
Zheng submitted an application for case filing supervision to the 12309 Procuratorial Service Center of the Songjiang District Procuratorate, believing that Jin and other relevant personnel were suspected of contract fraud, and requested the procuratorate to file a case for supervision. After the Songjiang District Procuratorate accepted the case, after investigation and verification, it was found that the case was ostensibly a franchise contract dispute, but there were many victimized franchisees, and most of the relevant franchise fees entered the personal accounts unrelated to the franchise business. Later, the public security organs decided to file a case for investigation, and after the Songjiang District Procuratorate reviewed and arrested and prosecuted, Jin and other 69 defendants were sentenced by the court to 14 years and six months to three years and one month for contract fraud, and were fined accordingly. Some of the defendants appealed, and the original judgment was upheld in the second instance, and the judgment has taken effect.
Procuratorial performance of duties and typical significance
01 Strengthen the integrated performance of duties to ensure accurate characterization and strong accusations.
In the process of handling difficult and complex new types of cases, the Songjiang District Procuratorate adheres to the integrated performance of its duties, and reports to the branch court and the municipal procuratorate in a timely manner, so as to achieve linkage between the upper and lower levels. After the court discussed and debated the key issues, it quickly dispatched personnel to intervene in the investigation and guide the collection of evidence in accordance with the law. The first is to find out the modus operandi of the crime. Guide the public security organs to sort out and verify from the evidence that there are fictitious operation teams, promotion services and other "routines" in the franchise link. The second is to identify the willingness and ability to perform the treaty. Guide the public security organs to sort out the personnel structure, verify that Group A is operated by the same group of people who constantly change companies, brands, and locations, and respond negatively after completing the investment promotion, and prove the falsity of Group A to join by comparing it with the franchise process of well-known brands. The third is to clarify the method of evidence collection. In response to the large number of victims, their wide distribution, and the difficulty in collecting evidence, promptly guide the public security organs to use methods such as victims' self-statements and the collection of civil judgments to fix evidence.
02 Strengthen the comprehensive performance of duties to ensure the quality and efficiency of case handling and the protection of enterprises.
This case is the first case of "routine joining" contract fraud in Shanghai, and the criminal methods and behaviors are highly confusing. The Songjiang District Procuratorate accurately characterized, cracked down accurately, supervised the public security organs to file and investigate in a timely manner, and effectively responded to the judicial needs of private start-ups. Accurately charged the crime, and found out that the gang had Jin as the ringleader, fixed important members and ordinary members, a clear hierarchical structure, a clear horizontal division of labor, and the sharing of illegal profits, so it was determined that it was a criminal group. In the end, Jin and the other seven main offenders were sentenced by the court to more than 10 years in prison and were severely punished by law.
03 Strengthen active performance of duties to ensure timely recovery of stolen goods and comprehensive recovery of losses.
The Songjiang District Procuratorate insists on paying equal attention to cracking down on crime and recovering stolen goods and recovering losses, so as to not only grasp the end and treat the disease, but also grasp the front end and treat the disease before it happens. The first is to intensify the recovery of stolen goods and losses. Actively guide the public security organs to strengthen the collection and fixation of evidence on the flow of funds, promptly seal and seize real estate and other property purchased with unlawful gains, freeze Group A's funds involved in the case and seal up real estate, and urge defendants to take the initiative to return stolen goods during the prosecution process. The second is to broaden the channels for reversing losses. In response to the discovery in the case that a certain celebrity endorsed the brand involved in the case, failed to fulfill its duty of prudence, and was at fault, the Songjiang District Procuratorate issued a procuratorial recommendation to the brokerage company where the star worked, regulating the behavior of not making a spokesperson, urging the refund of endorsement fees, and recovering the victim's economic losses to the greatest extent, and suggested that the company draw inferences from one case and strengthen review and management to avoid the recurrence of the celebrity's non-endorsement.
Source: Shanghai Municipal Procuratorate, Shanghai Release
Editor: Xie Zhen
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