Lawyer's character

"After you transferred the company's funds to your personal account, did you use it?" Fang Yi asked.

"It's not used. I just want to transfer the company's funds to avoid being discovered by creditors who come to collect debts." Zhong Lanying said.

"Are your company's assets independent? What I mean is that when your family usually needs to spend money, or for personal consumption, do you withdraw funds directly from the company's bank account?" Fang Yi asked.

"No, absolutely not. The company's property belongs to the company, and our family's property belongs to our family. They are clearly separated. I understand what you mean, and there is absolutely no mixing. I have been in business for decades. We are still aware of this risk," Zhong Lanying said.

"Yes, I understand." After Fang Yi finished writing down the last note, he put away the pen and paper: "I will go to the court to review the file. I will come back to see you again after the defense plan is finalized."

After leaving the detention center, Fang Yi found a missed call from Liu Shanshan. He called back and Liu Shanshan kindly invited him to a restaurant in the city for dinner and chatted while eating. Fang Yi looked at the time and hurried over.

When Fang Yi entered the hotel, Liu Huashan was frowning and talking to Liu Shanshan.

"Lawyer Fang, how is my mother's condition?" Liu Shanshan asked after everyone ordered.

"Your mother is in good spirits. According to what she said, Lanying Company still owes the material supplier and processor about 820,000 yuan." Fang Yi said.

"If we help my mother pay back this money, will the court consider reducing my mother's sentence by a few years?" Liu Shanshan asked.

"If all the debts are repaid and the creditor's losses are reduced as much as possible, the court will consider it when sentencing. If the creditor can issue a letter of understanding, the effect will be better." Fang Yidao.

"Okay, let's figure this out." Liu Huashan said hurriedly when he heard that paying off the debt would be beneficial to his wife's case.

"I will go to the court to review the case in the afternoon, and I will contact you in a few days to tell you the final defense plan." Fang Yi said.

When Fang Yi returned to the law firm from the next city, it was already after six o'clock in the evening. After returning, while the content of the meeting was still fresh in his mind, Fang Yi began to work overtime while looking through the case files and recalling what Zhong Lanying said during the meeting at the detention center, identifying the differences, analyzing and confirming them.

When handling a case, you cannot believe everything the parties say. What they say is based on their own standpoint and is highly subjective. In fact, many of the contents will be inconsistent with the facts. This requires lawyers to use common sense in life and the facts in the case files. Evidence to verify and compare.

Of course, when the public prosecution agency has no evidence and the party has no evidence, Fang Yi is very willing to believe the party's words and will do his best to help the party. After all, the lawyer's defense is to safeguard the legitimate rights and interests of the client, or to put it more bluntly, to prevent the client from going to jail. Since there is no evidence, the court should not punish the client. Just talking without evidence cannot convict the client. of.

Four days later, Liu Shanshan and Liu Huashan walked into the law firm conference room again. Fang Yi invited them here today. In the past few days, Fang Yi had figured out the context of the entire matter, checked relevant information, and determined the defense plan.

"Lawyer Fang, how's the matter?" Liu Shanshan asked eagerly as soon as Fang Yi entered the conference room.

"I have read the case file materials provided by the public prosecution agency, and my preliminary judgment is that the charges (contract fraud, personal crime) charged by the procuratorate cannot be established. However, your mother's Lanying Company constitutes contract fraud, and your mother Zhong Lanying serves as the actual controller. The person and legal representative will still be held legally responsible." Fang Yidao.

"Lawyer Fang, is this the corporate crime you mentioned before?" Liu Huashan asked.

"Yes, I think this case is a corporate crime, not an individual crime." Fang Yidao.

"Then how many years will my mother be sentenced?" Liu Shanshan asked.

"The specific sentencing depends on how the judge views the case. A few days ago, I went to the procuratorate to communicate with the prosecutor in charge of the case, but the prosecutor said that he was very busy and had to go on a business trip and did not have time to receive the case. He asked me to mail the lawyer's opinion give him.

You see this is my call record, I recorded it. I can play it for you to listen to. "Fang Yi said and was about to play the recording.

