Jiangxi Ruichang People's Court
criminal judgement
(2006) Ruixing Zi ChuNo. 10
Public prosecution agency Ruichang People's Procuratorate.
Defendant Han, male, 1953 was born in Guiyang City, Guizhou Province in July, Han nationality, junior high school education, chairman of Hong Kong United Investment Co., Ltd., and lives at No.3, Floor 5, Unit 2, Building 32, Luosi Mountain Road, Yunyan District, Guiyang City, Guizhou Province. He was arrested with the approval of the People's Procuratorate of Ruichang City on May 20, 2005, and was arrested by Yunyan District Public Security Bureau of Guiyang City on July 12 and by Ruichang Public Security Bureau on July 17 of the same year. Now detained in Ruichang detention center.
Defender Yin Xingchang, lawyer of Jiangxi Taiji Law Firm.
Defendant Wang Zhizhong, male, was born in Ruichang, Jiangxi Province on June195712, Han nationality, high school educated, unemployed, and lives at No.523 Renmin North Road, Ruichang City. Suspected of contract fraud, Ruichang Public Security Bureau made a criminal detention decision on June 5438+1October 65438+August 2004, and was detained by Nanhu Police Station of Shenzhen Public Security Bureau on April 65438+April 2005, detained by Ruichang Public Security Bureau on April 20 of the same year, and arrested on May 20 of the same year. Now detained in Ruichang detention center.
Defender Chen, lawyer of Jiangxi Taiji Law Firm.
The People's Procuratorate of Ruichang accused the defendant Han of contract fraud with the indictmentNo. 187 of Rui Criminal Inspection (2005), and filed a public prosecution with our hospital on February 9, 2005. Our college formed a collegial panel according to law and heard the case in public on June 5438+1October 5, 2006. Ruichang Municipal People's Procuratorate appointed procurator Cheng to appear in court to support public prosecution. Defendant Han and his defender Yin Xingchang, and defendant and his defender Chen attended the proceedings. The case has now been closed.
Ruichang Municipal People's Procuratorate accused that on June 5438+1October 65438+February, 2003, the defendant Han signed the Investment Project Agreement with Ruichang Municipal People's Government on behalf of Hong Kong United Investment Co., Ltd., and then the defendant Han entrusted the defendant and others to handle the relevant procedures for the establishment and registration of Jiujiang Gangchang Industrial Co., Ltd. according to this agreement. Defendant Han instructed the defendants and others to undertake the project in the name of "Jiujiang Gangchang Industrial Co., Ltd." without paying the land transfer fee according to the investment project agreement and paying the industrial and commercial registration funds on schedule, and to collect the project deposit (down payment and performance bond) or to squander the loan. Up to the time of the incident, a total of 746,000 yuan of project funds and 280,550 yuan of loans were collected from Shanghai Branch of East China Engineering Construction Bureau of the Navy, Fujian Linde Construction Co., Ltd., Hubei Huanggang Construction and Installation Co., Ltd. and Peng.
Regarding the facts of the above allegations, the public prosecution agency read out and produced the following evidence in court:
1. The confession of the defendant Han, Han and Han in the stage of public security investigation. Prove the fact that the two defendants contracted the project in the name of "Jiujiang Gangchang Industrial Co., Ltd.", collected the project deposit and loan, and failed to pay the land transfer fee and industrial and commercial registration fee on time.
2. Witnesses Yu Deguang, Xia Anshui, Ke Zunping, Jjianming Feng, Ke Zunliang, Huang, Gu Linxiang, Peng, Zhu, Song Zengxing, Li, Zhu, Zhou, Zou; , as well as the construction agreement and payment receipt. It is proved that the two defendants charged 746,000 yuan for the project and 280.55 million yuan for the loan from Shanghai Branch of East China Engineering Construction Bureau of Navy, Fujian Linde Construction Co., Ltd., Hubei Huanggang Construction and Installation Engineering Co., Ltd. and Peng and other individuals.
3. Testimony of witnesses Ke Zunzhi, Zhang, Chen Shilai and Yan Chunjian. To prove the fact that the two defendants contracted the project in the name of "Jiujiang Gangchang Industrial Co., Ltd." and collected the project deposit.
4. Investment project agreement, power of attorney, business license of enterprise as a legal person, articles of association, reply of Jiujiang Foreign Economic and Trade Commission on the articles of association of Jiujiang Gangchang Industrial Co., Ltd., certification materials of Ruichang Gold Industrial Park Management Committee, and certification of Jiujiang Administration for Industry and Commerce. This is to certify that the defendant Han entrusted the defendant and others to register Jiujiang Gangchang Industrial Co., Ltd. according to the investment project agreement, but the company failed to pay the registered capital according to the articles of association and the land transfer fee according to the investment project agreement, and the company has not conducted annual inspection since its establishment.
