Recently, Mr. Weng Xiaoping and Ms. Wang Xiaoli of Beijing King&Capital Law Firm (hereinafter referred to as “our team” or “the team”) represented a shareholder of a group company in a case of alleged misappropriation of functions. On the 34th day of the client's detention, the family chose to re-appoint Mr. Weng Xiaoping and Mr. Wang Xiaoli to defend the case. After the team's efforts, the client regained his freedom at ten o'clock in the evening on the 37th day of detention.

There are three core difficulties involved in this case:

First, the group has opened a number of companies all over the country and even in Australia, with a wide range of civil aspects of the lawsuit, chaotic management of the shareholding structure, and complex internal and external disputes among the personnel, so how to clarify the boundaries between civil disputes and criminal offenses?

Secondly, as a shareholder of the group, how to analyze whether the person concerned has the intention of illegal occupation and the status of the position involved in the so-called act of occupying the position?

Thirdly, how can the company involved, as a leading enterprise in the health care industry, achieve the greatest balance of the interests of all parties, including the local economy, the company's enterprises and the different shareholders, in terms of the protection of the private economy?

Accepting the commission on the 34th day of the detainee's criminal detention meant that there were only three days left in the “golden 37-day rescue period” from the time the public security authorities reported the arrest to the procuratorate's approval of the arrest, and the team raced to meet with the parties, sort out the cases, retrieve the cases, write the documents, and communicate with the case officers, and the race against time became the biggest challenge; the family's residence and the party were in two different places outside of Beijing and North and South China. The family residence and the parties were outside of Beijing in the north and south, “one day, one province” business trip at the same time is also a huge test of the physical strength of lawyers.

The lawyer team comprehensive research and judgment that, this case is derived from the civil dispute between the group shareholders, essentially civil disputes, the group shareholders at the same time there are a number of shareholders' right to know, the resolution is invalid case is being handled by the shareholders of the internal disputes derived from the case, should not be treated as a crime. Before and after the incident, the party concerned is no longer responsible for specific production management business, there is no available job convenience, the party concerned does not have the intention to commit a crime and the purpose of illegal possession, the facts alleged by the investigating authorities are unclear and the evidence is insufficient.

In response to the above viewpoints, my team also cited the case of Criminal Trial Reference for reasoning. In the end, a lot of defense work was completed within the extremely limited time, especially with the contractor prosecutor together with overtime communication until more than 10:00 p.m., for the client to obtain the decision of non-approval of arrest.

Relevant basis:

1

Article 7 of the Opinions of the Supreme People's Procuratorate on Giving Full Play to Procuratorial Functions to Safeguard and Promote the Healthy Development of the Non-Publicly Owned Economy in accordance with the Law, the procuratorial authorities shall pay attention to the following in handling cases: strictly distinguishing between the boundaries of economic disputes and economic crimes, and the boundaries between lawful business incomes and the proceeds of illegal and criminal acts. “For cases where the legal and policy boundaries are unclear, and where it is not clear whether the crime is a crime or not a crime, or whether the crime is a mistake or not, the case should be handled carefully and properly, and research and analysis should be strengthened, and attention should be paid to listening to the opinions of the industry supervisors and regulators, and resolutely preventing general violations of law and discipline, mistakes in work, and even reforms and innovations from being regarded as crimes, and making sure that the perpetrators of the crimes are punished according to the law, that entrepreneurs are supported, and that the failures are salvaged, and that mistakes are educated, and ensuring that the quality of the handling of the cases is high and effect.”

2

Article 11 of the Opinions of the Supreme People's Procuratorate on Giving Full Play to Procuratorial Functions to Serve and Guarantee the Six Stabilizations and Six Guarantees states that procuratorial organs should “focus on correcting prominent problems, such as cases involving private enterprises that should not have been established but were not and should not have been established. The procuratorial organs shall “focus on correcting cases involving private enterprises that should not be instituted but are not instituted and cases that should be instituted but are not instituted. Firmly prevent and rectify all kinds of illegal behaviors such as meddling in civil and economic disputes in the name of criminal cases, focusing on supervising and rectifying the illegal filing of cases to recover money for debt collection for interested parties, intervening in economic disputes that are under trial or have already been adjudicated by the court, and setting up a contractual dispute as a fraud, a civil infringement as a job-related misappropriation, an industry borrowing as an embezzlement, a sale and purchase dispute as a forced transaction, and a normal business operation as an illegal business operation, etc.”. etc.”

3

Criminal Trial Reference No. 235 Yu Qingwei Occupation of Duty: The crime of occupation of duty requires the subject to have the convenience of duty and to use the convenience of duty to illegally occupy the property of the unit, which cannot be judged solely on the basis of job status, but rather should be examined substantively in terms of the content of the duty.

4

Criminal Trial Reference No. 1610, The Case of Gou Mou, Sued for Occupation of Functions and Passive Bribery of Non-State Employees: The determination of the purpose of unlawful occupation should be based on a comprehensive review of whether the perpetrator concealed it from the unit.