"The name of the merger of enterprises is actually cheating the property"-Cheng Qing contract fraud case
A merger contract is characterized by the acquisition by the merging party of the assets of the merged party and the right to dispose of them. However, this disposal is commensurate with the merging party's actual fulfillment of the obligations set forth in the merger contract. If the merging party adopts deceptive means to sign the merger contract to obtain the assets of the merged party, does not fulfill the obligations stipulated in the merger contract, does not use the merged assets for production and business operation activities, or uses a small portion of fulfilling the obligations stipulated in the merger contract and using a small portion of merged assets for production and business operation as a bait, and then fraudulently obtains the majority of merged assets and then realizes the assets for its own use, it is the purpose of unlawful appropriation, using economic Contract fraud of the property of the merged enterprise, the amount is large, constitutes the crime of contract fraud.
Public Prosecution: Chongqing Municipal People's Procuratorate Branch No. 1
Defendant: Cheng Qing
Case: Contract Fraud
First Trial No.: (2001) Yuyi Zhongzhong Criminal No. 326
Second Trial No.: (2001) Yu Gaofa Criminal Terminal No. 399
One: the basic facts of the case
The defendant, who used to call himself Cheng Qing, was convicted of fraudulent use of economic contracts. Defendant Cheng Qing, once known as "Cheng Biao", male, born on July 20, 1962 in Chongqing, Han nationality, university education, the former chairman of Xinfeng Industrial Co. Ltd., living in Chongqing City, Yuzhong District, No. 16, Shan Guo Lane, Duchimen. Suspected of committing contract fraud on July 30, 2000 was criminally detained, arrested on September 6 of the same year.
In 1992, the defendant Cheng Qing in the group to Southeast Asia during the tour, their own group to Sierra Leone **** and the country, in the country to obtain an identity card, but did not reside in the country, and did not apply for the cancellation of Chinese citizenship. in November 1994, Cheng Qing with the identity card of Sierra Leonean citizens in Singapore **** and the country with others to set up a partnership with the new Singapore peak international limited, the registered capital of 100,000 Singapore dollars, the registered capital of 100,000 Singapore dollars. The registered capital was 100,000 Singapore dollars, and Cheng Qing was one of the two shareholders and a director of the company. The company in China did not in accordance with the "Chinese people's *** and the State Company Law" for the relevant provisions of the company registration procedures, and did not set up branches in China, does not have the legal personality of Chinese enterprises. 1996 August, Cheng Qing in the name of the Singapore New Peak International Ltd. and the People's Government of Chongqing Municipality, Yuzhong District, the people's office of the Nankimen Street, the Nankimen Industrial Company, the enterprises owned by the Chongqing Municipality, the Lixin printing carton factory reached an agreement between the two sides in the Chongqing Municipality. Carton Factory reached the two sides in Chongqing *** with the investment in the establishment of Sino-foreign joint venture enterprise Chongqing Meixin Shoes Company agreement, the agreement provides that: the joint venture company's total investment of RMB 2 million yuan, the registered capital of RMB 1.8 million yuan, the foreign party, Singapore New Peak International Ltd. with machinery and cash *** total of RMB 1.35 million yuan of the equivalent value of foreign exchange investment, accounting for 75% of the company's investment, the funds in the joint venture company's registered business license. Funds in the joint venture company registered business license issued within two months of the date of in place; Chinese joint venture Chongqing Lixin Printing Carton Factory to have the right to assess the value of the unit equivalent of RMB 450,000 yuan of its own real estate investment, accounting for 25% of the company's investment. Later, the defendant Cheng Qing with a 700,000 yuan of blank transfer cheques bank statement of account and a forged 600,000 yuan of bank transfer cheques statement of account, as a foreign partner in place of all the funds in the vouchers, fraudulent Chongqing Meixin footwear company's registration and the People's Republic of China and the State Enterprise Legal Person Business License. But so far, Cheng Qing and his Singapore New Peak International Limited have not made any investment in Chongqing Meixin Shoes Company.
