Recently, Beijing King&Capital Law Firm WangXinTong and LiSong lawyers defense of a company executive J suspected of misappropriation of funds crime case achieved good defense effect. This case is a public security bureau of zhejiang province, and come to Beijing to arrest, the amount of suspected misappropriation of funds up to more than 20 million yuan. Suspect J may face a prison sentence of nearly ten years. The defense team intervened in the case, through unremitting efforts, put forward professional advice, so that the case after two returns to the supplementary investigation, and finally to the investigating authorities to withdraw the case closed, the party J regained his innocence, the client on the work of the defense team to be fully recognized and affirmed.
I. Accepted the commission, rapid attack
J is a supervisor of a robotics company (hereinafter referred to as Company C) and usually works in Beijing. On a certain day, a police officer from a Beijing police station suddenly came to the company to take J away, on the grounds that J was suspected of committing a crime and was being pursued online. In this regard, J's colleagues and leaders are very dismayed, doubling the sense of suddenness. But the situation has been very urgent, in the case of the first time to contact the lawyer Wang Xin Tong, Wang lawyer according to the extremely limited information for professional analysis, and accompanied by the company personnel and the authorities to communicate with the case, put forward the views of the bail pending trial.
It is understood that the case stems from the C company in a city in zhejiang province government fund (hereinafter referred to as B company) in the local cooperation business dispute, the case authorities believe that as the B fund invested in the C company's supervisor J, suspected of misappropriation of company funds, so the J investigation. The behavior occurred in 2021 before the implementation of the amendments to the Criminal Law (XI), so in accordance with the principle of "from the old and light", should be applied to the more lenient 1997 Criminal Law, but even so, in front of the J, but also nearly ten years of imprisonment penalty. Fortunately, J was detained for more than a month and was released on bail pending trial.
Second, professional defense, recognized by the case-handling authorities
At the stage of examination and prosecution, the case entered a critical period. Through reading the file, we learned that the investigating authority accused J of utilizing his position as a supervisor in Company C to embezzle RMB 20 million yuan of the company's funds for his personal use, which had not been returned for more than three months, and considered that he should be held criminally liable for the crime of embezzlement of funds.
In response to the logic of the accusation of the investigating authorities, Wang Xintong and Li Song lawyers reviewed in detail the evidence in the case, and communicated with J Mou objective situation, and finally determined the defense of innocence. The main point is: the parent and subsidiary companies involved in the existence of funds borrowing and lending, the indictment alleges that the amount of money is the parent company borrowed before the return, and borrowing, repayment path is highly consistent with the repayment behavior through the shareholders of the company and the management of decision-making agreed to comply with the corporate governance structure, not to the detriment of the company's interests, J has not been seeking personal gain does not constitute the crime of misappropriation of funds. The core points are summarized as follows:
1. the money in question did not go to personal use, but rather the company in question repaid the loan to the parent company without jeopardizing the interests of the company
The defense used a diagram to reveal the equity control relationship between the related companies involved in the case in order to reveal that J's actions were in line with the corporate decision-making will of Company C involved in the case. During the period in question, Company A (the parent company of Company C) was the majority shareholder holding more than 70% of the shares both for Company C and for Company B, a government fund, and had absolute control and decision-making power over the company's financial and operational matters (as shown in the diagram below). It is also because of the close partnership between Companies A, B and C and the same management team that there is a large amount of money lending between the three, and the amount of the allegations should not be judged separately.
2. The clear lending path shows that before the alleged time period, Company C borrowed about 20 million dollars from the parent company to pay the land bidding deposit and late fees, and the total amount of funds borrowed from the parent company may reach 23 million dollars.
By combing through the complex flow of funds between the companies involved in the case in detail, the legal team found that the allegations of the authorities only focused on part of the facts, and when looking at the overall facts of the case in its entirety, the amount of money involved was the complete path of inter-company borrowing and repayment, and did not involve J's personal misappropriation of funds. A brief example of the path of the relevant funds is shown below:
▲ Note: the defense of the case of a number of money flow for a detailed comb, in order to protect the privacy of the parties and the parties to the company, this is only an example, and omit the relevant speech excerpts and analysis of the part.
3. The transfer of funds was a decision of the company's shareholders and decision-making bodies, and J did not misappropriate the funds privately.
The transfer of funds was unanimously approved by the management of the company, which was substantially in line with the company's decision-making mechanism. The legal interest protected by the crime of misappropriation of funds is the property rights and interests of the unit, and the borrowing of funds belongs to the company's major business matters, which should be discussed and decided by the management of the company. The Articles of Association of Company C did not make special provisions on corporate borrowing, of which Article 18 stipulated that the corporate body of the company was the executive director. Both the company's legal person and the executive director recognized the abovementioned lending of funds between related enterprises, and there was no violation of the corporate governance structure by J to privately misappropriate the company's money.
This case belongs to the local fund B company's minority shareholders malicious report, criminal means to resolve economic disputes, this cooperation the company concerned has suffered huge economic losses. This situation is not rare in judicial practice, in this regard, the supreme people's procuratorate and the supreme people's court report clearly put forward, resolutely prevent the civil liability into criminal liability, more effective prevention and control in the name of criminal cases meddling in civil economic disputes. The Supreme Procuratorate, together with the Ministry of Public Security, also issued the Opinions on Improving the Mechanism for Investigative Supervision and Collaboration and Cooperation, and jointly set up the Office of Investigative Supervision and Collaboration and Cooperation, which demonstrated the distinctive attitude of the judicial organs in resolutely drawing the line between economic disputes and economic crimes. The defense asked the procuratorial authorities to strictly follow the law of crime and punishment, the principle of no doubt, evidence and other principles, so that the civil to the civil, to correct the wrong accusations in this case.
Third, the case is withdrawn, the cloud opens up
After the formation of the defense opinion, the defense team submitted it to the procuratorial authorities at the first time, and repeatedly communicated with the contractor of the procuratorial authorities proactively, positively and sincerely, and elaborated the defense opinion in detail. Even during the seriousness of the epidemic, the defense team still took the risk of being quarantined for several days and went to the local area to communicate and negotiate face to face with the contractor and the reporting unit. The procuratorial authorities attached great importance to the opinions of the defense lawyers and also gave them a very high evaluation. In view of the fact that the case generated a large controversy in both factual findings and application of law, the procuratorial authorities returned the case to the investigating authorities twice for additional investigation. In the end, the investigating authorities decided to terminate the investigation of J. The case achieved good defense results.
In the course of this case, the defense team once again deepened its knowledge of the legal community. In the process of handling the case, the host prosecutor always treats with courtesy, the questions raised by the lawyer, but also patiently listen and reply, but also to the work of the defense lawyers have given a high degree of recognition and affirmation, and even more so that the host lawyer is the image of the real lawyers in their own heart of the ultimate evaluation. This is to let the defense team in the work of harvesting a sense of identity and sense of achievement, but also make the defense work can be carried out smoothly, and ultimately achieve good defense results, we here also thank the authorities in the case under pressure to adhere to the law.
