was: A rare case sent back twice——Guo Mou was charged with a new attempt of substantive defense and procedural defense in the second trial of the contract fraud case , the actual controller of more than ten companies.
On February 18, 2020, the People's Procuratorate of a certain city in Liaoning Province accused Guo of committing contract fraud; Sentenced to life imprisonment, deprived of political rights for life, and confiscated all personal property. He was ordered to refund more than RMB 100 million to the victim unit and victim Ma.
In May 2021, lawyer Sun Xiaoyang accepted the commission of Guo to serve as the defender of the second trial. On September 2, 2021, the Liaoning Provincial Higher People's Court (hereinafter referred to as the Liaoning High Court) ruled to revoke the original judgment on the grounds that "some facts found in the original judgment were unclear and the evidence was insufficient" and remanded for retrial.
Lawyer Sun Xiaoyang accepted Guo's entrustment and continued to serve as his defender during the first and second retrials (assistant lawyer Zheng Jiahui participated in related work). Regrettably, on June 27, 2022, an intermediate court once again made a retrial judgment with the same content as the original judgment.
On January 9, 2023, the Liaoning Higher People's Court once again ruled to revoke the original judgment and remand it for retrial on the grounds that "the original court's trial violated the legal procedures and may affect the fair trial" (the lawyer received the "Criminal Ruling") Book" is February 13, 2023).
In the same criminal case, the people's court twice revoked the original judgment and remanded for retrial, which is rare in trial practice and defense practice. The achievement of this defense is inseparable from the precise defense plans formulated by lawyers at different stages of litigation, as well as tenacious and tenacious efforts.
The case is huge in volume, complex in transactions, with a great deal of evidence, and intersects civil and criminal punishments, posing a severe test to the comprehensive legal quality and case-handling experience of defense lawyers.
Main facts of the case
The facts of the first fraud identified in the original judgment of an intermediate court are: the defendant Guo defrauded a large state-owned enterprise, and the defrauded amount was more than 85 million yuan. The main contents are as follows:
The foreign trade branch and mechanical and electrical branch of a large state-owned enterprise (hereinafter referred to as the foreign trade branch, the mechanical and Company, virtual name, the same below), an international trading company (hereinafter referred to as Zhongyi Company) and an industrial company (hereinafter referred to as Qingyuan Company) have long-term trade cooperation. From January 2014 to May 2017, the two parties signed a total of 326 contracts, including the "Procurement Contract", "Entrusted Purchase Agreement", "Supply Contract" and "Warehouse and Storage Agreement".
According to the stipulations of the above four types of contracts, the branch company purchases sesame and other grain goods from foreign countries or Qingyuan Company by way of letter of credit, and the goods are stored in Tianjin, Qingdao and a third-party warehouse in a certain county of Jilin Province, and the warehouse handles the storage for the branch company The ownership of the inbound goods belongs to the branch company. Before the expiration of the letter of credit, after Zhongyi Company and Xinyu Company paid off the payment to the branch company, the branch company issued a delivery order to the third-party warehouse, and Guo took the delivery form to the warehouse to pick up the corresponding goods.
At the end of 2015, a company of Guo had a serious problem with its cash flow and was no longer able to perform the contract, but it still continued to sign the contract with the branch. From March 2016 to May 2017, Guo deceived the person in charge of the third-party warehouse to cooperate with him in taking the goods out of the warehouse without payment and without obtaining the delivery procedures. Guo arranged for Xinyu Company to sell 4,794.96 tons of sesame seeds stored in Tianjin by the Foreign Trade Branch without permission, and arranged for Zhongyi Company to sell 5,707.953 tons of sesame seeds stored in Tianjin by the Mechanical and Electrical Branch Company, 920.7 tons of sesame seeds stored in Qingdao, and 920.7 tons of sesame seeds stored in Jilin Province. 2,280 tons of mung beans from a certain county were sold out of the warehouse privately, and then the money that should have been paid to the branch was used for other expenses. In order to conceal the behavior of leaving the warehouse privately, Guo also arranged for the warehouse to cheat by changing the pallet card for the routine warehouse check of the branch company.
The above-mentioned behavior involved 20 procurement contracts signed by the branch with Xinyu Company and Zhongyi Company, under which the actual procurement of 16,786.01 tons of sesame and 2,280 tons of mung beans.
In February 2019, an accounting firm issued a "Special Audit Report" and a description of the situation (hereinafter collectively referred to as the "Audit Report"), confirming that Xinyu Company and Zhongyi Company had privately released 11,423.613 tons of sesame and 2280 tons of mung beans, causing the branch company to lose more than RMB 85 million.