In March 1997, the defendant Cheng Qing cheated the registration of Chongqing Meixin Shoes Company, in order to accept the full staff of employees, bear all the debts and liabilities, on-time payment of wages and social security contributions and other commitments as a condition, to take the signing of the agreement, with the Chongqing Meixin Shoes Company's name and merged with the Chongqing Lixin Printing Carton Factory. After the merger, the defendant Cheng Qing did not according to the provisions of the agreement to assume the debt of the factory, but through part of the plant as a mortgage, sell part of the plant, etc., *** gained 2,345,600 yuan, in addition to the payment of the factory workers wages, medical expenses, return a small amount of loans, pay social security contributions, etc., *** counted 828,900 yuan spent, Cheng Qing actually gained 1,516,700 yuan of stolen money.
In May 1998, the defendant Cheng Qing to full acceptance of the staff, bear all debts and liabilities, on-time payment of wages and social security contributions and other commitments as a condition, to take the signing of the merger agreement, with the name of Chongqing Meixin Shoes merged with Chongqing Plastic Nineteen Factory. After the merger, Cheng Qing did not use the property for production and business activities, but rather, by mortgaging part of the plant, selling part of the plant, etc., **** gained 390,100 yuan. In addition to the expenditure of the factory staff wages and payment of staff social pension insurance 20.92 million yuan, Cheng Qing was stolen 18.09 million yuan.
December 1997, the defendant Cheng Qing using asset reorganization, revitalization of assets, *** with the production of TPR new shoe materials, full acceptance of the staff, assume all debts and liabilities, on-time payment of wages and social insurance payments, assume all debts and liabilities of the enterprise as a condition of the commitment to sign a merger agreement, in the name of the Singapore New Peak International Ltd. and the Chongqing Changzheng Ltd. signed a merger agreement with Chongqing Changzheng Stamping Factory (a collective enterprise) and carried out the merger of the factory. After the merger, the defendant Cheng Qing neither the plant's property for production and business activities, nor according to the provisions of the agreement to assume all the plant's debt, but to take the plant's housing mortgage, selling the plant's equipment, leasing the facade and other ways to obtain 1.4456 million yuan. In addition to pay the factory workers' wages 22.29 million yuan, Cheng Qing *** gained 1.2227 million yuan.
January 1998, the defendant Cheng Qing in the name of Singapore New Peak International Ltd. to the Chongqing Foreign Economic and Trade Commission and the Chongqing Municipal Administration for Industry and Commerce to apply for the establishment of a wholly foreign-owned enterprises in Chongqing with a registered capital of 3 million U.S. dollars - New Peak Industries? Ltd. In April of the same year, Cheng Qing will be an amount of 600 U.S. dollars in Singapore? U.S. Citibank special transfer check back to change to 3 million U.S. dollars, as the investment money has been in place as evidence, cheated the new peak industry? Chongqing Co., Ltd. registration and the Chinese people's **** and state enterprise legal person business license. In August of the same year, the defendant Cheng Qing in only to the new peak industry? Chongqing Co., Ltd. invested only 600 U.S. dollars, knowing that they do not have the ability to actually perform the case, to receive all the employees of the enterprise, to assume all debts and liabilities, to receive all the property of the enterprise, the timely payment of wages to employees, social pension insurance contributions and other commitments as a condition for the new peak industry? Ltd. to merge Chongqing Southwest Garment Factory. After the merger, Cheng Qing, through the sale of the Southwest Garment Factory's 9 storefronts located at No. 166 Shi Xiaolu, Jiulongpo District, Chongqing City, sold some of the factory's raw materials, rented out storefronts, and collected pensions paid by the Social Security Bureau to the factory's employees, etc., and *** gained 1,832,400 yuan. In addition to pay the factory workers' pensions, wages, medical expenses, decorating the office and other costs, the defendant Cheng Qing **** stolen money 6.71 million yuan.
December 1998, Cheng Qing absconded with the stolen money, changed his name to hide, and then on July 30, 2000 attempted to exit from Shenzhen Luohu port was captured.
Second, the prosecution and defense
Chongqing Municipal People's Procuratorate Branch No. 1 to the defendant Cheng Qing committed contract fraud to the Chongqing Municipal Intermediate People's Court.
The defendant Cheng Qing and his defense argued: the defendant Cheng Qing merger of enterprises is the company's normal business activities, failure to fulfill the merger agreement is an economic dispute with the enterprise employees, no illegal possession of purpose, does not constitute fraud.
