"In the name of merging enterprises, but in fact defrauding property" —— Cheng Qing's contract fraud case
The characteristic of a merger contract is that the merging party obtains the assets of the merged party and has the right to dispose of them. However, this disposal is symmetrical with the actual performance of the obligations stipulated in the merger contract by the merging party. After signing a merger contract by deception and obtaining the assets of the merged party, the merging party fails to perform the obligations stipulated in the merger contract, does not use the merged assets for production and business activities, or uses a small part of the merged assets as bait to defraud most of the merged assets for their own possession, with the purpose of illegal possession, and uses the economic contract to defraud the property of the merged enterprise, which constitutes the crime of contract fraud.
Public Prosecution Organ: No.1 Branch of Chongqing Municipal People's Procuratorate
Defendant: Cheng Qing.
Cause of action: contract fraud
I. Trial number: (200 1) The penalty is more than 326.
CaseNo. of second instance: (200 1) Gao Yufa's final sentence No.399
I. Basic information
Defendant Cheng Qing, formerly known as "Cheng Biao", male,1born in Chongqing on July 20th, 962, Han nationality, university culture, former Xinfeng Industry? Chairman of Chongqing Co., Ltd., living in Guo Shan Lane, Chuqimen, Yuzhong District, Chongqing 16. On July 30, 2000, he was criminally detained on suspicion of contract fraud and was arrested on September 6 of the same year.
During the period of 1992, the defendant Cheng Qing left for Sierra Leone and obtained an identity card in that country, but did not live in that country and did not apply for cancellation of China nationality. 1994165438+1October, Cheng Qing established Singapore Xinfeng International Co., Ltd. in Singapore with the identity card of a Sierra Leonean citizen, with a registered capital of S $65438+10,000. Cheng Qing is one of the two shareholders and serves as a director of the company. The company has not gone through the registration formalities in China according to the relevant provisions of the Company Law of People's Republic of China (PRC), and has not set up a branch in China, so it does not have the qualification of an enterprise legal person in China. 1In August, 1996, Cheng Qing, in the name of Singapore Xinfeng International Co., Ltd., reached an agreement with Chongqing Lixin Printing and Carton Factory under Nanjimen Industrial Company, Nanjimen Sub-district Office of Yuzhong District People's Government to jointly invest in Chongqing Meixin Shoes Company, a Sino-foreign joint venture. According to the agreement, the total investment of the joint venture company is RMB 2 million. The registered capital is RMB 6,543.8+800,000, and the foreign investment of Singapore Xinfeng International Co., Ltd. is equivalent to RMB 6,543.8+350,000 in machinery and cash, accounting for 75% of the company's investment, and its funds will be in place within two months from the date of issuance of the registered business license of the joint venture company; Chongqing Lixin Printing Carton Factory, a joint venture in China, invested RMB 450,000 in its own property, accounting for 25% of the company's investment. Later, the defendant Cheng Qing defrauded the registration of Chongqing Meixin Shoes Company and the business license of China people by using a bank receipt with a short transfer check of 700,000 yuan and a forged bank transfer check of 600,000 yuan as proof that all the foreign investors' funds were in place. However, neither Cheng Qing nor Singapore Xinfeng International Co., Ltd. made any investment in Chongqing Meixin Shoes Company.
1March, 1997, after the defendant Cheng Qing defrauded Chongqing Maxim Shoes Company for registration, he signed an agreement in the name of Chongqing Maxim Shoes Company to merge Chongqing Lixin Printing Carton Factory on the condition that all employees were accepted, all debts were borne, employees' salaries were paid on time and social insurance premiums were paid. After the merger, the defendant Cheng Qing did not assume the debts of the factory as agreed in the agreement, but obtained 2,345,600 yuan through mortgage loans and the sale of some factories. In addition to paying 828,900 yuan in salary, medical expenses, repaying a small amount of loans and paying social endowment insurance for employees, Cheng Qing actually got 1.565438 yuan.
1In May, 1998, the defendant Cheng Qing merged the 19th plastic factory in Chongqing in the name of Chongqing Meixin Shoes Company on the condition that he accepted all employees, assumed all creditor's rights and debts, paid employees' wages on time and paid social insurance premiums. After the merger, Cheng Qing did not use the property for production and business activities, but obtained 390,5438+0,000 yuan through mortgage loans for some factories and the sale of some factories. In addition to paying the wages of the workers in the factory and paying the social endowment insurance fee of 209,200 yuan, Cheng Qing also received a sum of 6,543,808 yuan.
1997 65438+February, the defendant Cheng Qing signed a merger agreement with Chongqing Changzheng Stamping Factory (collective enterprise) in the name of Singapore Xinfeng International Co., Ltd., on the condition that it reorganized its assets, revitalized its assets, * * * produced TPR new shoes, took over all employees, assumed all creditor's rights and debts, paid employees' wages and paid social insurance premiums on time, and assumed all creditor's rights and debts of the enterprise. After the merger, the defendant Cheng Qing did not use the property of the factory for production and business activities, nor did he undertake all the debts of the factory as agreed in the agreement. Instead, we used the factory's mortgage loan to sell the factory's equipment and rent the facade, and got 1445600 yuan. Cheng Qing * * * not only paid 222,900 yuan to the employees of the factory, but also received 654,380+0.2227 million yuan in stolen money.
