On June 13, 2024, the 7th issue of “Semi-Monthly Discussion on Criminal Defense”, which is organized by the Criminal Department of King&Capital Law Firm, “Semi-Monthly Discussion on Criminal Defense”, was successfully held in King&Capital Law Firm. The senior partner of King&Capital Law Firm, Mr. Xia Jun presided over this case study activity, Mr. Huang Kai as the sharer of the case was introduced in detail, and the guests of this seminar activity were Associate Professor of Chinese Academy of Social Sciences, Mr. Men Jinling, the senior partner of King&Capital Law Firm, Mr. Zhao Qilong, Mr. Wang Xintong, at the same time, the senior partner of King&Capital Law Firm, Mr. Xiao Shuwei, Mr. Yang Hangsheng, and the director of King&Capital Law Firm, Mr. Zhang Peng Peng and other nearly 30 Kyoto lawyers participated in this activity enthusiastically. Thirty King&Capital lawyers enthusiastically participated in this activity, we gathered together, brainstorming, and actively carried out multi-angle strategy discussion and viewpoint sharing.
The seminar case is a private entrepreneur for real estate project financing, in the financing process by the partner to deception, intimidation, signing of yin and yang contract and other means leading to the expansion of the debt, the company's equity was transferred, financing funds were transferred and other consequences, resulting in the parties to carry a huge amount of debt, become the “old bad”. Mr. Huang Kai introduced the details of the case, and pointed out the fact that the other party consolidated the “false” debt and equity loss through litigation procedures, and introduced the activity into the seminar to discuss the feasibility and strategy of criminal charges against the cooperative party under the background of criminal-civilian intersection.
According to Ms. Men Jinling, we need to pay attention to several points when working from the perspective of criminal prosecution, firstly, the risk of complicity. In this case, there are two parties shareholding and seal of the fact of common management, criminal charges need to be cautious about our party may be suspected of complicity in the relevant crimes. Second, the claim of economic interests. On the basis of the risk of complicity in the prevention, around the demand for the recovery of money to determine the way, method, rhythm and process of the charge. Door Jinling lawyers also pointed out that the need to use the defense thinking to guide the work of criminal charges, strictly based on the law of crime and punishment to write the charge material, such as suspected fraud charges, the charge material must be clear what facts are fictitious, conceal what the truth, and must be triggered by the parties to produce a wrong understanding, and the disposal of property, which in turn produce property losses, a series of cause and effect must be sorted out clearly.
Zhao Qilong lawyer from the civil thinking perspective, for everyone involved in the case of banker's acceptance, bill discounting, equity transfer and guarantee and other civil and commercial concepts, and similar scenarios in civil cases as an example, proposed from the fraudulent behavior and causation requirements of the relatively loose civil fraud to start with the idea. Zhao Qilong also believes that the case is a common civil and commercial legal action, if from the purpose of recovering the money and reducing the debt, directly through the agreement whether to specify the flow of funds and the use of the loan, etc., can be recognized that the original equity transfer agreement is invalid due to the lack of good faith, and the recovery of the equity is more suitable for the parties to the current urgent demand.
Wang Xin Tong lawyers believe that lawyers to carry out criminal prosecution work, it means that in the case of not having the public security organs of the investigation means, but also to bear the initial burden of proof. We need to organize evidence to prove the seven elements, namely who, what, when, where, where, where, what cause and what effect. Lawyers need to defend the interests of their clients to the fullest extent possible. Criminal reporting is not an end in itself, it is just a way to recover losses. We need to take into account the specific circumstances of the case, take the client's claim as the starting point, and utilize the relevant knowledge and experience of criminal and civil intersection to come up with a comprehensive response plan. If there is new evidence that the factual findings of a civil judgment that has entered into force are erroneous, you can apply for a retrial to get to the root of the problem. When filing a criminal report, it is also necessary to consider the crime and angle of the report, for example, although the logic of the crime of loan sharking is simpler, it is not possible to recover the loss for the person concerned, and the crime of fraud may be more conducive to the recovery of the stolen goods and the recovery of the loss.
Xia Jun lawyer in the hosting process, combing, summarize the attorneys proposed by the prosecution of ideas and case strategy. This issue of criminal defense semimonthly discussion is a typical criminal and civil cross difficult cases, involving multiple facts, complex cases, through the discussion of this case also triggered by the lawyers on the criminal and civil cross issues, criminal prosecution strategy of the depth of thinking, we brainstorming, in the case of broadening the ideas, but also to enhance the skills of handling the case. In this seminar case, the rights and interests of private entrepreneurs have been seriously infringed upon, as the criminal prosecution party's attorney, open up the mind, broaden the thinking, do our best to protect the legitimate rights and interests of private entrepreneurs is particularly necessary.