Third, the referee
Chongqing First Intermediate People's Court held that: the defendant Cheng Qing through the forgery, alteration of financial instruments, false capital contribution and other criminal means, to obtain the Chongqing Meixin Shoes Company and Xinfeng Industry? Chongqing Limited enterprise legal person registration and received the People's Republic of China *** and the State enterprise legal person license. Ltd. did not apply for enterprise registration in the People's Republic of China, does not have the legal personality of the People's Republic of China, and cannot engage in business activities in the name of the company in China. Defendant Cheng Qing knew that he did not have any ability to perform, in order to illegally occupy the property of the collective economic organization, borrowing the illegally obtained business license Chongqing Meixin Shoes Company, Xinfeng Industry? Ltd. and Singapore Xinfeng International Co., Ltd. which could not engage in business activities within the territory of our country, signed a merger agreement by means of deceptive methods such as asset reorganization, **** with the production of new type of TPR footwear, export of garments, and acceptance of employees in full, payment of employees' salaries on time, payment of employees' social pension insurance, etc., and unlawfully merged Chongqing Lixin Printing and Carton Factory, Chongqing Plastic Nineteen Factory, and so on. Chongqing Lixin Printing Carton Factory, Chongqing Plastic Nineteenth Factory and other collective enterprises. After the merger, in order to achieve the purpose of possessing the property of the enterprises, the defendant Cheng Qing neither used the property of these enterprises for production and operation activities, nor assumed the debts and liabilities of these enterprises according to the provisions of the agreement, but through selling, mortgaging, renting out the effective assets of the merged enterprises and receiving other incomes of the merged enterprises, etc., to obtain the stolen money*** amounting to 2,980,740,000 yuan, and his behavior constituted a crime of contractual fraud and the amount was particularly huge, which shall be severely punished according to law. The amount was particularly large and should be severely punished in accordance with the law. In accordance with Article 224, paragraph 5, and Article 57, paragraph 1, of the Criminal Law of the People's Republic of China, the Criminal Law of the People's Republic of China provides that a person who commits contract fraud shall be punished severely. Article 224(5), Article 57(1) and Article 59(1) of the Criminal Law of the People's Republic of China, the following sentence was passed on July 31, 2001:
1. Defendant Cheng Qing was sentenced to life imprisonment, deprivation of political rights for life and confiscation of all personal property for the crime of contract fraud;
2. 2. 2.98 million yuan ($747,400) of the proceeds of crime of Defendant Cheng Qing shall continue to be recovered.
After the verdict of the first trial was announced, Cheng Qing appealed on the grounds that he was a citizen of Sierra Leone*** and the country, and that his behavior of disposing of the property of the merged enterprise was a normal business activity of the company, and that the economic dispute with the employees of the merged enterprise did not constitute fraud.
Chongqing Municipal Higher People's Court held that: the appellant Cheng Qing to illegal possession for the purpose of using the means of signing a merger contract, fraudulent acquisition of collective enterprise property, the amount is particularly large, his behavior has constituted the crime of contract fraud, the amount of the crime is particularly large, the interests of the state and the people caused significant losses, shall be severely punished in accordance with the law. The original judgment was correct in its conviction and application of the law, the sentence was appropriate, and the trial procedure was lawful. In accordance with article 189, paragraph 1, of the Criminal Procedure Law of the People's Republic of China, the original sentence was passed in 2001. I of the Criminal Procedure Law of the People's Republic of China, it was decided on November 23, 2001, that the appeal should be dismissed and the original sentence upheld.
Four, the main thrust of the decision
A with the purpose of illegal possession, the use of the means of signing a merger contract, fraudulent acquisition of property of the merged enterprise in a larger amount, constitutes the crime of contract fraud.Contract is the agreement between the parties on the relationship between civil rights and obligations. In the socialist market economy, the contract is increasingly widely used in a variety of commercial transaction activities, become a reflection of commercial subject autonomy and regulation of the rights and obligations of the two sides of the important means. However, in commercial transactions, some criminals often use economic contracts to carry out fraud and other activities, seriously disrupting the normal market economic order. Article 224 of the criminal law clearly stipulates the purpose of illegal possession, in the process of signing and fulfilling the contract to cheat the other party's property in five cases: 1 to fictitious units or fraudulent use of the name of another person to sign a contract; 2 to forged, altered, canceled bills or other false proof of property rights as a guarantee; 3 without the actual ability to perform, in order to perform a small amount of the contract or part of the performance of the contract first, to cheat the other party to continue to sign and perform the contract. The other party to continue to sign and perform the contract; 4 to receive the other party to pay the goods, payments, advances or secured property and then fled; 5 to other methods of fraudulently obtaining the property of the other party. Behavior of one of the above five circumstances, cheating the other party's property in a larger amount, constitutes the crime of contract fraud. The defendant in this case Cheng Qing use signing "merger" agreement to cheat the property of the merged enterprise, belongs to the criminal law, article 224 of the "other methods of cheating the other party's property," the situation.