1998 65438+ 10, the defendant Cheng Qing applied to Chongqing Foreign Economic Relations and Trade Commission and Chongqing Administration for Industry and Commerce for the establishment of a wholly foreign-owned enterprise with a registered capital of US$ 3 million in Chongqing. In April of the same year, Chongqing Co., Ltd., Cheng Qing presented a piece of Singapore with an amount of $600. Citibank's special transfer cheque receipt was altered to $3 million as evidence that the investment funds had been put in place, and Xinfeng Industry was cheated? Registration of Chongqing Co., Ltd. and Business License of People's Republic of China (PRC) Enterprise as a Legal Person. In August of the same year, the defendant Cheng Qing went to Xinfeng Industry alone? Chongqing Co., Ltd. invested US$ 600, knowing that it has no actual performance ability, on the condition that it accepts all employees of the enterprise, undertakes all creditor's rights and debts, accepts all property of the enterprise, pays employees' wages on time, and pays social endowment insurance. In the name of Chongqing Co., Ltd., Chongqing Southwest Garment Factory was merged. After the merger, Cheng Qing obtained RMB 1832400 yuan by selling 9 facade houses of Southwest Garment Factory located at No.0/66, Shixiaolu, Jiulongpo District, Chongqing, selling some raw materials of the factory, renting facade houses, and collecting pensions allocated by the Social Security Bureau to employees of the factory. Defendant Cheng Qing * * * not only paid the employee's pension, salary, medical expenses, office decoration and other expenses, but also received money and materials of 67 1 10,000 yuan.
1998 12, Cheng Qing absconded with stolen money, changed his name and surname to hide, and was arrested when he tried to leave Shenzhen Luohu Port on July 30, 2000.
Second, the opinions of both the prosecution and the defense
The first branch of Chongqing Municipal People's Procuratorate filed a public prosecution with Chongqing No.1 Intermediate People's Court for the defendant Cheng Qing's crime of contract fraud.
Defendant Cheng Qing and his defenders argued that the merger of the defendant Cheng Qing was a normal business activity of the company, and the failure to perform the merger agreement was an economic dispute with the employees of the company, which did not have the purpose of illegal possession and did not constitute fraud.
Third, the referee
The Chongqing No.1 Intermediate People's Court held that the defendant Cheng Qing obtained Chongqing Maxim Shoes Company and Xinfeng Industry by forging or altering financial tickets and making false capital contributions. Chongqing Co., Ltd. was registered as an enterprise legal person and obtained the business license of People's Republic of China (PRC). Singapore Xinfeng International Co., Ltd., to which it belongs, has not gone through the enterprise registration in People's Republic of China (PRC) and does not have the legal personality of People's Republic of China (PRC), so it cannot engage in business activities in the name of the company in China. Defendant Cheng Qing knew that he had no ability to perform the contract. In order to illegally possess the property of collective economic organizations, he borrowed Chongqing Meixin Shoes Company and Xinfeng Industry, which illegally obtained business licenses. In the name that Chongqing Co., Ltd. and Singapore Xinfeng International Co., Ltd. cannot engage in business activities in China, they signed a merger agreement, illegally merged collective enterprises such as Chongqing Lixin Printing Carton Factory and Chongqing Plastic No.19 Factory by means of asset reorganization, * * * cooperated in the production of TPR new shoes, exported garments and accepted employees in full, paid employees' wages on time and paid employees' social endowment insurance. After the merger, the defendant Cheng Qing did not use the property of these enterprises for production and business activities, nor did he assume the creditor's rights and debts of these enterprises as agreed. Instead, he obtained illegal money of 2,987,400 yuan by selling, mortgaging, renting out the effective assets of the merged enterprise and collecting other income from the merged enterprise. His behavior has constituted the crime of contract fraud, and the amount is extremely huge, which should be severely punished according to law. According to Article 224 of the Criminal Law of People's Republic of China (PRC)? V. In accordance with the provisions of the first paragraph of Article 57 and the first paragraph of Article 59, the following judgment was made on July 3, 20061day:
1. Defendant Cheng Qing was convicted of contract fraud, sentenced to life imprisonment, deprived of political rights for life, and confiscated all personal property;
2. Continue to recover RMB 2,987,400 from the money obtained by the defendant Cheng Qing.
After the verdict was pronounced in the first instance, Cheng Qing appealed on the grounds that he was a citizen of Sierra Leone, and his disposal of the property of the merged enterprise belonged to the normal business activities of the company, which was an economic dispute with the employees of the merged enterprise and did not constitute fraud.