The facts of the second fraud identified by the original judgment are omitted.
Defense work
First and second trial defense
In May 2021, lawyer Sun Xiaoyang accepted Guo’s entrustment as the second trial defender. Lawyers expressed in-depth defense opinions from multiple dimensions such as procedures and entities. The two most important opinions are:
First, the lawyer carefully studied the transaction mode between the company controlled by Mr. Guo and the branch company, and after sorting out the two transaction lines of domestic trade and foreign trade, he clearly pointed out that both parties to the contract The agreement that the ownership of the goods involved in the case belonged to the branch company violated the prohibitive provisions of the law and was deemed invalid. The ownership of the goods involved in the case belonged to Guo Company from the beginning.
Take the transaction between Xinyu Company and its foreign trade branch as an example:
The nature of the "purchase contract" and "import agency agreement" on record determines that the ownership of the goods belongs to Xinyu Company. These two types of contracts clearly stipulate that the buyer is Xinyu Company, the seller is the foreign supplier, and the agent is the foreign trade branch, which charges the agency fee instead of the payment for the goods.
The "Import Agency Agreement" stipulates that "before Party B (Xinyu Company) pays the full amount, the ownership of the goods belongs to Party A (foreign trade branch)", which completely violates the nature of the contract and legal provisions, and is invalid . The defender of
believed that the reason why the "Import Agency Agreement" made a subversive agreement on the originally clear issue of ownership of goods was that the foreign trade branch chose to pay by letter of credit when acting as an agent for Xinyu Company to import goods, while according to the letter of credit According to the relevant regulations on settlement, the foreign trade branch shall provide a certain amount of deposit as a guarantee to the bank when applying for a letter of credit. Therefore, the Foreign Trade Branch requested Xinyu Company to acknowledge that the rights to the goods belonged to itself, which was actually transferring the risk of its guarantee responsibility to the bank. That is, on the one hand, it used the goods involved in the case as a guarantee for the deposit paid when applying for a letter of credit from the bank, and on the other hand, it used the goods involved in the case as a guarantee for collecting agency fees from Xinyu Company. The nature of the behavior of the foreign trade branch actually required Xinyu Company to provide movable property as a pledge.
However, according to Article 66 of the Guarantee Law applicable at the time of the transaction, “the pledgor and the pledgee shall not agree in the contract that when the debt performance period expires and the pledgee is not paid off, the pledged Article 211 of the Property Law stipulates that “before the expiration of the debt performance period, the pledgee shall not agree with the pledgor that the pledged property shall be owned by the creditor when the debtor fails to perform the due debt. "; even in accordance with the "National Court Civil and Commercial Trial Work Conference Minutes" ("Nine Civil Minutes") and the "Interpretation on the Application of <中华人民共和国民法典> Relevant Guarantee System" that are applicable when the case is being tried, Article 68, paragraph 1, and paragraph 2 , the conclusions are not different in the understanding of the transfer guarantee agreed by the two parties in the transaction.
It can be seen from the above that the agreement between the foreign trade branch and Xinyu Company that the ownership of the goods belongs to the foreign trade branch violates the prohibitive provisions of the law and is therefore invalid.
What needs to be emphasized is that the clause concerning the ownership of the goods rights to the foreign trade branch company seems to be a special agreement of the parties, but it is actually the branch company's insistence on relying on the strong position of the state-owned enterprise. However, the agreement of the parties must not violate the prohibitive provisions of the law, which is the bottom line of protection established by the law to protect the property rights of citizens and legal persons. The validity of a contract is determined by the law, not by the cognition of the parties.
The same is true for domestic trade transactions.
According to this, in the event that one of Guo's parties fails to pay the fee according to the contract, or even picks up the goods privately in violation of the procedures and steps stipulated in the contract, the branch company can only claim the creditor's rights according to the contract, or give priority to the price of the goods discounted, auctioned or sold. compensate. The original judgment found that Guo defrauded other people's property for the purpose of illegal possession, which violated the facts of the case and legal provisions. Lawyer
pointed out that in criminal cases, the determination of the ownership of the goods will directly determine the question of whether the defendant can be convicted. Although this case is a criminal case, and although the ownership of the goods involved in the case is mainly stipulated in civil laws, civil and criminal laws require citizens and legal persons to abide by and cannot be overstepped.
Secondly, the lawyer pointed out that the "authentication agency" and "appraiser" who issued the core evidence of this case, that is, the "audit report" have no qualifications.