"Lawyer Fang, no need, we trust you. Don't doubt the suspects, but don't doubt the employees." Liu Huashan said with a smile.

Fang Yi's recording was not to deal with the prosecutor, but to show the client the work done, so that the client would not feel that the lawyer was paid to do nothing.

"Well, I have already mailed the lawyer's opinion to the prosecutor. But I guess the prosecutor's office will not adopt my opinion, otherwise they would not have this attitude.

By the way, how is the repayment of the debt? "Fang Yi put away his cell phone and said.

"We have raised a lot of money, but there is still a small gap in funds. We should be able to collect it all next week and return it to the material suppliers and processors. We have communicated with the other party before, and the other party said that if they compensate them for all their losses, we can consider issuing a Letter of understanding." Liu Shanshan said.

"Well, the court will start in a week. If possible, try to pay off all the debt before the court starts." Fang Yi said.

As soon as Fang Yi returned to his work station, Ouyang Jie called and asked Fang Yi to help him find a non-litigation lawyer. Through his father's relationship, he obtained a legal due diligence project at a cost of 100,000 yuan in another province.

Fang Yi thought of Lawyer Sima Jun. Lawyer Sima definitely had no professional ability. He just had a poker face that always made people feel that he was thousands of miles away, and he was a little uncomfortable with it. Fang Yi tried to send her a WeChat message, and after a while, Sima Jun wrote back to him: You can pick her up, but you need to meet in person.

Two days after Fang Yi introduced Sima Jun to Ouyang Jie, news came from Ouyang Jie that the cooperation was concluded. Later on the phone, Ouyang Jie asked Fang Yi: "Have Lawyer Sima's facial muscles been injured or undergone surgery?"

Fang Yi was confused and said: "What's wrong?"

"I talked to her for more than an hour, and her face looked like it was wearing a mask. There was no emotional change at all. I didn't know whether she was happy or dissatisfied.

Let me ask weakly, will Lawyer Sima laugh? "Ouyang Jie asked.

Fang Yi didn't expect Ouyang Jie to be so gossipy. yes! Will Lawyer Sima Jun laugh? Fang Yi suddenly remembered that he had seen her smile before. She was pretty!

Soon, Zhong Lanying's case went to trial. The hearing location was: the District Court in the next city, Court No. 18, at 9:30 in the morning.

Sitting on it was a thin male judge wearing glasses. He was hearing the case alone, and the prosecutors were two women. There were about ten people in the auditorium, and the Liu family's father and daughter were sitting among them.

The defendant Zhong Lanying sat in the dock, looking very calm and expressionless as she listened to the prosecutor read out the indictment.

“…The victimized units came to collect the arrears on many occasions. Zhong Lanying refused to pay the victimized units for raw materials and processing fees worth a total of more than 900,000 yuan on the grounds that they had not yet received the payment.

Subsequently, the defendant Zhong Lanying transferred the funds in Lanying's company account to his personal account in batches, or withdrew cash in the name of travel expenses, etc., and used the above methods to transfer company property.

After the incident, Zhong Lanying still caused direct economic losses to the victim unit totaling more than 820,000 yuan after paying part of the payment. Before the trial of this case, Zhong Lanying's family members actively raised 824,000 yuan to compensate the victim's unit for its economic losses.

We believe that the defendant Zhong Lanying is guilty of contract fraud. Taking into account the facts, circumstances, amount of the crime, harmful consequences, attitude of confession and repentance, refund of economic losses, etc., we recommend that the defendant Zhong Lanying be sentenced to ten years in prison. complete. "After saying that, the female prosecutor put down the indictment.

"Defendant Zhong Lanying, did you hear clearly the indictment just read out by the prosecutor? Do you have any objection to the criminal facts and charges charged against you in the indictment?" the male judge asked.

"I have no objection to the facts of the crime, but I have objections to the charges. I have no criminal intent. The contract was signed by the company. I am only the shareholder and actual person in charge of the company. I am willing to bear the corresponding responsibilities." Zhong Lanying said calmly.

