Recently, the case of Gao Mou, represented by Mr. Zhang Qiming and Mr. Xu Ming from King&Capital, was successfully selected as Case No. 1563, Series 138 of Criminal Trial Reference. The difficulty of this case lies in how to recognize the crime of breach of trust to the detriment of the interests of a listed company as “using other means to harm the interests of a listed company”. The defense lawyers sorted out all the economic transactions between the companies and individuals involved in the case, and deeply excavated the background and purpose of each transfer, which was finally accepted by the court due to the sufficient basis and strict logic of the defense viewpoints.
First, dismantle the economic transactions, in-depth excavation of facts
At the beginning of 2015, a listed company Teng A Company Limited (hereinafter referred to as “Teng A Company”), the chairman of the board of directors Xu Mou was retained, retained before Xu Mou appointed Gao Mou as the chairman of the company, on behalf of the company to deal with the affairs of the company. Gao Mou considered the investment property can increase in value, and Yin Mou property location is better, appreciation space, decided to buy Yin Mou property. 2016 March 24, Gao Mou in the case of only his subordinates have seen the property, through the board of directors resolved to buy the property, and the next day signed a formal purchase agreement, agreed to liquidated damages of 35 million yuan. As of August 29, 2016, a total of 165.3 million yuan was paid to Yin. on September 6, 2016, Gao transferred back the purchase price of 20.3 million yuan from Yin in the name of Teng A. He also failed to fulfill the payment obligation even after receiving the Notice of Whether or Not to Continue to Perform issued by Yin, which resulted in the loss of 35 million yuan of the deposit for the purchase of the property by Teng A. The court found that Gao had not fulfilled the payment obligation, and that he had not paid the deposit for the purchase of the property.
The case-handling authority held that Defendant Gao Mou, taking advantage of his position as the actual person in charge and chairman of Teng A Company, intentionally transferred back the purchase price of RMB 20.3 million and failed to fulfill the payment obligation in a timely manner in the process of signing the property purchase contract and supplemental agreement with Yin Mou, resulting in the loss of 35 million yuan of the deposit for the purchase of the property by Teng A Company, which belonged to the category of “adopting other ways to harm the interests of listed companies” and constituted breach of trust to the detriment of the listed company. This is “using other ways to harm the interests of listed companies”, which constitutes the crime of breach of trust and harming the interests of listed companies. However, after the defense review, GaoMou transferred back 20.3 million yuan is GaoMou design to make up for the previous business activities to raise funds to go away money, not the purchase of the house, and GaoMou in YinMou issued the “whether to continue to perform the notice” point before the company has withdrawn from the operation, no longer go to the office to work, YinMou reserved is the office of the landline telephone rather than GaoMou's cell phone number, after the issue of the courier has not notified GaoMou, so subjectively did not know YinMou, but did not know the company's business, and did not know that GaoMou is not the company's business. Therefore, subjectively did not know that Yin urged payment, and did not deliberately create a breach of contract, damage to the interests of the company's intention.
Second, the charge to a make up for a, the process of litigation twists and turns
The process of this case can be said to be three twists and turns, fully tested the defense of the facts of the case, the ability to judge the direction of the case, as well as the ability to communicate with the case-handling authorities. The public security authorities originally transferred Gao Mou to the procuratorial authorities on suspicion of breach of trust to the detriment of the interests of a listed company, and the crime of misappropriation of office. In the examination and prosecution stage, the procuratorial authorities to part of the facts are unclear, insufficient evidence for the reason, returned to the investigating authorities to supplement the investigation twice, extend the examination and prosecution period once. During the period, the defense review of the whole case file, that Gao does not have the identity of the subject of the crime of misappropriation, to the individual transferred money is in fact to repay the company's real controller and the private debt between individuals, and did not unlawfully take possession of the unit's property. Procuratorial authorities to adopt the lawyer's opinion, remove the crime of occupational misappropriation, but also supplemented the insider trading crime to the court. Due to the fact that Gao Mou on insider trading facts confessed, the defense to the procuratorial authorities suggested that insider trading crime alone applicable plea bargaining, the procuratorial authorities to adopt the views of the defenders, and ultimately decided to Gao Mou suspected of insider trading crime applicable plea bargaining, breach of trust damage to the interests of listed companies does not apply to the crime of plea bargaining.
