The core point: whether the auxiliary components belong to special equipment, there is no legal basis; whether the auxiliary components to be produced by special equipment manufacturers, installation based on unknown.
The facts of the case:
Sodium nobile company's legal representative for the defendant Zhou Moujia, the company's business scope for the design of garbage disposal projects and equipment installation and maintenance services, but did not get the quality and technical supervision departments issued by the boiler manufacturing, installation, transformation and maintenance license.
In July 2002, sodium nobelium company and Hongfeng company signed the purchase and sale of the total selling price of 16 million yuan of the two sets of domestic garbage incinerator and its complete sets of equipment contract, sodium nobelium company is responsible for the equipment, system installation and commissioning and after-sales service.
After the contract was signed, sodium nobelium company organized the company's technical personnel to design two sets of domestic waste incinerator drawings. On September 30th of the same year, SATNOX signed a contract with Beijing Boiler Factory (with the corresponding special equipment license qualification) to order two waste heat boilers among the equipment parts of the above mentioned domestic garbage incinerator, and SATNOX submitted the boiler design drawings to Beijing Boiler Factory for approval, and obtained the approval for production from Beijing Municipal Bureau of Quality and Technical Supervision and Beijing Municipal Bureau of Mechanical Industry Administration on December 2nd of the same year.
Since August 2003, Sodium Nobelium employed Wang Moujia to form an installation team with Luoyang General Machinery Factory (which is not qualified for installation of special equipment), and participated in the installation of the grate drive system, steel structure and other components in the name of Sodium Nobelium, as well as employing other construction personnel for the construction of the furnace wall.
After the installation, the equipment malfunctioned and a dispute arose between the two parties.
On May 29, 2007, Sodium Nobile Company filed a civil lawsuit with Quanzhou Intermediate People's Court on the grounds that Hongfeng Company defaulted on the contract payment, and the judgment was that Hongfeng Company paid Sodium Nobile Company the payment of 6,361,310.8 yuan and rejected Sodium Nobile Company's other lawsuit requests.
On December 20, 2010, Hongfeng reported Zhou Moujia to the Shishi Public Security Bureau on suspicion of committing a crime. Allegations Zhou Moujia suspected of illegal business.
May 17, 2011, the defendant Zhou Moujia wanted online, in Beijing Dongcheng District was arrested by the local police station.
Fujian Quality and Technical Supervision Bureau of Special Equipment Safety Supervision issued a letter of reply, proving that the boiler parts involved in the case belong to the "Regulations on the Safety Supervision of Special Equipment," the supervision of special equipment (boiler class). Later on April 16, 2013 issued a letter of reply, proving that the above boiler belongs to the State Administration of Quality Supervision published "special equipment catalog" in the "boiler" category of "pressurized steam boiler", by the general picture shown in the chain grate, feeding system, hopper Interface, furnace, superheater, operating platform and other components.
The court of first instance held that:
The defendant unit sodium nobelium company for shishi city life waste incineration comprehensive treatment plant project to provide the cost of 16 million yuan in the process of life waste incinerator, in violation of state regulations, in the case of special equipment installation qualification, unauthorized employment of wang moujia self-organized installation team in the name of sodium nobelium company for the installation of hongfeng company. Special equipment domestic garbage incinerator in the chain grate and other important parts, seriously disrupting the market order, the circumstances are serious, his behavior constitutes illegal business crime.
The appellant Zhou Moujia claimed:
Sodium nobelium company in the provision of domestic garbage incinerator and its complete sets of equipment, there is no violation of state regulations unauthorized installation or commissioned by unqualified others to install the behavior of special equipment, special equipment involved in waste heat boiler is manufactured by Beijing Boiler Factory, installation, in line with the national provisions of the declaration, approval and other formalities and by the inspection, in the whole process of installation always accept the supervision department of special equipment, and the installation of special equipment. During the whole installation process, the company always accepts the monitoring, supervision, testing and acceptance of the special equipment supervision department. Its company is engaged in waste disposal engineering design, installation, maintenance service enterprises, in addition to special equipment can not be installed, can be engaged in other equipment and parts of the installation of no regulations prior to the restrictions, the original judgment found that its behavior constitutes the crime of illegal business without factual and legal basis.
The prosecutor put forward the inspection opinion: (very good defense)
1, the original judgment that sodium nobel company and the appellant Zhou Moujia constitutes the crime of illegal operation of the technical basis is unclear, it is in the manufacture of the product system by the Beijing Boiler Factory on the waste heat boiler, superheater, and other key parts of the design, installation, this case of equipment, such as the grate sheet and other auxiliary components should be produced by the special equipment manufacturers, Installation basis is unclear.
2, the State General Administration of Quality Supervision, Inspection and Quarantine in 2014 revised the "catalog of special equipment", the boiler category only pressurized steam boilers, pressurized hot water boilers, organic heat carrier boilers and other three categories, no longer reflect the boiler components, boiler materials, the existing evidence is difficult to determine the grate as part of the special equipment.
3, Fujian Provincial Bureau of Quality and Technical Supervision, Special Equipment Safety Supervision Department issued a second letter of clarification that the boiler as a whole belongs to the State General Administration of Quality Supervision published "special equipment directory" within the "boiler" type of "pressurized steam boiler". By the general drawing of the chain grate, feeding system, hopper interface, furnace, superheater, operating platform and other components, the opinion of the State General Administration of Quality Supervision, Inspection and Quarantine of the "special equipment catalog" and the 2008 "domestic waste incinerator and waste heat boiler" national standards do not match, not enough to be accepted.
