Recently, an audience member told the Voice of China that in Yingshang County, Fuyang City, Anhui Province, a private entrepreneur was sentenced to eight years for embezzlement of funds. Under normal circumstances, after the misappropriation of funds occurs, the enterprise or the injured shareholder will generally report the case to the public security organs, and after investigation by the public security organs, the local people's procuratorate will initiate a public prosecution. But there are no so-called injured parties in this case. After two first-instance trials and two second-instance trials, the Fuyang Intermediate People's Court finally sentenced defendant Liu Minghui to eight years' imprisonment and one year's imprisonment for the crime of misappropriation of funds and bribery by the unit, and eight years and six months' imprisonment for both crimes.
However, in the view of Liu Minghui's family and the lawyers involved in this case, Liu Minghui's group company implements unified financial management and implements Liu Minghui's one-pen approval system, and as the controlling shareholder, he has the right to transfer the funds of the group company, and the funds transferred are also used for the operation of the group company, which does not constitute the crime of misappropriation of funds. How can you commit the crime of "embezzlement of funds" by using your own company's money on the operation of the company? How does the Anhui Fuyang Intermediate People's Court respond to this?
Click on the audio to listen to the report of the Central Broadcasting Reporter:
The group controlling person was convicted of embezzlement of funds for transferring group funds
According to a "Case Registration Form" stamped with the official seal of the Criminal Investigation Brigade of the Yingshang County Public Security Bureau, at 14:32 on June 4, 2015, the Yingshang County Public Security Bureau received a case from the Yingshang County People's Government to handle the suspected misappropriation of funds by Yingshang County Qingcheng Real Estate Co., Ltd. and immediately conducted an investigation. After investigation, from April 2010 to May 2015, Liu Minghui, the actual controller of Yingshang County Qingcheng Real Estate Co., Ltd., without the consent of the shareholders' general meeting, embezzled more than 100 million yuan of the Ludu CBD project to other projects for benefits without the consent of the shareholders' general meeting, resulting in more than 380 sets of housing in the Ludu CBD project being unable to be delivered to the owners due to lack of funds, resulting in an extremely bad social impact.
Fuyang Yingshang County Public Security Bureau case registration form
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The Yingshang County Public Security Bureau told the Voice of China reporter: After the Yingshang County Government learned about the relevant situation, it handed over this clue to the Public Security Bureau, which was not recorded in the "Case Registration Form", and the county government handed over to the County Public Security Bureau Yingshang County Qingcheng Real Estate Company suspected of misappropriating funds.
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However, the origin of this case is indeed that the funds of the Ludu CBD project are not all spent on the project itself. The Yingshang County Public Security Bureau said that after filing and investigating the clue, it was found that Liu Minghui, the actual controller of the Ludu CBD Project Company, embezzled funds to other projects for benefits without the consent of the shareholders' meeting, resulting in the inability to hand over the house. In 2017, the Yingshang County People's Procuratorate filed a public indictment with the Yingshang County People's Court against defendant Liu Minghui for misappropriating funds and bribery by the unit. On December 24, 2018, the Fuyang Intermediate People's Court sentenced defendant Liu Minghui to eight years and one year in prison, respectively, for the crime of misappropriation of funds and bribery by the unit, and eight years and six months in prison for both crimes.
Liu Minghui's younger brother Liu Mingwei explained that Nanjing Ludu Holding Group Company (parent company), with Liu Minghui as chairman and legal representative, has two subsidiaries, Namengshang County Qingcheng Real Estate Company in Anhui Province and Chuzhou Ludu Real Estate in Anhui Province. Liu Mingwei said that the three companies implement unified financial management according to the group company. There are two shareholders of the parent company, Liu Minghui is the controlling shareholder, accounting for 51% of the shares, and the other shareholder is called Huang Chengpan. The two jointly decided to unify the financial management of the three companies and implement Liu Minghui's one-pen approval system.
Liu Mingwei: "The real estate company needs to use money, all of which are approved in accordance with the group's financial system, and finally signed by Liu Minghui." Because all the investments in the company are decided by the shareholders' meeting, and my brother is the master. Huang Chengpan, the company is profitable, he takes the profit, and if he loses, he loses. ”
According to the second-instance criminal judgment rendered by the Intermediate People's Court of Fuyang City, Anhui Province, Liu Minghui's act of lending the pre-sale funds of its subsidiary Yingshang County Qingcheng Company to another subsidiary, Chuzhou Ludu, and its parent company, Nanjing Ludu, was an act of misappropriating the funds of his own unit to other companies for personal benefits, involving an amount of more than 138.96 million yuan, and secondly, he also used 7 million yuan of the subsidiary Yingshang County Qingcheng Company to return personal debts, which constituted the crime of misappropriation of funds and was a huge amount.
The Fuyang Intermediate People's Court's second-instance judgment found that two tranches of funds were misappropriated to other companies
Liu Mingwei explained that there was a problem with the capital operation of the real estate company, Liu Minghui borrowed money to maintain the company's operation, and the 7 million yuan transferred from Yingshang Qingcheng Company was not put into his personal pocket.
Liu Mingwei: "At that time, the real estate company needed to use money, my brother Liu Minghui borrowed 15 million yuan from Gu Guoping, and when the time came to repay this money, my brother mortgaged his family's house, repaid Gu Guoping more than 8 million, and then transferred 7 million yuan from the real estate company and returned it to Gu Guoping." This money is actually used by the real estate company, and my brother is paying off this debt for the real estate company. ”
In addition, the reporter found that the fuyang intermediate court's second-instance judgment mentioned that Liu Minghui embezzled two sums of money to the parent company and another subsidiary, 55.52 million yuan and 73.44 million yuan respectively, but the sum of the two transactions was only more than 128.96 million yuan, which was 10 million yuan less than the second-instance judgment.
