On April 1, the third issue of “Semi-Monthly Talk on Criminal Defense” sponsored by the Criminal II Department of King&Capital Law Firm was successfully held in King&Capital Law Firm. The event was presented by partner Mr. Zhou Wenda, moderated by senior partner Mr. Xia Jun, with senior partner Mr. Liu Lijie, senior partner Mr. Zhu Yalin, senior partner Mr. Niu Xingli, and partner Mr. Meng Fan having a talk.
At the beginning of the activity, Mr. Xia Jun introduced the purpose and significance of the series of activities of “Semi-Monthly Talk on Criminal Defense” to the participants, especially the holding of this difficult case seminar, which is conducive to broadening and perfecting the idea of defense, and is also valuable for improving the defense skills. In addition, Mr. Xia Jun also expressed his warm welcome and thanks to the participants.
Mr. Xia Jun
The third issue of Criminal Defense Semi-Monthly Talk centered on a difficult case adapted by lawyer Zhou Wenda on the issues of evidence determination, crime and non-crime. In the case, the public security authorities responsible for investigating the case first conducted a preliminary investigation on defendant A for the crime of occupying a position, and after two months of preliminary investigation, the public security authorities finally refused to file a case on the grounds that there were no criminal facts in the case. Subsequently the public security organs and the aforementioned case during the preliminary investigation, the public security organs issued three times to retrieve evidence notice did not get a cooperation on the grounds of the crime of concealing accounting books again on a criminal case, while a criminal detention, and then according to the retrieval of financial accounting books and other evidence that a suspected of occupational misappropriation of the crime. Upon examination and prosecution, the public prosecution authority prosecuted the case to the court for the crime of concealment of accounting books and the crime of misappropriation of functions. In addition to the overview of the case, Mr. Zhou Wenda also introduced the relevant documents, resolutions of the company's shareholders' meeting, resolutions of the board of directors, and testimonies of some witnesses in the evidentiary materials of the case, so as to let the participants have a comprehensive understanding of the facts of the case, and put forward a number of points of contention of the case, which triggered a lively discussion.
Zhou Wenda
In the talk session, Liu Lijie, Niu Xingli, Zhu Yalin, Meng Fan and other lawyers respectively focused on the facts of the case, the evidence and the application of the law and other issues, to express their own insights.
LiuLiJie lawyer on the one hand, combined with the “public security organs for criminal cases procedural regulations” article 174 provisions, that the public security organs in the stage of accepting the case “can” according to the law to retrieve evidence materials, but does not have the power to take coercive measures to retrieve the evidence, that the investigated person in the case of the initial stage of the investigation and submit the evidence of the mandatory obligations At the same time, “refused to provide” is a kind of inaction, itself requires the source of the obligation to act as stipulated in the law, in this case that the inaction of A constitutes a crime, seems to lack of legal basis. On the other hand, combining the legal provisions of Article 311 of the Criminal Law on the crime of refusing to provide evidence of espionage, terrorism and extremism, it is proposed that only those who refuse to provide evidence related to the above three types of crimes of great social harm and seriousness of the circumstances will have the culpability and necessity of criminal prosecution, and the so-called concealment of the accounting books of the present case is significantly lower than the refusal to provide evidence of espionage, terrorism, extremism, and so on. The social harm and severity of the so-called act of hiding accounting books in this case are significantly lower than the crime of refusing to provide evidence of espionage, terrorism, and extremism, so it is not appropriate to recognize the crime of hiding accounting books as a crime in the case of the seminar.
