Recently, King&Capital lawyer Xu Ming defense of a listed company chairman GaoMouMou job invasion and appropriation, backstabbing damage to the interests of listed companies, insider trading case verdict. The total amount involved in this case is hundreds of millions of dollars, in the unremitting efforts of the defenders, the amount of 250 million yuan of job occupation in the review and prosecution was not recognized; the amount of 35 million yuan of breach of trust to the detriment of the interests of listed companies the court sentenced to acquittal; through the plea of guilty to the amount of 108 million yuan, avoiding the loss of 16 million yuan of insider trading sentenced to five and a half years of imprisonment as a lighter penalty. The case is a securities and futures crime case with national influence, which has been reported in depth by many famous media such as Beijing TV, Sina Finance, China Fund News, Shanghai Securities News and so on.
The state has gradually strengthened its efforts to combat securities and futures crimes, increased penalties, and under the background of "zero tolerance", securities and futures crimes will certainly become a type of case with high attention in the coming period. The defense of such cases will also move towards a new direction of development.
First, the chairman of the board of directors was prosecuted for breach of trust: spending a huge amount of money to buy a house without property rights to lose the deposit of 35 million yuan
Procuratorial authorities prosecuted between 2015 and 2016, Gao Moumou used his position as the actual person in charge and chairman of the board of directors of Beijing ×× listed company to facilitate the signing of the "Beijing Housing Sale and Purchase Contract" as well as the "Supplementary Agreement" in the name of Beijing ×× listed company with A, and paid a total of 165.3 million RMB for the purchase of the house as of August 29, 2016. on September 6, 2016, Gao Moumou took the name of Ltd. transferred back the purchase price of RMB20.3 million from A and still failed to fulfill the payment obligation after receiving the Notice on Whether to Continue Performance issued by A, resulting in the loss of RMB35 million of the deposit for the purchase of the house by Beijing × × Listed Company.
Second, the defenders to dismantle the evidence, verify the key documentary evidence, denied the facts of the prosecution, proved that Gao did not take advantage of his position to "empty" the listed company, the final verdict of not guilty.
The legal facts alleged in the indictment is based on the statement of the three people in the case and the relevant testimony, verbal evidence corroborate each other, so as to determine that Gao Moumou and the financial director of the two use the convenience of their positions, to buy the property rights of the building and pay the deposit, and finally led to the failure of the purchase of the building, so that the company defaulted on the loss of the deposit of 35 million yuan.
The defense by combing through dozens of files, disassembled to check the case of the relevant bank water, bookkeeping vouchers, payment vouchers, contracts and other relevant documents, found and corroborated in the company's accounts to pay a deposit of $35 million for the purchase of a building is just a channel, not a deposit. And the indictment of the deposit is recognized through the testimony of the bank flow of the patchwork, there is no actual documentary evidence. Secondly, the defense also through the collation of documentary evidence found that the indictment of the purchase price of 20.3 million yuan, is only the financial director for listed companies to go through the financial channel, not the purchase price. Accordingly, the court ultimately recognized the defense opinion, the listed company did not breach of contract, denied the facts of the prosecution of the deposit loss.
In this case on the determination of Gao's breach of trust crime, the key depends on whether the application of the breach of trust crime of touting provisions. The criminal law adopts the enumerated way to describe "for obviously does not have the solvency of the unit or individual to provide guarantee" and other five types of breach of trust damage to the interests of the listed company, at the same time in item (f) using the underlining way stipulates "using other ways to damage the interests of the listed company " behavior. From the criminal law system interpretation and the purpose of the interpretation of the method, the first five items listed in the article are company executives through improper transactions with affiliated companies "empty" listed company behavior. From this case, the behavior of high moumou is obviously not the typical crime of breach of trust.