After all, she has been in business for so many years. She is older, has seen a lot of people, and has a good mental quality. Although she didn't want to go to jail, the matter had come to this, and sitting in court, she could only accept the punishment of the law, hoping that the court would reduce her sentence by a few years.

"The public prosecutor can question the defendant about the criminal facts charged in the indictment." the male judge said.

"Defendant Zhong Lanying, when the victim unit came to ask for the payment for processing fees and materials that you owed, had Lanying Company already received the payment?" the female prosecutor asked.

"Received." Zhong Lanying said.

"Since the payment has been received, why not pay the victim unit?" the female prosecutor asked.

"Because many units need bridging funds during the period before the Chinese New Year. I want to take advantage of this period to let Lanying Company make more money." Zhong Lanying said.

"How did you conceal Lanying Company's funds?" the female prosecutor asked.

"I transferred Lanying Company's funds to my own account by making false accounts, and withdrew some cash by reimbursing travel expenses," Zhong Lanying said.

"How much are the expenses reimbursed?" the female prosecutor asked.

"Very few, about ten to twenty thousand, I can't remember clearly." Zhong Lanying thought for a while.

"How many shareholders does Lanying Company have? Who is responsible for running the business?" the female prosecutor asked.

"Lanying Company is a one-person limited company. I am the only shareholder. I am the legal representative and general manager. I have the final say in the company." Zhong Lanying said.

"Judge, I'm done asking!" the female prosecutor said.

"The defendant Zhong Lanying's defender will now ask the defendant questions." The male judge said.

"Defendant Zhong Lanying, does your company have a corresponding financial system?" Fang Yi asked.

"Yes, we report taxes to the tax authorities on time every year. We have two financial personnel who usually carry out financial management as required." Zhong Lanying said.

"Do shareholders or executives often borrow money from the company?" Fang Yi asked.

"Lanying Company has a reimbursement and borrowing system. Usually, few executives borrow money from the company. When employees go on business trips, they sometimes withdraw expenses in advance. However, the corresponding invoices will be submitted for financial processing later." Zhong Lanying said.

"After you transferred the funds from Lanying Company to your personal account, was there any payment? Did you use the funds for consumption?" Fang Yi asked.

The cash Zhong Lanying withdrew by reimbursing travel expenses was only 10,000 to 20,000 yuan, which was basically negligible, so Fang Yi focused on the funds in the bank account.

"No, it's not easy for real businesses to do business these days. Apart from paying employees' salaries and paying rent, our company doesn't have much money left. So although this fund went into my personal bank account, I didn't dare to use it. ." Zhong Lanying said.

"You just said you wanted to take advantage of the end of the year to release this money in the name of Lanying Company to make money as bridge funds. Have you actually done this?" Fang Yi asked

"No, because I don't know many of the fund demanders and I don't dare to lend," Zhong Lanying said.

"Why do you lend money in the name of the company?" Fang Yi asked.

"Because the funds belong to the company, and there are still many employees in the company waiting to be paid for the New Year. Later, I will transfer the funds back to the company to do business and operate the company." Zhong Lanying said.

The prosecutor asked questions to prove that Zhong Lanying committed contract fraud. Fang Yi asked questions to tell the judge that a company is a company and an individual is an individual. Zhong Lanying has never used the money from beginning to end. Her purpose of transferring the company's assets was not to embezzle the company's assets, but to benefit the company.

Of course, judging from the current situation, this is indeed the case, but if Zhong Lanying had not been arrested, it is hard to say how she would have arranged the funds. But that's not what Fang Yi has to think about. He has to do things for others when taking money from them. He doesn't want to think about things that haven't happened, and there's no need to delve into them.

…

“The facts of this case have been clearly investigated, the court investigation has ended, and now the court debate has begun. The court debate mainly revolves around the disputed facts that have not been certified by the court and the issue of how the law should be applied based on the facts.

The prosecutor will speak first. "The male judge said.

"After investigation, Lanying Company is a one-person limited liability company. We believe that the defendant Zhong Lanying, as the shareholder and actual controller of Lanying Company, entered into goods sales and processing contracts with the victimized unit in his own unit and accepted the goods delivered by the victimized unit. After receiving a huge amount of goods, for his own benefit, he transferred the property of Lanying Company and concealed it, taking it as his own. His behavior has violated the criminal law and constitutes the crime of contract fraud. Please let the court judge according to law." said the female prosecutor.