The business activity of "merging enterprises" in modern society requires that the merging company should have a certain economic strength, and should be able to provide the necessary financial support to the merging company. Enterprises should have a certain economic strength, good business conditions and the necessary business reputation, that is, the ability to fulfill the contract and good faith. At the same time, should also be specific implementation of the contract, in accordance with the merger agreement to resettle the merged enterprise employees, organization of production, repayment of the debt of the merged enterprise. In this case, from the ability of Cheng Qing to fulfill the contract, he initiated the establishment of Chongqing Meixin Shoes Company, Xinfeng Industry Co. Ltd. were all "shell" companies set up by way of false capital contribution, without any economic strength and market reputation, and did not have the conditions to merge the enterprises. Cheng Qing is simply unconditional to fulfill the contractual obligations of "reorganization of assets, *** with the production of TPR new shoe materials, export of clothing and full acceptance of employees, on-time payment of wages, payment of employee social security contributions". From the defendant Cheng Qing to perform the specific behavior of the contract, in the price of zero to the implementation of the "merger" of the above enterprises, did not actively organize the company's production and resettlement of the employees of the merged enterprise employment, but the malicious disposal of the property of the merged enterprise: on the sale of machinery and equipment, raw materials, real estate and so on, immediately sold, for the bad sale of property to the In addition to a small amount of the proceeds, which were used to pay employees' salaries, medical fees and pension contributions, most of them were transferred privately and appropriated for their own use, and then absconded with the money and changed their names in an attempt to flee the country. His behavior fully proved that he subjectively did not have any sincerity in fulfilling his obligations under the merger agreement. Therefore, it can be concluded that he had the purpose of illegal possession.
It should be noted that, in the actual economic life, due to the merger of enterprises and the existence of a large number of economic disputes, how to correctly distinguish between the merger of enterprises and economic disputes in the name of the merger of the boundaries of the fraudulent enterprise property? The key lies in the correct determination of whether the defendant has the purpose of illegal possession. According to the relevant judicial interpretations and judicial practice experience, determine whether the perpetrator has the purpose of illegal occupation, should be combined with the signing of the contract with or without the ability to perform, signing and performance of the contract in the process of deception, with or without the actual performance of the act, after the breach of contract is willing to assume responsibility for as well as failure to perform the contract of the specific reasons for the comprehensive judgment. A merger contract is characterized by the acquisition of assets by the merging parties and the right to dispose of them. However, such disposal is commensurate with the merging parties' actual performance of their obligations under the merger contract. If the merging parties fail to fulfill the agreement in whole or in part due to the fault of one or both parties or force majeure in the performance of the contract, and there is no evidence to prove that the merging party has the subjective intention of illegal possession, the merged party's property loss due to the disposition of the merged property, although the act of the merged party's property, it still belongs to the scope of economic disputes. However, if the merging party, after signing the merger contract by deceptive means to acquire the assets of the merged party, does not fulfill the obligations stipulated in the merger contract, does not use the merged assets for production and operation activities, or uses a small portion of the fulfillment of the obligations stipulated in the merger contract or the use of a small portion of the merged assets for production and operation as a bait to fraudulently realize the majority of the merged assets and take them for its own use, then it is a case of illegal appropriation for the purpose of using the Economic contract fraud of the property of the merged enterprise. In this case, the defendant Cheng Qing did not have the material ability to fulfill the merger agreement, business ability and market credit, cheated the assets of the merged party by deception, and then realized and disposed of them, and absconded with the money, which fully proved that he had the purpose of unlawfully appropriating the property of the enterprise in the way of "merging the enterprise", and conformed to the constitutive elements of the crime of contract fraud.
The Chongqing Municipal People's Court convicted and punished him for the crime of contract fraud, which was appropriate.
II If the crime is committed in the name of a unit, and the illegal proceeds are obtained by the individual who commits the crime, the individual shall be punished for the crime.