The total amount of misappropriation to other companies as determined by the fuyang intermediate court's second-instance judgment
The person concerned is not an employee of the Company,
Can it be the subject of the crime of misappropriation of funds by a company?
The crime of misappropriation of funds first depends on whether the staff of the company, enterprise or other unit has taken advantage of their positions to embezzle the funds of their own units for personal use or loan to others. The second-instance criminal judgment rendered by the Intermediate People's Court of Fuyang City, Anhui Province, held that although Liu Minghui did not hold a position in the subsidiary Yingshang Qingcheng, he was the actual controller of the company and should be identified as a staff member of the company. Liu Minghui's defender, Jiang Qingfeng, a lawyer at Anhui Hongmiao Law Firm, held the opposite opinion, arguing that there was no legal basis for equating the actual controller with the company's staff.
Jiang Qingfeng, Liu Minghui's defender and lawyer at Anhui Hongmiao Law Firm, said: "The main law on the crime of misappropriation of funds is the staff of the company and the enterprise, and Liu Minghui performs his duties as the sole shareholder representative in Yingshang Qingcheng Company, he has neither any administrative position, nor has he signed a labor contract, nor does he receive wages in the company, he is not a staff member prescribed by law, and he is not the subject of the crime." ”
The judgment also mentioned that Liu Minghui was the actual controller of the two subsidiaries of Qingcheng Ludu and Chuzhou Ludu, and also the controlling shareholder of the parent company, Nanjing Ludu, and the court held that his practice of lending the pre-sale funds of the subsidiary's commercial housing to another subsidiary and the parent company was misappropriation of the funds of the unit to other companies for personal benefits. Liu Minghui's defense lawyer, Jiang Qingfeng, disagreed with the court's judgment, arguing that the court confused "the existence of personal interests" and "seeking personal interests."
Jiang Qingfeng: "The facts determined by the court judgment confirm that the funds involved in the case were used by the company, but if it believes that the controlling shareholder of the company that uses the funds is Liu Minghui, it determines that Liu Minghui has personal interests, and interprets the existing personal interests as seeking personal interests in the criminal law." It is a requirement of the market economy for shareholders to engage in for-profit acts through the establishment of a company, the existence of personal interests is normal and legal, and the pursuit of personal interests is an illegal act of private use of public funds, and the fuyang courts at both levels have confused legal acts with illegal acts. ”
Regarding the crime of misappropriation of funds, the judgment also mentioned that Liu Minghui used 7 million yuan of his subsidiary Yingshang Qingcheng to repay his personal debts. On November 17, 2016, the People's Court of Nanchen District, Chuzhou, Anhui Province, issued a civil judgment in which the plaintiff was Gu Guoping and the defendant was Chuzhou Ludu, a subsidiary of Liu Minghui Holding Company. The civil judgment mentions that Liu Minghui and another shareholder, Huang Chengpan, repeatedly borrowed money from plaintiff Gu Guoping for "setting up and operating Chuzhou Ludu Company", of which 15 million yuan was borrowed by Liu Minghui from plaintiff Gu Guoping with house mortgage. In other words, the judgment determined that the subject of the 15 million yuan of loan debt was "Chuzhou Ludu Company", not Liu Minghui personally.
Civil judgment of the People's Court of Nancheng District, Chuzhou City
However, the Intermediate People's Court of Fuyang City, Anhui Province, did not accept this effective civil judgment with evidentiary effect, holding that this civil judgment could only prove that Liu Minghui borrowed money, but could not prove that the loan was used by the company, and its behavior was to misappropriate the funds of the unit for personal use. Liu Minghui's defense lawyer, Jiang Qingfeng, told the Voice of China that he felt incomprehensible that the two effective court judgments made different determinations about the same fact.
Jiang Qingfeng: "For the 7 million yuan involved in the case, the Fuyang courts at both levels determined that it was to repay personal debts, and the basis for the determination was a testimony of Huang Chengpan in the supplementary investigation of the Public Security Bureau, which conflicted with the civil judgment that had already taken effect, and also contradicted Huang Chengpan's previous testimony, and Huang Chengpan's first testimony also proved that it was due to the loan required for the company's operation." The Fuyang two-level court found that Liu Minghui repaid 7 million yuan of the company's debts of 15 million yuan as a settlement of personal debts, which was obviously incorrect. ”
Liu Minghui is not an employee of Yingshang Qingcheng Company, can he become the subject of the company's crime of embezzlement of funds? Is the existence of personal interests equivalent to the pursuit of personal interests? Why didn't the court accept civil judgments that had the force of evidence? Why does the second-instance judgment overcalculate the misappropriation amount of 10 million yuan?
Fuyang Intermediate People's Court
On the morning of April 8, this reporter asked the Intermediate People's Court of Fuyang City, Anhui Province, for confirmation of the matter. The propaganda staff of the Fuyang Intermediate People's Court said that the leaders needed to hold a meeting to discuss the matter. At 4 p.m., the staff said that the presiding judge went to his hometown in Jiangsu because of his mother's serious illness and was inconvenient to accept an interview, everything was subject to the judgment, and the parties could appeal if they were not satisfied. On the afternoon of April 9, the reporter received a phone call from the staff in charge of propaganda of the Intermediate People's Court, saying that the Intermediate People's Court attached great importance to the questions raised by the reporters, and after study, the court decided to retry the case.
"Just now, after research in our hospital, we believe that the judgment in this case does have the problem of applying the law incorrectly. We have now decided to retry. ”
Regarding the progress of things, the Voice of China will continue to pay attention to it.
CCTV: Chang Yafei