Third, the breach of trust was finally acquitted, promoting the improvement of the rules of application of the underpinning provisions.
The core issue of the dispute in this case is how to evaluate the behavior of Gao Mou draw back 20.3 million yuan of funds. There are frequent economic transactions between the company and the individual involved, even Gao himself is difficult to clearly recall the background and true purpose of the transaction, the defense will be involved in the case of each transaction are combed in depth, combined with the evidence in the case to reproduce the transaction facts, and ultimately found that Gao in order to make up for the holes in the previous Teng A company to raise funds account, contacted Yin Mou to go through its accounts. Any payment to Yin Mou housing funds will ultimately be paid to Yin Mou's personal account, and walk away from the non-housing money is transferred back to Teng A company or its designated companies through other companies, the 20.3 million yuan is exactly the transfer back to the Teng A company's funds account of the walk away from the money. Therefore, there was no criminal law causal relationship between the return of the money and whether Company Teng A paid for the house and performed the contract.
The court comprehensively evaluated Gao's motive for purchasing the house and the purpose of withdrawing the funds, and finally adopted the defense's opinion. The court held that, first, the evidence in the case can prove that the 20.3 million yuan is not GaoMou intentionally draw back, but TengA company used to balance the books, the existing evidence is not enough to prove that the defendant GaoMou intentionally create a breach of contract, resulting in YinMou to obtain 35 million yuan deposit. Secondly, Gao Mou did have the real will to buy the property in question, and signed a house sale contract, and subsequently arranged for Cai Mou to pay the relevant money, and did not have the subjective intent to empty out Teng A Company through the purchase of the property in question. Thirdly, in August 2016 after Xu was released on bail, Gao and Xu had a conflict, Gao in about October 2016 will no longer often go to Teng A company office. Yin issued a notice and letter to Teng A company whether to continue to perform when Gao was not in the company, and at this time Teng A company also has to continue to continue to negotiate with Yin and even facilitate the conditions of the transaction, and thus Teng A company did not ultimately complete the housing sales contract with Yin is the company's own decision, and Gao behavior has no direct causal relationship.
On the basis of affirming the innocence of Gao Mou's breach of trust, the Criminal Trial Reference further improved the rules of application of the “other ways to harm the interests of listed companies”. On the one hand, the Criminal Law adopts an “enumerated” approach to stipulate five statutory circumstances for the crime of breach of trust damaging the interests of a listed company, including: (1) providing funds, commodities, services or other assets to other units or individuals without compensation; (2) providing or accepting funds, commodities, services or other assets on manifestly unfair conditions (3) Providing funds, goods, services or other assets to units or individuals that obviously do not have the ability to liquidate; (4) Providing guarantees for units or individuals that obviously do not have the ability to liquidate, or providing guarantees for other units or individuals without justifiable reasons; (5) Renouncing claims and assuming liabilities without justifiable reasons, and stipulating the provision of the “use of other means to harm the interests of the listed company”. The bottom clause of “using other ways to harm the interests of listed companies”. In this case, Gao withdrew 20.3 million yuan of funds does not belong to the above five legal circumstances, if the crime should be in the form, degree, social harm and the law stipulates that the behavior has “comparability”. On the other hand, in the specific judgment should uphold the principle of subjective and objective consistency, subjectively should examine whether the actor from the company's interests, whether the company's interests, whether the intention to hollow out the listed company; objectively should be examined to see whether the actor's management behavior is in line with the law and the company's regulations and decision-making process, but also to examine whether the actor's own self-interests or whether the actor's self-interests to others. The objective aspect should be examined whether the management behavior of the perpetrator complies with the law and the company's regulations and decision-making process, and also whether it is mixed with the perpetrator's own self-interest or whether it transfers benefits to others.
The case finally achieved the good results of not guilty of breach of trust, not guilty of job misappropriation, and a light sentence for insider trading of over 100 million yuan, and no appeal or protest was made within the statutory period after the verdict was pronounced. The defense lawyers gained the recognition of the client and the case-handling authorities with their exquisite skills, and also promoted the improvement of the legal application of similar cases on a larger level, which is conducive to the construction of the legal community and the rule of law in criminal matters, and demonstrated the value of the defense lawyers.
Translated with DeepL.com (free version)