The defendant Cheng Qing implemented the establishment of the company, signed a merger agreement with the merged enterprise, the disposal of the property of the merged enterprise, although all in the name of Singapore Xinfeng International Limited, Chongqing Meixin Shoes Company, Xinfeng Industrial? Chongqing Limited, but can not simply make the conclusion that this case is a unit crime. Unit crime should have the following characteristics: 1, the crime is committed in the name of the unit, it must be a collective study by the unit or by the head of the unit decided to implement, can reflect the will of the unit; 2, the proceeds of crime to the unit. Defendant Cheng Qing to the name of Singapore New Peak International Limited activities, itself did not obtain the company's authorization, should be regarded as theft of the name of the unit; Defendant Cheng Qing set up Chongqing Meixin Shoes Company, New Peak Industry? Ltd. is to cheat the property of the merged enterprise, i.e., for the purpose of committing crimes, the company is also mainly to carry out criminal activities after the establishment of the company; from the point of view of the destination of the fraudulently obtained property, the stolen money of nearly 3 million yuan RMB in the case all belongs to Cheng Qing's personal possession. June 18, 1999, the Interpretation of the Supreme People's Court on the Trial of Specific Application of Laws in Cases of Unitary Crimes, which stipulates that If an individual commits a crime in a company, enterprise or institution set up for the purpose of carrying out illegal and criminal activities, or if a company, enterprise or institution is set up with the commission of a crime as its main activity, or if a crime is committed by stealing the name of a unit, and the unlawful proceeds of the crime are privately shared by the individual who commits the crime, he or she will be convicted and punished in accordance with the criminal law provisions on crimes committed by natural persons. Therefore, the defendant Cheng Qing by the contract fraud, does not meet the unit crime legal constitutive elements, it should be applied to the provisions of the natural person crime to be punished. The first and second instance two levels of the court's decision is in line with the supreme people's court of the above judicial interpretation of the provisions.
The name of merging enterprises is actually cheating for property
--Cheng Qing contract fraud case
Author: The Second Division of Criminal Trial of the Supreme People's Court Release Time: 2002-09-09 15:53:39
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The merger contract is characterized by the acquisition of the assets of the merged party by the merging party and the right to dispose of them. However, such disposition is commensurate with the merging parties' actual fulfillment of their obligations under the merger contract. If the merging parties take deceptive means to sign the merger contract to obtain the assets of the merged party, do not fulfill the obligations stipulated in the merger contract, do not use the merged assets for production and business activities, or a small part of the obligations to fulfill the merger contract, a small part of the assets used for production and business operations as a bait to fraudulently obtain the majority of the assets of the merger to realize the assets for their own use, it is the purpose of unlawful appropriation, use of the economic Contract fraud of the property of the merged enterprise, the amount is large, constitutes the crime of contract fraud.
Public Prosecution: Chongqing Municipal People's Procuratorate Branch No. 1
Defendant: Cheng Qing
Case: Contract Fraud
First Trial No.: (2001) Yuyi Zhongzhong Criminal No. 326
Second Trial No.: (2001) Yu Gaofa Criminal Terminal No. 399
One: the basic facts of the case
The defendant, who used to call himself Cheng Qing, was convicted of fraudulent use of economic contracts. Defendant Cheng Qing, once known as "Cheng Biao", male, born on July 20, 1962 in Chongqing, Han nationality, university education, the former chairman of Xinfeng Industrial Co. Ltd., living in Chongqing City, Yuzhong District, No. 16, Shan Guo Lane, Duchimen. Suspected of committing contract fraud on July 30, 2000 was criminally detained, arrested on September 6 of the same year.
