Recently, Lv Yan, Li Wei, Wang Zhiqiang lawyers accept the private enterprise executives entrusted to act as its defender, accurate characterization of the case and issued defense opinions, and prosecutors communicate with the prosecutor many times, submit written comments, held a hearing with the procuratorate, the procuratorial organs finally adopted the defense of the lawyers, the private enterprise executives of the Shen made the decision not to prosecute, King&Capital lawyers effectively safeguarded the legal rights and interests of the private enterprises and entrepreneurs. Lawful rights and interests of private enterprises and private entrepreneurs, to protect the healthy development of private enterprises.

The basic case 

2022 between September and November, in jiangsu province, a construction project public bidding, the project has experienced a bidding, the original winning company due to bidding and abolished. Before re-tendering, a city of a district street office staff Wang Mou found Shen Mou, let Shen Mou's A construction engineering limited company's design institute to deepen the design of the original substandard project drawings. Shen was introduced by wang mou and the project street urban construction office deputy director li mou contact, for the project to provide technical support for bidding. Shen mou put forward 300,000 yuan design fee offer, Li mou said this cost is not good to report, invited Shen mou to participate in the project bidding. Because the project has more professional green landscape design, Shen Mou find company B to provide assistance. company B said company C also participate in the project bidding, and invited company B to do joint bidding. After the formal EPC bidding, A company, C company and a number of companies are involved in the bidding, after the opening price, Shen saw the C company quote closest to the average value of the offer, Shen is worried about their own A company can not win the bid, it is with Li Mou, Zhang Mou, and other people to exchange the bidding, and learned that the winning bid for a city, a district standard bidding methods, the standard first is that it must be a high and new area enterprises, the second is under the average price of the offer The first company. Shen Mou find C company's actual controller Liu Mou, said he is more familiar with the contractor, if the later C company won the bid, need to subcontract part of the project to Shen Mou, Liu Mou agreed. Later, Company C won the bid, and the project was completed and accepted in 2024.

However, 2024 Jiangsu Provincial Party Committee inspection team in the inspection process, investigated and prosecuted the crime of embezzlement and bribery of Wang Mou, and its participation in the construction project during his tenure of office for review, the circumstances of this case attracted the attention of the authorities in charge of the case, transferred to the public security organs. The public security organs that there are a number of companies to participate in the bidding, Shen Mou successively with a number of people to collude in advance, seek to designate the company to win the bid, constituting collusion in the bidding crime of the main culprits, transferred to the procuratorate.

Points for defense 

I. Shen is not the subject of bidding activities, not the actual bidder, does not belong to the subject of the crime of collusive bidding 

Article 8 of the Bidding and Tendering Law stipulates that “The bidder is a legal person or other organization that proposes a bidding project and conducts bidding in accordance with the provisions of this Law.” Article 25 stipulates: “the bidder is a legal person or other organization that responds to the bidding and participates in the bidding competition”.

Accordingly, Shen as a natural person, it is not a bidder, only as a bidder A company staff, throughout the performance of duties, so does not meet the crime of collusion bidding subject elements.

Second, shenmou and his company did not private collusion with the bidder, join hands to raise the bid price or lower the bid price, in order to damage the interests of the bidder or other bidders or crowd out other bidders 

based on our country's current laws and regulations, did not prohibit the preliminary design of the company shall not be bidding, and the company A is not the actual design unit, Shenmou is found in the early stage of company B for the preliminary Preliminary design program, after company B and C EPC consortium bidding.

In the bidding process, Shen introduced the bidding agent company, after the bidding agent company in accordance with the normal bidding process for the project bidding, the above Shen Mou to Wang Mou to provide assistance to the behavior, one is out of Wang Mou is completely unfamiliar with the process of the EPC project, Shen Mou hope that the project can be carried out smoothly, and secondly, Shen Mou's behavior does not belong to the prohibited by laws and regulations, in line with the process of the EPC project and the industry practice .

After evaluating the bid, Shen based on its company A low price, after calculating if won the bid is completely below the cost of the company, and pre-design fee of 300,000 yuan of the contractor has not been paid and other reasons for consideration, to find the C company of Liu, communication C company won the bid by the C company to pay 300,000 yuan of the design fee as well as engineering subcontracting and other matters.

Through the above objective facts, Shen and his company did not collude with anyone each other bidding offer, there is no collusion bidding crime objective behavior, and did not harm the interests of the bidder or other bidders.

Third, shen and his company did not collude with the bidder bidding 

in the finalization of the bidding process, shen to li mou communication winning opinion, but on the final which unit can win the bidding shen mou does not have the right to decide. Shen mou and li mou communication is not the criminal law sense of collusion, also does not belong to the scope of the criminal law to combat.

Fourth, Shen's behavior did not damage the bidder, other bidders interests, nor damage to the state, the collective legitimate interests 

Shen only in his company finalized bidding shortlisted, based on his company's low quotes, the company won the bid will be a loss, the design fee of 300,000 yuan of bidders have not been paid for the reasons of exchange of views with Li Mou, Liu Mou, it does not have the bidding quotes through collusion, damage to the bidder or other bidders, as well as the state, the collective, Citizens of the legitimate interests of the subjective intent.

Evaluation of whether the perpetrator constitutes the crime of collusive bidding, the key to see whether his behavior exists to the detriment of other bidders, the bidding party and the national or collective interests. The evidence in the case can prove that Shen and his company did not collude with any bidder project quotation, does not involve damage to the interests of other bidders. The amount of the project is much lower than company C's offer and the tentative cost of the project, it is not possible to cause damage to the national or collective interests, and there is no evidence to prove that the bidder (construction) and its collusion with each other to carry out collusive bidding behavior to the detriment of the national or collective interests, and objectively did not cause the social consequences of the harm, shen mou and the relevant people did not benefit from it.

Processing results 

after the lawyer's effective defense, held a procuratorial hearing, finally the procuratorial organs adopted the lawyer's opinion, Shenmou with “minor circumstances, do not need to be sentenced to imprisonment” to make a decision not to prosecute.

Handling experience 

lawyers in the examination and prosecution stage intervention and read the file, that from the legal point of view of Shen does not constitute a crime, so actively communicate with the procuratorate, and the client to reach the first insist on not signing a plea of guilty and punishment of the litigation strategy, and finally achieved a good result. The success of this case, not only reflects the professional level of King&Capital lawyers, but also effectively safeguard the legitimate rights and interests of private entrepreneurs, but also embodies the procuratorial organs to strictly implement the “less arrests and prudent prosecution” of the judicial concept.