5. Obtain the certification materials of the two defendants, the seal of the sealed company, the list of licenses, the list of sealed deposit certificates, the remittance receipt and the household registration certification materials of the two defendants. Prove that the two defendants have been arrested and the relevant articles have been detained.
The public prosecution agency believes that the defendant Han, in the process of signing and performing the contract, defrauded the other party's property for the purpose of illegal possession, and the amount was extremely huge. His behavior has constituted the crime of contract fraud, so please punish him according to law.
Defendant Han argued that he did not commit the crime of contract fraud because he did not have this right.
It is not clear about outsourcing projects and outsourcing projects in Wang Zhizhong. The defense opinion put forward by his defender is that the indictment found that the fact that the defendant Han instructed the defendant and others to contract the project in the name of "Jiujiang Gangchang Industrial Co., Ltd." and collect the project deposit was insufficient, and Han did not participate in the project contracting, so his behavior did not constitute the crime of contract fraud.
Defendant Wang Zhizhong argued that this was only for attracting investment and serving the company, not for contract fraud. The defense opinion put forward by his defender is that the defendant's behavior has constituted the crime of contract fraud, but his contracted project was approved by Korea, and most of the project funds collected were used by Korea, so the criminal effect was less than that of Korea, and his guilty attitude was better. Please ask the court to give a lighter sentence.
It was found through trial that on June 5438+1October 65438+February 2003, the defendant Han signed an investment project agreement with the Ruichang Municipal People's Government on behalf of Hong Kong United Investment Co., Ltd., decided to set up an enterprise in Ruichang Gold Industrial Park, and authorized the defendant and Liang Ping to be responsible for the preliminary preparation and signing of the enterprise. On March 8, 2003, the defendant and others received the business license of Jiujiang Gangchang Industrial Co., Ltd. and the tax registration certificate of foreign-invested enterprises on March 25, 2003, and applied for the special seal for the contract of Jiujiang Gangchang Industrial Co., Ltd., the special seal for the finance of Jiujiang Gangchang Industrial Co., Ltd. and the personal seal of the legal representative Han. Later defendants Han, Liang Ping and others failed to pay the land transfer fee as agreed in the investment project agreement, nor did they subscribe for capital and pay the registered capital as stipulated in the articles of association of Jiujiang Gangchang Industrial Co., Ltd., so they began to fabricate the project in the name of Jiujiang Gangchang Industrial Co., Ltd. on April 2 of the same year to conceal the fact that the registered capital was not in place and the industrial land was not allocated. Signed "Special Seal for Jiujiang Gangchang Industrial Co., Ltd." successively with Shanghai Branch of Navy East China Engineering Construction Bureau, Hubei Huanggang Construction and Installation Engineering Co., Ltd., Jinqingniu Construction Engineering Company, Ruichang East China Construction Co., Ltd., Fujian Linde Construction Co., Ltd., Jiangxi Changsha Construction Engineering Group Co., Ltd. and individuals such as Zhu, Zhou, Zou, Ke Zunping, Peng and Song Zengxing. And the false project contracting agreement signed and sealed by the individual, and issued a receipt stamped with the "Special Financial Seal of Jiujiang Gangchang Industrial Co., Ltd." to collect RMB 65.8 in the name of project contract performance payment, project construction contract deposit and project contract deposit. The money was squandered by the defendants Han, Han and others.
The above facts are confirmed by the following evidence presented in court and cross-examined:
1, investment project agreement. This is to confirm that Han signed an agreement with Ruichang Municipal People's Government on behalf of Hong Kong United Investment Co., Ltd. on June 5438+10/October 65438+February 2003. The agreement stipulates: "Party B (Hong Kong Joint Investment Co., Ltd.) shall pay all land leasing fees to Party A within 30 days after the signing of this agreement". It is also agreed that "this agreement will come into effect from the date when Party B pays the land transfer fee to Party A".
2. Power of attorney. Confirm that Han entrusted the company to handle the preparatory work for the company in the name of the chairman of Hong Kong United Investment Co., Ltd.; Entrusted Liang Ping to handle relevant signing matters on behalf of the company.
3. Business License for Enterprise as a Legal Person and Tax Registration Certificate for Foreign-invested Enterprises. It is confirmed that "Jiujiang Gangchang Industrial Co., Ltd." was registered for industry and commerce on March 8, 2003 with a registered capital of10.75 million USD, and received the tax registration certificate on the 25th of that month.
4. List of sealed seals and other items. Confirm that the company applied for the seal of contract and finance at that time.
Articles of Association of Jiujiang Gangchang Industrial Co., Ltd.. Confirm that the Company complies with the Articles of Association: pay the first contribution within 90 days from the date of issuance of the business license, and the contribution shall not be less than 65,438+05% of the subscribed contribution.