In 1992, the defendant Cheng Qing in the group to Southeast Asia during the tour, their own group to Sierra Leone **** and the country, in the country to obtain an identity card, but did not reside in the country, and did not apply for the cancellation of Chinese citizenship. in November 1994, Cheng Qing with the identity card of Sierra Leonean citizens in Singapore **** and the country with others to set up a partnership with the new Singapore peak international limited, the registered capital of 100,000 Singapore dollars, the registered capital of 100,000 Singapore dollars. The registered capital was 100,000 Singapore dollars, and Cheng Qing was one of the two shareholders and a director of the company. The company in China did not in accordance with the "Chinese people's *** and the State Company Law" for the relevant provisions of the company registration procedures, and did not set up branches in China, does not have the legal personality of Chinese enterprises. 1996 August, Cheng Qing in the name of the Singapore New Peak International Ltd. and the People's Government of Chongqing Municipality, Yuzhong District, the people's office of the Nankimen Street, the Nankimen Industrial Company, the enterprises owned by the Chongqing Municipality, the Lixin printing carton factory reached an agreement between the two sides in the Chongqing Municipality. Carton Factory reached the two sides in Chongqing *** with the investment in the establishment of Sino-foreign joint venture enterprise Chongqing Meixin Shoes Company agreement, the agreement provides that: the joint venture company's total investment of RMB 2 million yuan, the registered capital of RMB 1.8 million yuan, the foreign party, Singapore New Peak International Ltd. with machinery and cash *** total of RMB 1.35 million yuan of the equivalent value of foreign exchange investment, accounting for 75% of the company's investment, the funds in the joint venture company's registered business license. Funds in the joint venture company registered business license issued within two months of the date of in place; Chinese joint venture Chongqing Lixin Printing Carton Factory to have the right to assess the value of the unit equivalent of RMB 450,000 yuan of its own real estate investment, accounting for 25% of the company's investment. Later, the defendant Cheng Qing with a 700,000 yuan of blank transfer cheques bank statement of account and a forged 600,000 yuan of bank transfer cheques statement of account, as a foreign partner in place of all the funds in the vouchers, fraudulent Chongqing Meixin footwear company's registration and the People's Republic of China and the State Enterprise Legal Person Business License. But so far, Cheng Qing and his Singapore New Peak International Limited have not made any investment in Chongqing Meixin Shoes Company.
In March 1997, the defendant Cheng Qing cheated the registration of Chongqing Meixin Shoes Company, in order to accept the full staff of employees, bear all the debts and liabilities, on-time payment of wages and social security contributions and other commitments as a condition, to take the signing of the agreement, with the Chongqing Meixin Shoes Company's name and merged with the Chongqing Lixin Printing Carton Factory. After the merger, the defendant Cheng Qing did not according to the provisions of the agreement to assume the debt of the factory, but through part of the plant as a mortgage, sell part of the plant, etc., *** gained 2,345,600 yuan, in addition to the payment of the factory workers wages, medical expenses, return a small amount of loans, pay social security contributions, etc., *** counted 828,900 yuan spent, Cheng Qing actually gained 1,516,700 yuan of stolen money.
In May 1998, the defendant Cheng Qing to full acceptance of the staff, bear all debts and liabilities, on-time payment of wages and social security contributions and other commitments as a condition, to take the signing of the merger agreement, with the name of Chongqing Meixin Shoes merged with Chongqing Plastic Nineteen Factory. After the merger, Cheng Qing did not use the property for production and business activities, but rather, by mortgaging part of the plant, selling part of the plant, etc., **** gained 390,100 yuan. In addition to the expenditure of the factory staff wages and payment of staff social pension insurance 20.92 million yuan, Cheng Qing was stolen 18.09 million yuan.
December 1997, the defendant Cheng Qing using asset reorganization, revitalization of assets, *** with the production of TPR new shoe materials, full acceptance of the staff, assume all debts and liabilities, on-time payment of wages and social insurance payments, assume all debts and liabilities of the enterprise as a condition of the commitment to sign a merger agreement, in the name of the Singapore New Peak International Ltd. and the Chongqing Changzheng Ltd. signed a merger agreement with Chongqing Changzheng Stamping Factory (a collective enterprise) and carried out the merger of the factory. After the merger, the defendant Cheng Qing neither the plant's property for production and business activities, nor according to the provisions of the agreement to assume all the plant's debt, but to take the plant's housing mortgage, selling the plant's equipment, leasing the facade and other ways to obtain 1.4456 million yuan. In addition to pay the factory workers' wages 22.29 million yuan, Cheng Qing *** gained 1.2227 million yuan.