Liu Lijie
Lawyer Niu Xingli believes that whether the charge of “job misappropriation” can be established depends on whether A has committed the objective behavior of “fictitious company profits and personal performance”, and whether he has the subjective purpose of taking the company's property for himself. First of all, the profit “has been realized not carried forward” is just not an accounting account to another accounting account, not profit did not occur, and a objectively did not implement the falsification of accounting data, only based on the shareholders agreed to determine the shareholders' resolution to receive the year-end bonus, did not cause the loss of the company's property, does not meet the objective elements of the crime; in addition, a “fictitious company profits and personal performance” objective behavior, and whether the subjective purpose of the company's property for themselves. The objective elements of the crime; in addition, as the real controller of Company B, A distributed the year-end bonus based on the resolution of the shareholders' meeting to other executives and employees of the company who were also eligible, so it can be seen that he did not have the subjective purpose of “illegal appropriation”, and did not meet the subjective elements of the crime.
Niu Xingli
According to Zhu Yalin, there are two types of criminal means alleged by the public prosecution, one is to adjust the expected profit in 2021 to 2020; the other is to reduce the operating cost in 2020. For the first allegation, the core issue is whether the defendant inflated operating income, and this case there is a key information is the distribution of profits when the expected profit in 2021 has been income to the account, so there is no inflated problem, at best, the profit will be distributed in advance, in this case the company has no actual loss, so it should not constitute the crime of misappropriation of functions. To put it in another way, even if the expected profit is not income to the account, in the financial should be reflected as “accounts receivable”, the defendant did not take any measures to smooth out these accounts, eliminate, even if the later did not recover the profit, can also be through the checking of the accounts of the way will be returned to the early distribution of profits, can not be elevated to the level of criminal offenses. Regarding the second means of allegation, if it can be proved that it does exist, this part does have the possibility of suspected crime.
Zhu Yalin
Meng powder lawyers believe that the object of the crime of misappropriation of property is the company, enterprise or other units of property ownership, constitute the crime is very important to see the company has no loss of property, the loss of the company's property in this case is filed after the use of different auditing caliber, whether it is the actual loss of the company needs to be further confirmed. If the company does not actually have property losses, even if the perpetrator used the means of cost reduction, inflated profits, in essence, did not cause the company's economic losses, does not constitute this crime. In this case, reference can be made to the company's auditing practices in previous years to prove that the perpetrator did not use deceptive methods to take the company's property for himself, and thus incriminate himself.
Meng Fan
In addition to the interlocutors, other attorneys in attendance also expressed their views on the case, and colleagues from the Civil and Commercial Department also fully expressed their professional opinions on the civil and commercial legal issues involved in the case. Men Jinling, associate professor of Chinese Academy of Social Sciences University and part-time lawyer of King&Capital Law Firm, even put forward defense opinions from both procedural and substantive perspectives, which elevated the theme of this seminar. Door Jinling lawyers believe that the investigating authorities in the preliminary stage of the investigation is not filed to issue a letter of evidence itself is questionable, and did not take any seizure measures, just because the defendant unit has not yet filed did not submit the evidence, is not enough to hide, destroy or refused to provide the crime of accounting books. Suspected of job appropriation, objectively the defendant to get the bonus benefit is to participate in the distribution of other employees with the board of directors resolution supported by the fact that the bonus distribution of the company's profits based on its contracting period has been the actual hands of the profits, and from the defendant accounted for 30% of the equity point of view of the bonus benefit is far from being enough. From the subjective level, there is no illegal possession of purpose, every move is a collective decision. This case also exists in the jurisdiction of the dispute, criminal means to intervene in civil disputes is not desirable, in general, has a larger space for defense.
Men Jinling
In addition to the above views, the attorneys also discussed the validity of the Audit Report issued by the accounting firm, the validity of the shareholders' resolution, and the loopholes of the case from the prosecution's point of view, and the atmosphere was warm. The participating lawyers gained a lot.
The Semi-Monthly Discussion Mechanism of Criminal Defense on Difficult Cases hosted by the Criminal II Department provided reference for the lawyers in the firm to improve the quality of handling cases and better serve the clients, which fully embodied King&Capital Law Firm's teamwork, specialization and comprehensive working style, and the third issue of Semi-Monthly Discussion on Criminal Defense came to a successful end amidst the applauding voices.
