Lawyer's character

"Appellant Cao Yueshan, do you have any objection to the facts and charges found in the first-instance judgment?" the presiding judge asked.

“I have objections to the facts and charges found in the first-instance judgment.

The first-instance judgment held that for the purpose of illegal possession and without the ability to perform the contract, I concealed the facts, signed a construction agreement for a new residential real estate project with Lianda Company in the name of Red Sea Company, and defrauded three million yuan of illegal possession through the agreement, which constituted Contract fraud. I don't agree with this.

When I signed the agreement with Mr. Chen of Lianda Company on behalf of Red Sea Company, the project materials submitted to the other party were all true and there was no fraud. In addition, I used all the 3 million yuan deposit paid by Lianda Company to Red Sea on the project. There was no illegal possession, so I think the facts determined in the first-instance judgment were unclear. "

Cao Yueshan knew that this was his last chance. Once the charges were confirmed, he would face fifteen years in prison, so he took this trial very seriously and made a lot of preparations.

"The prosecutor will now question the appellant on the facts found in the first-instance judgment." The presiding judge's emotionless voice echoed over the empty courtroom, making people feel a bit chilly.

"Appellant, when you signed the agreement with Lianda Company, did you have the ability to perform the contract?" the female prosecutor asked sternly.

"The project had just started and I was raising funds..." Cao Yueshan was interrupted by the prosecutor in mid-sentence: "Please answer directly whether you have the ability to perform the contract."

“The project was being financed at the time, and I had already negotiated with several financial institutions,” Cao Yueshan said.

"That means you no longer have the ability to perform the contract when you signed the contract, right?" the female prosecutor said.

"Yes, there was insufficient funds at the time." Cao Yueshan's voice softened.

"According to the agreement between Red Sea Company and Gaojiazhuang Village Committee, Red Sea Company must pay 50 million start-up capital to Gaojiazhuang Village Committee. Will Red Sea Company pay?" the female inspector asked coldly.

"No payment." Cao Yueshan said.

"Are the approval procedures for new residential projects complete?" the female inspector asked.

"No, we are applying for approval." Cao Yueshan said.

"Presiding judge, I'm done asking questions." The female prosecutor said with a serious face.

"The appellant Cao Yueshan's defender asked a question," the presiding judge said.

"Appellant, after Lianda Company paid a deposit of three million, what was the money used on?" Fang Yi asked.

"The two million construction deposit of the urban construction subsidiary was returned, and the remaining one million was used for the operation of the Red Sea Company." Cao Yueshan said.

"During this period, have your wages and bonuses been increased?" Fang Yi asked.

"No, even though I am the boss of Red Sea Company, my salary is not high. In order to pay employees and promote the operation of new residential projects, I did not receive salary for several months. It is recorded in the company's financial accounts. , now the company still owes me tens of thousands of yuan in wages." Cao Yueshan said.

"Before you signed the contract with Lianda Company, did Lianda Company send people to the site to see the project situation? Did Lianda Company send professionals to conduct on-site due diligence on the project?" Fang Yi then asked.

"No, after Honghai signed a construction contract with its urban construction subsidiary, it was delayed in starting work due to financial problems. After we both terminated the construction contract, I was eager to find a construction company, so I offered better conditions and negotiated with four construction companies. Afterwards, Chen Zheng from Lianda Company thought the project was good and signed a construction agreement with Red Sea Company after only looking at the project renderings.

Lianda Company did not send anyone to the site to check the actual situation. "Cao Yueshan said.

"Has the other party mentioned going to the site to check the situation, or sending someone to the owner to understand the situation?" Fang Yi asked.

"No, at that time Chen signed the contract with Lianda Company and Red Sea Company just because he was optimistic about the project. I showed him the agreement we had with Gaojiazhuang at that time. He had no objection." Cao Yueshan said.

"Presiding judge, I'm done asking." Fang Yi said. His purpose was clearly to let the collegial court know through interrogation that Cao Yueshan had not embezzled the security deposit.

"The following is the presentation and cross-examination of evidence. Do the prosecutors, defenders, and appellant have any new evidence that needs to be submitted?" the presiding judge asked.

"No." Sanfang replied.

"The court investigation is over, and the court debate is now underway. Before the debate, the court draws the attention of both the prosecution and the defense. The debate should mainly focus on determining the crime, sentencing and other controversial issues. Let the appellant and defender speak first. Appellant Cao Yueshan You can defend yourself," the presiding judge said.

“My defense opinion is as follows:

First, the court found that the facts were unclear. The three million yuan deposit paid by Lianda Company was not misappropriated by me, but was used for the project and company operations. I did not occupy a single penny.

Second, the construction agreement signed by Red Sea Company and Lianda Company is the true intention of both parties. I have never deceived Lianda Company.

Third, the new residential project is real. Although the Red Sea Company has problems with its funds, the agreement it signed with the village committee is still valid and has not been terminated.

Because I think the facts found in the first instance were unclear, the evidence was insufficient, and I was not guilty of contract fraud. complete. "Cao Yueshan's self-defense opinion was written by Fang Yi after Fang Yi helped him sort out the case facts during the meeting, and was prompted by Fang Yi.

"Now the defender of the appellant Cao Yueshan will speak." the presiding judge said.

“The defender believes that the appellant is not guilty of contract fraud.

First, the new residential project in Gaojiazhuang Village really exists, and the appellant really wants to build the project subjectively. Red Sea Company signed an agreement of intent with the Gaojiazhuang Village Committee, paid a deposit of three million in advance, rented villagers' land to build temporary buildings, and created conditions for the performance of the contract. So far, the Gaojiazhuang Village Committee has not The agreement with Red Sea Company was terminated. It can be seen that just because Red Sea Company is short of funds and the project warrant is under review and approval, the defendant's defense cannot be completely denied.

Second, the appellant went to Beijing to raise funds, not to avoid debts. Taking a step back, even though he is suspected of avoiding debts and his behavior is somewhat fraudulent, the Red Sea Company still made a certain initial investment in the new residential project and built some temporary buildings. Although the construction has not started, the The company still has a large amount of property rights. In addition, Gaojiazhuang Village had previously received a deposit of 3 million yuan from Red Sea Company. Lianda Company can completely recover its losses through civil litigation.

Third, the procedures for new residential projects are incomplete. However, in the current real estate development industry, irregularities such as "approval while working", "get on the bus first and buy the ticket later", and misappropriation of deposits are relatively common. Lianda Company is a construction company and often works with In cooperating with real estate developers, it cannot be ruled out that Lianda Company is well aware of this.

Fourth, the appellant has been financing, and it is very common for the real estate industry to change financing on the side. There is no developer that uses all its own funds to develop real estate. Therefore, subjectively speaking, the appellant hopes that the construction contract can be fulfilled. , and make profits from developing the project.

As for the situation of the project not being approved, it is a commercial risk for Lianda Company. As a professional construction unit, Lianda Company should have a duty of care.

Fifth, although the appellant misappropriated the deposit paid by Lianda Company, it mainly focused on project expenses and did not squander it. The purpose of illegal possession was unclear.

complete. "Fang Yi said.