Second, the retrial defense
is unexpectedWhat's more, after the case was retried for the first instance, on June 27, 2022, the original court sentenced Guo to life imprisonment again.
In the second trial of the retrial, the lawyer defended in both substantive and procedural directions. In addition to integrating and improving the original substantive defense opinions, he focused on the procedures that were pointed out in the first trial of the retrial but not explained and resolved by the public prosecution agency and the collegial panel question. That is to say, there is an obvious and serious problem of separation of accusation and evidence in the first case charged in the indictment, which will seriously affect the qualitative and sentencing.
Specifically, the "Indictment" used the conclusions of the "Audit Report", but there are obvious contradictions between the two, and they are quite different. Such inconsistencies include: the time period is obviously different (difference of two years and two months); ratio is only 6.13%); the types of transactions involved are not equal. More importantly, the "Indictment" is vague about which of the 20 alleged contracts are, and the public prosecution agency did not make it clear in the trial evidence of the first instance of the retrial. After the lawyer pointed out this major problem, he submitted his lawyer's opinions to the collegial panel of second instance for retrial many times, asking the collegial panel to remand the case for retrial on the grounds of procedural violations.
On February 13, 2023, the lawyer finally waited for this hard-won "Criminal Ruling" to be sent back for retrial for the second time.
What needs to be pointed out is that the ruling has focused on citing the core defense opinions issued by the defender. For example, in the first allegation of fraud, the public prosecution agency did not specify the 20 contracts involved in the case, and did not investigate the 20 contracts involved in the case. (Providing evidence) Cross-examination violated the litigation procedure; both parties to the contract agreed that the ownership of the goods belonged to the injured unit, which was invalid due to violation of the prohibitive provisions of the law, and the goods involved in the case should belong to the company actually controlled by Mr. Guo; neither the audit institution nor the auditors had the qualification Qualifications, the audit institution has a stake in the victim unit in this case, ... should not be accepted; the investigation agency for the second case of contract fraud did not perform due procedures for filing a case, ... the investigation behavior and the accusation in this section did not comply with the law, etc. The
ruling then pointed out that this court believed that the court of first instance had violated the legal procedures in the trial, which may affect the fair trial, and based on this, it again revoked the original judgment and remanded the ruling for retrial.
Experience sharing
1. The case is huge in size, complicated in transactions, with a lot of evidence, and intersects civil and criminal punishments, which poses a severe test to the comprehensive legal quality of defense lawyers.
In the substantive defense, the lawyer demonstrated from the perspective of civil law that the ownership of the goods involved in the case belonged to the defendant (appellant), and it was a valuable attempt to directly attack the elements of the crime of contract fraud. The defender summed himself up as "bold and careful, daring to argue differently; people are used for criminal purposes, four or two thousand catties".
2. On the basis of an accurate understanding of legal provisions, lawyers have made new attempts in procedural defense.
Many people think that in criminal proceedings, the same case can only be remanded for retrial once, which is not accurate. According to Article 406 of the Interpretation of the Supreme People's Court on the Application of the "Criminal Procedure Law", the court of second instance shall rule to revoke the original judgment and remand it for a new trial when it finds that the original court violated the procedure during the retrial.
During the retrial of this case, under the grim situation that the original sentence was sentenced to life imprisonment again, in order to avoid "rejecting the appeal and maintaining the original judgment", the lawyer not only sought to amend the sentence, but also asked for remand for retrial on the grounds that the original judgment procedure was illegal.
3. While substantive defense and procedural defense are used together, lawyers should be good at empathizing in defense and trial, and design feasible channels for fair trials. It can be described as "multiple design, three-dimensional defense; empathy, dare to think and act well".
4. The issue of ownership of the goods raised by the lawyer in the transaction mode of this case may affect the transaction practices in the field of agricultural and sideline products trade, as well as the general misunderstanding of people in the industry on relevant legal issues. The
retrial first-instance judgment stated that "this cooperation model has been adopted in practice", but the lawyer believes that the prevailing one may not be legal, and once the parties involved in the transaction are involved in a lawsuit, it will inevitably lead to a dispute over the ownership of the goods.
About the author
Sun Xiaoyang, a senior partner of Beijing Dacheng Law Firm, focuses on criminal defense business and commercial litigation and arbitration agency business. Criminal defense mainly involves economic crimes, duty crimes, civil-criminal cases, and violent crimes. It is also widely used in unit crime defense and second-instance defenseHas impressive performance.