4, in the application of law, the determination of sodium nobel company and the appellant Zhou Moujia constitute the crime of illegal business must be in violation of the management of special equipment as a prerequisite for the application of criminal law article 225, paragraph 4 of the provisions of the basis is insufficient.
In summary, the procuratorial authorities believe that the original judgment that the sodium nobel company and Zhou Moujia committed the crime of illegal business facts are unclear, insufficient evidence.
Hongfeng company commissioned by the litigation agent proposed:
From the "Regulations on the Safety Supervision of Special Equipment", "Special Equipment Catalog", "Boiler Safety Technical Supervision Regulations" - TSGG0001-2012 provisions, as well as Fujian Provincial Bureau of Quality and Technical Supervision certificate, Beijing Boiler Factory certificate, the Zhejiang Province, the Special Equipment Inspection and Research Institute. Product Quality Judicial Appraisal Center's "appraisal", the public security organs of the work of the description, witness testimony and other evidence can prove that the equipment involved in the case of the whole whole belongs to the special equipment, sodium nobel company in the absence of qualifications to engage in the design of special equipment, manufacturing, installation, transformation and other behavior has constituted the crime of illegal business.
The judge found that: the appellant's behavior constitutes the crime of illegal business evidence is insufficient.
1, including waste heat boilers, including the waste incinerator in question whether the whole unit as a whole belongs to the special equipment, the interpretation of the State General Administration of Quality Supervision, Inspection and Quarantine. But at present, the State General Administration of Quality Supervision, Inspection and Quarantine has not been an explanation of this issue, proving that the whole device is special equipment, the technical basis is unknown, Fujian Provincial Bureau of Quality and Technical Supervision of Special Equipment Safety Supervision issued on the whole boiler belongs to the State General Administration of Quality Supervision, Inspection and Quarantine announced the "special equipment directory" within the "boiler" category of the "Pressurized steam boiler" and other opinions and the State Administration of Quality Supervision, Inspection and Quarantine of the "special equipment catalog" and the 2008 "domestic waste incinerator and waste heat boiler" national standards are inconsistent with the existing evidence only proves that the waste incineration boiler in the case of only Beijing Boiler Factory design, manufacture, installation of waste heat boiler belongs to the Special equipment.
2, the State General Administration of Quality Supervision, Inspection and Quarantine in January 19, 2004 announced the "special equipment directory". In the catalog, the boiler category, including pressurized steam boilers, pressurized hot water boilers, organic carrier boilers and boiler components, boiler materials, and not directly to the domestic waste incinerator or domestic waste incineration boiler included. And the catalog listed boiler parts also only include boiler head, cylinder, collector box, boiler superheater, boiler reheater, boiler economizer, etc. (October 30, 2014 revision of the "special equipment catalog", in the boiler category, only listed pressurized steam boiler, pressurized hot water boiler, organic heat carrier boiler, and deleted the original boiler parts, boiler materials, etc.), and did not include the grate involved in this case, the original judgment found that sodium nobel company hired the boiler, the boiler, the boiler, the boiler, the boiler, the boiler, the boiler, the boiler and the boiler. The original judgment that sodium nobel company hired wang mou a installation team to install the domestic waste incinerator in the chain grate and other components belong to special equipment based on insufficient.
3, the State General Administration of Quality Supervision, Inspection and Quarantine in December 2002 promulgated the "domestic garbage incineration boiler" national standards to replace the 2000 Ministry of Construction promulgated the "domestic garbage incinerator" industry standards, and then in October 2008 promulgated the "domestic garbage incinerator and waste heat boiler" new national standards, the standard will be a garbage incinerator defined as The standard defines waste incinerator as "a device for incineration of domestic waste", and waste heat boiler as "a thermal device that effectively converts the energy released by the incineration process", which distinguishes the incinerator and waste heat boiler conceptually and in terms of content.
4, in the application of the law, the crime of illegal business refers to illegal business in violation of state regulations, seriously disrupting the market order, must be unauthorized to engage in the manufacture of boilers and other special equipment, installation, transformation and other acts, the premise of the crime must be a "violation of the criminal law", in the absence of evidence to determine that the sodium nano-corporation in violation of the "Regulations on the Safety Supervision of Special Equipment". Special Equipment Safety Supervision Regulations" in the case, the application of the criminal law article 225 of the fourth provision of the basis is insufficient.
In view of the above reasons, the Court finds that the original judgment found that sodium nobel company and the appellant Zhou Moujia constitute the crime of illegal business facts are unclear, insufficient evidence, the court prosecutor about the original judgment found that sodium nobel company and the appellant Zhou Moujia constitute the crime of illegal business technical basis is unclear, the grate and other auxiliary components are whether to be produced by the special equipment manufacturers, installation based on the unclear, and application of the criminal law, the fourth subparagraph of article 225 is not sufficient basis for the case. The original judgment that the sodium nobel company and Zhou Moujia constitute illegal business crime facts are unclear, insufficient evidence, suggest that the court of second instance to change the sentence according to law, as well as the appellant sodium nobel company, the appellant Zhou Moujia appeal for acquittal of the appeal are adopted.
Therefore, the appellant Zhou Moujia was found not guilty.
The appellant Zhou Moujia is not guilty.