January 1998, the defendant Cheng Qing in the name of Singapore New Peak International Ltd. to the Chongqing Foreign Economic and Trade Commission and the Chongqing Municipal Administration for Industry and Commerce to apply for the establishment of a wholly foreign-owned enterprises in Chongqing with a registered capital of 3 million U.S. dollars - New Peak Industries? Ltd. In April of the same year, Cheng Qing will be an amount of 600 U.S. dollars in Singapore? U.S. Citibank special transfer check back to change to 3 million U.S. dollars, as the investment money has been in place as evidence, cheated the new peak industry? Chongqing Co., Ltd. registration and the Chinese people's **** and state enterprise legal person business license. In August of the same year, the defendant Cheng Qing in only to the new peak industry? Chongqing Co., Ltd. invested only 600 U.S. dollars, knowing that they do not have the ability to actually perform the case, to receive all the employees of the enterprise, to assume all debts and liabilities, to receive all the property of the enterprise, the timely payment of wages to employees, social pension insurance contributions and other commitments as a condition for the new peak industry? Ltd. to merge Chongqing Southwest Garment Factory. After the merger, Cheng Qing, through the sale of the Southwest Garment Factory's 9 storefronts located at No. 166 Shi Xiaolu, Jiulongpo District, Chongqing City, sold some of the factory's raw materials, rented out storefronts, and collected pensions paid by the Social Security Bureau to the factory's employees, etc., and *** gained 1,832,400 yuan. In addition to pay the factory workers' pensions, wages, medical expenses, decorating the office and other costs, the defendant Cheng Qing **** stolen money 6.71 million yuan.
December 1998, Cheng Qing absconded with the stolen money, changed his name to hide, and then on July 30, 2000 attempted to exit from Shenzhen Luohu port was captured.
Second, the prosecution and defense
Chongqing Municipal People's Procuratorate Branch No. 1 to the defendant Cheng Qing committed contract fraud to the Chongqing Municipal Intermediate People's Court.
The defendant Cheng Qing and his defense argued: the defendant Cheng Qing merger of enterprises is the company's normal business activities, failure to fulfill the merger agreement is an economic dispute with the enterprise employees, no illegal possession of purpose, does not constitute fraud.
Third, the referee
Chongqing First Intermediate People's Court held that: the defendant Cheng Qing through the forgery, alteration of financial instruments, false capital contribution and other criminal means, to obtain the Chongqing Meixin Shoes Company and Xinfeng Industry? Chongqing Limited enterprise legal person registration and received the People's Republic of China *** and the State enterprise legal person license. Ltd. did not apply for enterprise registration in the People's Republic of China, does not have the legal personality of the People's Republic of China, and cannot engage in business activities in the name of the company in China. Defendant Cheng Qing knew that he did not have any ability to perform, in order to illegally occupy the property of the collective economic organization, borrowing the illegally obtained business license Chongqing Meixin Shoes Company, Xinfeng Industry? Ltd. and Singapore Xinfeng International Co., Ltd. which could not engage in business activities within the territory of our country, signed a merger agreement by means of deceptive methods such as asset reorganization, **** with the production of new type of TPR footwear, export of garments, and acceptance of employees in full, payment of employees' salaries on time, payment of employees' social pension insurance, etc., and unlawfully merged Chongqing Lixin Printing and Carton Factory, Chongqing Plastic Nineteen Factory, and so on. Chongqing Lixin Printing Carton Factory, Chongqing Plastic Nineteenth Factory and other collective enterprises. After the merger, in order to achieve the purpose of possessing the property of the enterprises, the defendant Cheng Qing neither used the property of these enterprises for production and operation activities, nor assumed the debts and liabilities of these enterprises according to the provisions of the agreement, but through selling, mortgaging, renting out the effective assets of the merged enterprises and receiving other incomes of the merged enterprises, etc., to obtain the stolen money*** amounting to 2,980,740,000 yuan, and his behavior constituted a crime of contractual fraud and the amount was particularly huge, which shall be severely punished according to law. The amount was particularly large and should be severely punished in accordance with the law. In accordance with Article 224, paragraph 5, and Article 57, paragraph 1, of the Criminal Law of the People's Republic of China, the Criminal Law of the People's Republic of China provides that a person who commits contract fraud shall be punished severely. Article 224(5), Article 57(1) and Article 59(1) of the Criminal Law of the People's Republic of China, the following sentence was passed on July 31, 2001:
1. Defendant Cheng Qing was sentenced to life imprisonment, deprivation of political rights for life and confiscation of all personal property for the crime of contract fraud;
2. 2. 2.98 million yuan ($747,400) of the proceeds of crime of Defendant Cheng Qing shall continue to be recovered.