6. Certification materials of Ruichang Gold Industrial Park Management Committee on April 30, 2005 and Jiujiang Administration for Industry and Commerce on May 9, 2005. Confirm that Jiujiang Gangchang Industrial Co., Ltd. has not settled in Ruichang Gold Industrial Park, and the Industrial Park Management Committee has not allocated industrial land to the company. Jiujiang Gangchang Industrial Co., Ltd. has not been inspected annually since its establishment.
7. Testimony, agreement and receipt of witness Gu Linxiang. It is now confirmed that on April 2, 2003, he signed an engineering construction agreement with Liang Ping, then general manager of Jiujiang Gangchang Industrial Co., Ltd. on behalf of Shanghai Branch of East China Engineering Construction Bureau of the Navy, and paid a performance bond of 80,000 yuan. In May and June of the same year, Han went to Shanghai to inspect the Shanghai Branch of the East China Engineering Construction Bureau of the Navy.
8. Testimony and receipt of witness Song Zengxing. It is now confirmed that he remitted 35,000 yuan to Han on April 17, 2003, and Han verbally promised to pay him the project fee, and issued a receipt to him, marked "for the company's upfront expenses" and stamped with Han's personal seal.
9. The testimony, agreement and receipt of the witness Xia Anshui. It is now confirmed that on April 8, 2003, Huanggang Construction and Installation Engineering Co., Ltd. of Hubei Province signed an engineering construction confirmation agreement with Jiujiang Gangchang Industrial Co., Ltd., and Han was present during the negotiation, and the agreement was stamped with Han's personal seal, paying a deposit of 654.38 million yuan for the engineering construction contract.
10, witness Huang's testimony and receipt. It is confirmed that it signed a construction agreement with Wang Zhizhong, the boss of Jiujiang Gangchang Industrial Co., Ltd., in the name of Hubei Jinqingniu Construction Engineering Company on May 3, 2003, and paid a construction contract deposit of 50,000 yuan.
1 1, testimony, agreement and receipt of witness Zhu. It is confirmed that it signed an engineering construction agreement with Wang Zhizhong, who is in charge of the business of Jiujiang Gangchang Industrial Co., Ltd., on June 1 1, 2003, and paid the project contract deposit of 20,000 yuan on June 65438+3, 2003.
12. Testimony, agreement and IOUs of witness Jjianming Feng. It is now confirmed that on July 9, 2003, in the name of Ruichang Huadong Construction Co., Ltd., an engineering construction agreement was signed with Wang Zhizhong Jiujiang Gangchang Industrial Co., Ltd., and the payment was 30,000 yuan. Wang Zhizhong issued an iou to Jjianming Feng.
13, testimony, agreement and receipt of witness Zhou. It is confirmed that he signed the project construction agreement with Wang Zhizhong of Jiujiang Gangchang Industrial Co., Ltd. in his own name on July 8, 2003, and paid the project security deposit of 40,000 yuan on the same day, and then paid10,000 yuan on the 23rd of the same month.
14, witness Ke Zunping's testimony and receipt stub. It is now confirmed that it paid 5,000 yuan to Wang Zhizhong, general manager of Jiujiang Gangchang Industrial Co., Ltd. on August 7, 2003. ..
15, testimony and receipt of witness Ke Zunliang. Confirmed that it introduced Fujian Linde Construction Co., Ltd. into Jiujiang Gangchang Industrial Co., Ltd. in September 2003 and signed an agreement. After that, the project deposit (deposit) was paid in succession, totaling150,000 yuan. Wang Zhizhong issued receipts of 70,000 yuan and 80,000 yuan on September 65.438+07 and September 25, respectively. After confirmation, I went to Shenzhen several times to ask Han for the project payment and urged him to repay the project payment.
16, testimony, agreement and receipt of witness Yu Deguang. It is confirmed that it signed the project construction agreement with Wang Zhizhong, the head of Jiujiang Gangchang Industrial Co., Ltd. on behalf of the fifth branch of Jiangxi Changsha Construction Engineering Group Co., Ltd. on June 65438+1October 65438+June 6, 2003, and paid the project contract amount of 80,000 yuan as the creditor's right.
17, witnessing the agreement and receipt between Peng and. It is now confirmed that on February 6, 2004, He Yu and Jiujiang Gangchang Industrial Co., Ltd. signed an engineering construction agreement, and paid 20,000 yuan for the project on the same day. Later, he borrowed 3000 yuan from the company and paid a deposit of 5000 yuan in July of the same year.
18, witness Zou's testimony and receipt. It was confirmed that it signed a construction agreement with Ke Zunzhi of Jiujiang Gangchang Industrial Co., Ltd. on March 3, 200412004, and paid 2,000 yuan for the project on that day, and then on April 510,000 yuan, 2,000 yuan and 2,000 yuan.