"The defendant Zhong Lanying will defend himself below," the male judge said.

"I have no intention of embezzling the company's property. The reason why I transferred the property is for the benefit of the company, not for my personal benefit..." Zhong Lanying held an A4 paper in her hand and spoke in a leisurely and orderly manner.

What she said was what she summarized after Fang Yi met with her for the last time to discuss the defense plan.

"Please give your defense opinion," the male judge said.

"...Although Lanying Company is a one-person limited company, it has a complete governance structure and is financially independent from the actual controller. The public prosecution agency accused Zhong Lanying of committing the crime of contract fraud, but the existing evidence is not enough to prove that Zhong Lanying used money after collecting the payment. Due to his personal expenses, there is insufficient evidence for the public prosecution to accuse Zhong Lanying of committing a personal crime.

The defender believed that the defendant Zhong Lanying’s behavior was entirely for the benefit of the company, consistent with the characteristics of a unit crime, and should be classified as a unit crime. In view of the fact that the defendant and his family actively raised funds to compensate for the losses of the victim unit, the defendant sincerely admitted his guilt and repented, and requested the court to reduce the criminal punishment of the defendant as appropriate.

The defender suggested that the court sentence defendant Zhong Lanying to a suspended sentence. complete. "Fang Yi said.

"The prosecutor can respond to the defense opinions expressed by the defender." The male judge said.

“The public prosecutor believes that Lanying Company is a one-person limited company, and in essence it cannot be effectively distinguished from Zhong Lanying, the company’s shareholder and actual controller, in terms of personality, will, and interests.

As the name suggests, a one-person limited company has only one shareholder. The capital contribution and operation are all done by that shareholder, and the interests also belong to that specific shareholder. There is no independent interest of the company, and the company's property and the shareholder's personal property cannot be distinguished.

Lanying Company is a one-person limited company. One shareholder, Zhong Lanying, controls all the company's business activities. The will of the company and the will of the shareholders cannot be distinguished. The company has no independent will.

This is inconsistent with the characteristics of unit crime subjects stipulated in the Criminal Law. Therefore, crimes committed by a one-person limited company can only be punished as individual crimes and cannot constitute unit crimes. complete! "The female prosecutor said.

"Defendant Zhong Lanying's defender can respond to the prosecutor's opinions." the male judge said.

"Okay. The defender disagrees with the above remarks made by the prosecutor regarding the independence of a one-person limited company.

According to the provisions of the Company Law, a one-person limited liability company refers to a limited liability company in which the shareholder is only one person (natural person or legal person) and the shareholder holds all the capital of the company.

It is entirely possible for a one-person limited company to have an independent legal personality. The only difference between it and a traditional limited liability company is the number of shareholders. The number and identity of shareholders have nothing to do with the establishment of a unit crime. It is entirely possible for a one-person limited company to constitute a unit crime.

The defender does not deny that due to the particularity of a one-person limited company, related transactions between the investor and the company can easily lead to personality confusion. The personality of a one-person limited company is unstable because of the single nature of its shareholder. However, this cannot deny the independence of a one-person limited company.

The defender believes that the following criteria should be used to determine whether a one-person limited company in a specific criminal act has independent personality:

1. Whether it has independent property interests.

The company's property and the investor's property must be separable, and the company's property status must be independent. If the company's property cannot continue to be independent of the shareholders' property and there is confusion between the two, then the company will lose its independent personality, the company's property will become the personal property of the shareholders, and criminal acts committed in the name of the company can only be the personal actions of the shareholders. rather than unit crime.

As far as this case is concerned, judging from the evidence provided by the prosecutor so far, there is no evidence to prove that Zhong Lanying’s personal property has been mixed with Lanying Company. Therefore, the property of Lanying Company is independent.