After the verdict of the first trial, Cheng Qing appealed on the grounds that he was a citizen of Sierra Leone*** and the country, and that his disposal of the property of the merged enterprise was a normal business activity of the company, and that the economic dispute with the employees of the merged enterprise did not constitute fraud.
Chongqing Municipal Higher People's Court held that: the appellant Cheng Qing to illegal possession for the purpose of using the means of signing a merger contract, fraudulent acquisition of collective enterprise property, the amount is particularly large, his behavior has constituted the crime of contract fraud, the amount of the crime is particularly large, the interests of the state and the people caused significant losses, shall be severely punished in accordance with the law. The original judgment was correct in its conviction and application of the law, the sentence was appropriate, and the trial procedure was lawful. In accordance with article 189, paragraph 1, of the Criminal Procedure Law of the People's Republic of China, the original sentence was passed in 2001. I of the Criminal Procedure Law of the People's Republic of China, it was decided on November 23, 2001, that the appeal should be dismissed and the original sentence upheld.
Four, the main thrust of the decision
A with the purpose of illegal possession, the use of the means of signing a merger contract, fraudulent acquisition of property of the merged enterprise in a larger amount, constitutes the crime of contract fraud.Contract is the agreement between the parties on the relationship between civil rights and obligations. In the socialist market economy, the contract is increasingly widely used in a variety of commercial transaction activities, become a reflection of commercial subject autonomy and regulation of the rights and obligations of the two sides of the important means. However, in commercial transactions, some criminals often use economic contracts to carry out fraud and other activities, seriously disrupting the normal market economic order. Article 224 of the criminal law clearly stipulates the purpose of illegal possession, in the process of signing and fulfilling the contract to cheat the other party's property in five cases: 1 to fictitious units or fraudulent use of the name of another person to sign a contract; 2 to forged, altered, canceled bills or other false proof of property rights as a guarantee; 3 without the actual ability to perform, in order to perform a small amount of the contract or part of the performance of the contract first, to cheat the other party to continue to sign and perform the contract. The other party to continue to sign and fulfill the contract; 4 to accept the other party to pay the goods, payments, advances or secured property and then fled; 5 to other methods of fraudulently obtaining the property of the other party. Behavior of one of the above five circumstances, cheating the other party's property in a larger amount, constitutes the crime of contract fraud. The defendant in this case Cheng Qing use signing "merger" agreement to cheat the property of the merged enterprise, belongs to the criminal law, article 224 of the "other methods of cheating the other party's property," the situation.
The business activity of "merging enterprises" in modern society requires that the merging company should have a certain economic strength, and should be able to provide the necessary financial support to the merging company. Enterprises should have a certain economic strength, good business conditions and the necessary business reputation, that is, the ability to fulfill the contract and good faith. At the same time, should also be specific implementation of the contract, in accordance with the merger agreement to resettle the employees of the merged enterprise, the organization of production, repayment of the debts of the merged enterprise. In this case, from the ability of Cheng Qing to fulfill the contract, he initiated the establishment of Chongqing Meixin Shoes Company, Xinfeng Industry Co. Ltd. were all "shell" companies set up by way of false capital contribution, without any economic strength and market reputation, and did not have the conditions to merge the enterprises. Cheng Qing is simply unconditional to fulfill the contractual obligations of "reorganization of assets, *** with the production of TPR new shoe materials, export of clothing and full acceptance of employees, on-time payment of wages, payment of employee social security contributions". From the defendant Cheng Qing to perform the specific behavior of the contract, in the price of zero to the implementation of the "merger" of the above enterprises, did not actively organize the company's production and resettlement of the employees of the merged enterprise employment, but the malicious disposal of the property of the merged enterprise: on the sale of machinery and equipment, raw materials, real estate and so on, immediately sold, for the bad sale of property to the In addition to a small amount of the proceeds, which were used to pay employees' salaries, medical fees and pension contributions, most of them were transferred privately and appropriated for their own use, and then absconded with the money and changed their names in an attempt to flee the country. His behavior fully proved that he subjectively did not have any sincerity in fulfilling his obligations under the merger agreement. Therefore, it can be concluded that he had the purpose of illegal possession.
It should be noted that, in the actual economic life, due to the merger of enterprises and the existence of a large number of economic disputes, how to correctly distinguish between the merger of enterprises and economic disputes in the name of the merger of the boundaries of the fraudulent enterprise property? The key lies in the correct determination of whether the defendant has the purpose of illegal possession. According to