Evidence in the case can confirm that high a real purchase of property will, and not use the purchase of real estate "empty" listed companies intentionally. Although the purchase of the property without a real estate license, but in the process of purchasing the property has been applied for a real estate license because of the sale of the property. Gao moumou although not due diligence obligations, but not at an obviously unfair, unreasonable price for the purchase of the property. And according to the documentary evidence can be confirmed, the reversal of the 20.3 million yuan payment is not a purchase price, the fact of loss of deposit and the behavior of the lack of criminal law causal relationship. Finally the panel adopted all the defense opinions, sentenced Gao Moumou not constitute the crime of breach of trust damage to the interests of listed companies.
Third, there are common problems in the development of listed companies, the state of securities and futures crimes "zero tolerance" background, the defense of such cases will also move towards a new direction of development.
China's rapid development of the market economy, after the epidemic era of compliance has been spread throughout the country, listed companies in recent years, there are a large number of violations of the disclosure, related transactions, violations of guarantees, insider trading, and other common problems are endless. Therefore, in order to protect the interests of listed companies and shareholders and the market economic order, the state has gradually strengthened the fight against securities and futures crimes, increased penalties, and "zero tolerance" for them.
(I) Revision of the Criminal Law to increase penalties for securities and futures crimes
Amendment XI to the Criminal Law, which came into effect in March 2021, revised the penalty for fraudulent issuance of securities from a maximum of five years' imprisonment to fifteen years' imprisonment. The penalty for the offense of illegal disclosure or non-disclosure of important information was revised from a maximum of three years' imprisonment to ten years' imprisonment. It can be seen that the state in the fight against securities and futures crimes in the strengthening of penalties, in particular, the violation of disclosure behavior in listed companies in general, to circumvent a variety of ways, but as securities and futures crimes in the easier to identify the bottom of the crime, the punishment in the next few years will be a substantial increase.
(ii) The Office of the Central Committee and the Office of the State Council issued a document calling for "zero tolerance" of securities and futures crimes.
In July 2021, the General Office of the Central Committee of the Communist Party of China and the General Office of the State Council issued the "Opinions on Strictly Cracking Down on Securities Illegal Activities in accordance with the Law", which called for "zero tolerance" for securities and futures crimes, increasing the strength and scope of the crackdown, strengthening the construction of trials in Beijing, Shenzhen and other locations of stock exchanges, and implementing the "zero tolerance" for securities and futures crimes by intermediate courts and procuratorates at the same level. (ii) The Supreme Prosecutor, the Ministry of Public Security and the Ministry of Justice have established the level of jurisdiction for first-instance trials of securities and futures crimes, and have increased the enforcement of administrative penalties and judicial judgments.
(iii) The Supreme Prosecutor and the Ministry of Public Security issued Provisions (II) on the Filing Standards for Criminal Cases under the Jurisdiction of Public Security Organs, which increased penalties for those who know insider information
In April 2022, the Supreme Prosecutor and the Ministry of Public Security jointly issued the Provisions on the Criteria for Filing Criminal Cases under the Jurisdiction of the Public Security Organs (II), which re-established the filing criteria for nine types of securities and futures crimes, increased the penalties, and halved the filing criteria for insider trading where the subject of the transaction is a person who has knowledge of the insider information as stipulated in the Securities Law, i.e., where the amount of profit gained or loss avoided by the insider trading is at That is, if the profit or loss avoidance amount of insider trading is more than 250,000 yuan, or if the turnover of securities trading is more than one million yuan, or if the amount of margin taken up by futures trading is more than 500,000 yuan, a case shall be filed and investigated.
In the country's securities and futures crimes "zero tolerance" background, will lead to the Securities and Futures Commission to increase the investigation and handling of securities violations, insider trading, disclosure violations and other securities and futures cases that have not been transferred to the public security organs to investigate and deal with all such cases are bound to be investigated and dealt with severely. In the coming period of time, securities and futures crimes in the country (especially in Beijing, Shenzhen, Shanghai and other stock exchanges) will certainly become more investigation and handling of high-profile types of cases, and the defense of such cases will also move towards a new direction of development.
