Recently, Lv Yan led the team members Li Wei, Wang Zhiqiang, Liu Xingmeng lawyers commissioned as Jin Moumou defense, the case is accurate characterization and issued a defense, and the prosecutor communicated with the prosecutor for many times after the procuratorate adopted the defense, Jin Moumou made a decision not to prosecute.
Basic case
1. project start-up phase (May-July 2019)
Liu Moumou learned during the construction of a phase I project that the phase II project was about to start, and proposed to the owner, Fu Moumou, the chairman of XX Group, his willingness to participate. Fu Moumou told the project to adopt the “investment, financing and construction (EPC + F)” mode, and suggested that he cooperate with Wang Moumou. Wang moumou is “a project” design, and a provincial construction close relationship, Liu moumou, Wang moumou and pay a consensus on cooperation: Liu moumou docking pay moumou access to bidding information, Wang moumou to promote the provincial construction bidding, winning the bidding according to the ratio of 4:4:2 allocation of revenue.
Jin Moumou (principal) is the executive vice president of a Beijing enterprise chamber of commerce, in July 2019 to participate in the relevant investment promotion activities, learned that the second phase of the project needs to pre-financing of 500 million yuan, post-financing of 2.8 billion yuan, the government hopes that the chamber of commerce linkage financing to support the construction of the project. Jin Moumou is the labor subcontracting of the first phase of the project, the owner owes it more than 80 million yuan, combined with making up for the loss, the government investment promotion and invitations, he proceeded to participate in the project bidding.
2. Bid preparation stage (October-December 2019)
Jin Moumou and Xu Moumou prepared for bidding by inspecting enterprises, obtaining letters of intent for bank loans, contacting Wang Moumou (design institute) for cooperation, etc., and Wang Moumou pretended to cooperate with Jin Moumou. After the project public listing bidding, Wang Moumou found Jin Moumou hands of the loan intention is a provincial construction industry collusion bidding party can not obtain the documents (the document is the necessary documents to win the bid), maliciously refused to provide the design drawings, and commitment to Jin Moumou should be the amount of work as a condition for the exchange of the loan intention, Jin Moumou repeatedly complained about the fruitless, in order to avoid the early investment in vain was forced to agree to agree to the agreement to win the bidding, and Li, Zhuang according to the 4:4:. 2 proportion of the distribution of proceeds. After the Jin Moumou enterprise can not participate in the bidding for reasons such as failure to pass the meeting. Liu moumou arranged two enterprises to accompany the bidding, Jin moumou did not participate, and finally a provincial construction workers won the bid.
3. Benefit distribution stage after winning the bid
After the provincial construction workers won the bid, Liu Moumou, Wang Moumou will be a plot of 770 million project according to the EPC model subcontracting to Jin Moumou, Xu Moumou, the two and subcontracted to Weng Moumou name supply chain company, the parties signed a subcontract with a provincial construction workers sub-contracting and sub-contracts.
The public security organs believe that Jin Moumou constitutes the crime of bid-rigging, transferred to the procuratorate.
Defense Points
Jinmoumou's behavior does not meet the elements of the crime of collusive bidding: 1, from the object of the crime, its behavior did not violate the bidding market order, pre-bidding preparation, late distribution of benefits belong to the normal commercial category; 2, from the objective aspects of the crime, Jinmoumou did not participate in the acquisition of insider information, collusive quotes, arrangements for accompanying the bidding of the core collusive behavior, the decision to hand over the loan opinion is a commercial decision rather than the crime of implementation Behavior; 3, from the subject of the crime, Jin Moumou neither bidder, nor with others to form a joint criminal intent, does not meet the subjective elements of the crime of collusive bidding; 4, from the subjective aspect of the crime, Jin Moumou no collusive bidding intentionally, Liu Moumou, Wang Moumou lack of knowledge of collusion, all of its behavior around the legitimate profit.
The logic of the allegation of joint crime has the following errors:
1, the “business cooperation in the distribution of benefits” is equivalent to “common crime”, ignoring the common crime must have “criminal intent contact” and "behavioral The core elements of “criminal intent liaison” and “concerted behavior”; 2, “after the fact profit” inverted “ex ante participation in the crime”, confusing the boundaries of the distribution of civil benefits and the proceeds of criminal offenses; 3, can not ignore the Jin Moumou see others collusion bidding criminal behavior, his from the beginning to the end of the report. The report, from the beginning to the end of its did not collusion bidding intention, lack of direct evidence of subjective intent.
In this case, Jinmoumou's behavior not only does not constitute a crime, not to mention any criminal law in the sense of “criminal circumstances”, I implore you to Jinmoumou according to law to make a decision not to prosecute.
Result
After the lawyer effective defense, the procuratorial authorities believe that the existing evidence can not prove that the non-prosecution of JinMouMou subjectively with LiuMouMou, WangMouMou have collusion bidding intention, objectively implemented on LiuMouMou, WangMouMou collusion bidding to help and cooperate with the behavior. Therefore, the whole case found the criminal facts are unclear, insufficient evidence, does not meet the prosecution conditions. In accordance with the “People's Republic of China criminal procedure law” article 175, paragraph 4, “people's procuratorate rules of criminal procedure” article 367, paragraph 2, decided to Jin Moumou not to prosecute.