2. Whether the one-person limited company has independent will.

Whether the will of a one-person limited company is independent is a substantive requirement for judging whether it has the qualifications to be a unit criminal subject. The shareholders and managers of Lanying Company are the same person. Although the will of a one-person limited company comes from the sole shareholder Zhong Lanying, it cannot be confused with the will of a natural person.

The signing of a material supply contract and a processing contract between Lanying Company and the victim unit was a specific act carried out by shareholder Zhong Lanying within the scope of authority stipulated in the law and the company's articles of association for the benefit of the company. Zhong Lanying's behavior should be regarded as the decision-making of Lanying Company, not Zhong Lanying’s personal will.

Of course, it also depends on whether the rights have been abused. If a shareholder of a one-person limited company commits contract fraud in the name of the company in order to repay personal debts, and the benefits belong to the individual, the company becomes a tool for individual crimes and obviously cannot be treated as a unit crime. . In this case, all the benefits derived from the business contract signed by Zhong Lanying belong to the company. Although he transferred funds, it was for the benefit of the company and he did not use the relevant funds personally.

Therefore, although Lanying Company is a one-person limited company, it has independent will.

3. Whether Lanying Company has the legal person governance structure required by the Company Law.

According to legal provisions, a company with independent personality must have a certain location, personnel and organizational structure. When shareholders exercise their powers stipulated in the company law, they must do so in writing and file it with the company.

Based on the available evidence, Lanying Company complies with the provisions of the Company Law and has a complete legal person governance structure.

Zhong Lanying's behavior was carried out in the name of the company, and its purpose was to pursue the company's interests or perform its duties, and should be regarded as Lanying's corporate behavior.

4. Whether Lanying Company operates in accordance with the company's articles of association.

A one-person limited company with independent personality should have its own articles of association and specific purposes. The company's articles of association, purposes, etc. must also comply with legal regulations.

Lanying Company is a limited company registered in accordance with the law with the industrial and commercial department, and its articles of association comply with the provisions of the Company Law. Judging from the evidence and materials provided by the public prosecutor so far, there is no illegality in Lanying Company's articles of association. Lanying Company has been operating in accordance with the company's articles of association.

5. Whether Lanying Company was established in accordance with legal conditions and procedures.

First of all, Lanying Company is an enterprise established in accordance with the law and registered with the industrial and commercial administration department. It has obtained legal person status in accordance with the law.

Secondly, Lanying Company complies with the minimum registered capital stipulated in the Company Law, and has paid in full the registered capital in one go. (For companies registered after March 2014, the registered capital is a subscription system, and for companies registered before, the registered capital is a paid-in system)

In this case, Lanying Company was registered and established in accordance with the law, and the defendant Zhong Lanying was the sole shareholder, legal representative and actual controller of the company.

After the establishment of Lanying Company, it operated in accordance with the profit-making purpose stipulated in the articles of association. The company was relatively independent in its operations and had the governance structure required by the Company Law. The defendant Zhong Lanying, as the legal representative, committed contract fraud for the benefit of the company and should be regarded as The independent will of the company.

Lanying Company has an independent financial status that can be clearly distinguished from Zhong Lanying's personal property. Although it committed contract fraud, the existing evidence is insufficient to prove that Zhong Lanying used the payment for his personal expenses after collecting the payment.

In summary, Lanying Company has an independent legal personality and the ability to bear criminal liability. As the legal representative of the company, Zhong Lanying committed contract fraud for the benefit of the company, which should be regarded as the behavior of Lanying Company, so this case should constitute a unit crime. As the actual controller of Lanying Company, Zhong Lanying should only bear corresponding criminal liability. complete. "Fang Yi said.

Fang Yi's long speech made the two prosecutors opposite him frown, and the judge also took notes from time to time. The Liu family's father and daughter who were listening in were confused. Although their brains were a bit weak, they felt that Fang Yi could live in vain.

The most uncomfortable thing was the clerk. The clerk who had always been proud of his shorthand was dumbfounded this time. Fang Yi spoke a little too fast. The clerk kept tapping the keyboard with his hands but still couldn't keep up. He could only sit down depressed. Where to listen? Wait for the adjournment to ask Fang Yi for his defense statement.

…