19, witness Cheng Guangdong's testimony, agreement and receipt. It is confirmed that on May 10, 2004, in the name of Ruichang Guilin Construction Co., Ltd., an engineering construction agreement was signed with Ke Zunzhi of Jiujiang Gangchang Industrial Co., Ltd., and a project security deposit of 20,000 yuan was paid.
20. Testimony of witnesses Ke Zunzhi, Zhang, Chen Shilai. It was later confirmed that Wang Zhizhong was in charge of Jiujiang Gangchang Industrial Co., Ltd. when he worked in the company. The company contracted out the project and collected the project deposit without entering the industrial park and having no factory planning and design materials. At the same time, it is confirmed that all contracted projects during his tenure have been reported to Han, and Han also went to Shanghai to inspect East China Construction Bureau. Fujian Linde Construction Company visited Shenzhen many times to find Han, and Han also received him. When Xia Anshui signed the agreement in the name of Hubei Huanggang Construction Company, he also contacted Han in Ruichang Municipal Government Guest House.
2 1, current savings deposit voucher, bank card business receipt. It is hereby confirmed that a total of RMB 299,700 was remitted to Korea from April 8, 2003 to April 4, 2004.
22. Proof of payment and proof of household registration. Confirm the defendant Han, bring him to justice and his identity.
23. Defendant Han's confession at the stage of public security investigation. It is now confirmed that Han appointed Liang Ping as the general manager of Jiujiang Gangchang Industrial Co., Ltd., and later appointed as the general manager. After Han confessed, he knew that he would contract the project in the name of the company and collect the project deposit. He also received funds from Wang Zhizhong many times. The confessions of the two defendants and the above evidence can confirm each other and form a chain of evidence.
The above evidence is true, legal and valid, and we confirm it.
Defendants Han,, and their defenders' defense opinions that the actions of the two defendants do not constitute the crime of contract fraud. After investigation, the defendant Han began on April 6, 2003 +07, and accepted a project from Song Zengxing by promising him RMB 35,000. The next day, in the name of "Jiujiang Gangchang Industrial Co., Ltd.", he signed the Project Construction Confirmation Agreement with Yin Huan Construction and Installation Engineering Co., Ltd. in Huanggang, Hubei Province, and collected a deposit of 654.38+10,000 yuan from the project construction contract. The receipt issued to Song Zengxing and the Project Construction Confirmation Agreement signed by him are all stamped with Han's personal seal. Subsequently, the defendant signed the project contracting agreement for many times in the name of the company, collected the project deposit, and remitted the collected money to Han for many times. Accordingly, the defense of the two defendants and the defender's opinion that their actions do not constitute the crime of contract fraud are inconsistent with the factual evidence and will not be adopted by our court.
About the fact that the indictment accused the defendant Han and borrowed money in the name of the company. Upon investigation, most of the IOUs attached to this case are personal economic debts of Wang Zhizhong. For more than 200,000 yuan of funds remitted by Ke Zunliang, because the bank card business receipt provided by Ke Zunliang only has the bank card number, there is no payee's name, and there is no receipt or loan voucher from Wang Zhizhong, so the indictment has insufficient evidence for this accusation, and our court will not confirm it.
We believe that the defendant Han, Han and Han signed a false project contracting agreement in the name of the company for the purpose of illegal possession, and the land of Jiujiang Gangchang Industrial Co., Ltd. was not allocated and the registered capital could not be put in place, which constituted the crime of contract fraud and should be punished according to law. The charges charged by the public prosecution agency are established and confirmed by this court. Accordingly, in accordance with the provisions of Articles 224, 25, paragraph 1, and 64 of the Criminal Law of People's Republic of China (PRC) and Article 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Unit Crimes, the judgment is as follows:
1. Defendant Han was convicted of contract fraud, sentenced to 12 years' imprisonment and confiscated property of RMB200,000.
2. Defendant Wang Zhizhong was convicted of contract fraud, sentenced to fixed-term imprisonment of 12 years and confiscated property of 200,000 yuan.
Third, the defendant Han, and jointly compensated for the illegal income of 6.58 million yuan.
The above-mentioned confiscated property shall be paid within one month after the judgment takes effect.
(The term of imprisonment shall be counted from the effective date of the judgment. If a person is detained before the execution of the judgment, one day of detention shall be reduced to one day of imprisonment. That is to say, the defendant Han's term of imprisonment began on July 2, 2005 and ended on July 7, 2005 1 120 17; The term of imprisonment of the defendant Wang Zhizhong was from April 14, 2005 to April 17, 2005.
If you refuse to accept this judgment, you can appeal to the Intermediate People's Court of Jiujiang City, Jiangxi Province through our court or directly within ten days from the second day of receiving the judgment. A written appeal shall be submitted in one original and three copies.
Judge Daliang Nagata
People's juror Tao Cailong
People's juror Zhao
February 23(rd), 2006
Bookkeeper Xu Fang