The Higher People's Court of Chongqing held through trial that the appellant Cheng Qing defrauded the property of collective enterprises by signing a merger contract for the purpose of illegal possession, and the amount was extremely huge, which constituted the crime of contract fraud and caused great losses to the interests of the state and the people, and should be severely punished according to law. The original judgment, conviction and applicable laws were correct, the sentencing was appropriate and the trial procedure was legal. According to Article 189 of the Criminal Procedure Law of People's Republic of China (PRC)? 200 1 1 1 23 ruled that a new provision was added: the appeal was dismissed and the original judgment was upheld.
Fourth, the gist of the referee.
1. For the purpose of illegal possession, defrauding a large amount of property of the merged enterprise by signing a merger contract constitutes the crime of contract fraud.
A contract is an agreement reached by both parties on the relationship between civil rights and obligations. In the socialist market economy, contracts are increasingly widely used in all kinds of commercial transactions, and become an important means to embody the autonomy of commercial subjects and standardize the rights and obligations of both parties. However, in commercial transactions, some criminals often use economic contracts for fraud and other activities, which seriously disrupts the normal market economic order. Article 224 of the Criminal Law clearly stipulates five situations of defrauding the other party's property for the purpose of illegal possession in the process of signing and performing a contract: 1 signing a contract with a fictitious unit or using someone else's name; ? (2) Mortgaging with forged, altered or invalid bills or other false property rights certificates; (3) Without actual performance ability, defrauding the other party to continue to sign and perform the contract by performing the small contract first or partially; (4) escaping after accepting the goods, payment, advance payment or secured property of the other party; 5. defrauding the other party's property by other means. In one of the above five situations, the actor defrauded the other party of a large amount of property, which constituted the crime of contract fraud. Cheng Qing, the defendant in this case, defrauded the property of the merged enterprise by signing a "merger" agreement, which belongs to the situation of "defrauding the other party's property by other means" as stipulated in Article 224 of the Criminal Law.
What companies do modern society need to carry out the business activities of "merged enterprises"? Enterprises should have certain economic strength, good operating conditions and necessary business reputation, that is, the ability and sincerity to perform contracts. At the same time, it is also necessary to perform the acts agreed in the contract, resettle the employees of the merged enterprise according to the merger agreement, organize production, and repay the debts of the merged enterprise. In this case, judging from the defendant Cheng Qing's ability to perform the contract, Chongqing Maxim Shoes Company and Xinfeng Industry were initiated by him? Chongqing Co., Ltd. is a "shell" company with false capital contribution, which has no economic strength and market reputation and does not have the conditions for merging enterprises. Cheng Qing basically unconditionally fulfilled the obligations agreed in the contract, such as "asset reorganization, * * co-production of TPR new shoes, export of clothing to accept employees, timely payment of employees' wages, and payment of employees' social endowment insurance". Judging from the defendant Cheng Qing's specific behavior of performing the contract, after he "merged" the above-mentioned enterprises at zero price, he did not actively organize the company's production and resettle the employees of the merged enterprises, but maliciously disposed of the assets of the merged enterprises: he immediately sold the machinery and equipment that could be sold, raw materials and real estate, and mortgaged the property that was not easy to sell to the bank. Except for a small part of the proceeds, it was used to pay employees' wages, medical expenses and employee pension insurance, and most of the proceeds were transferred privately to himself. His behavior fully proves that he is subjectively not sincere in fulfilling the obligations stipulated in the merger agreement. Therefore, it can be concluded that it has the purpose of illegal possession.
It should be noted that in real economic life, there are a large number of economic disputes arising from enterprise merger. How to correctly distinguish between economic disputes in enterprise merger and defrauding enterprise property in the name of merger? The key is to correctly determine whether the defendant has the purpose of illegal possession. According to the relevant judicial interpretation and judicial practice experience, to judge whether the actor has the purpose of illegal possession, we should mainly make a comprehensive judgment based on whether he has the ability to perform the contract when signing the contract, whether he has adopted deception in the process of signing and performing the contract, whether he has actually performed the act, whether he is willing to take responsibility after breach of contract and the specific reasons for not performing the contract. The characteristic of a merger contract is that the merging party obtains the assets of the merged party and has the right to dispose of them. However, this disposal is symmetrical with the actual performance of the obligations stipulated in the merger contract by the merging party. During the performance of the contract, due to the fault or force majeure of one or both parties, the agreement cannot be performed in whole or in part, and there is no evidence to prove that the merged party has the subjective intention of illegal possession. Although the property loss of the merged party is caused by its disposal of the merged property, it still belongs to the scope of economic disputes. However, after signing a merger contract by deception to obtain the assets of the merged party, the merging party fails to perform the obligations stipulated in the merger contract, does not use the merged assets for production and business activities, or uses a small part of the merged assets as bait to defraud most of the merged assets for its own after realization, which is to defraud the property of the merged enterprise with the purpose of illegal possession. Cheng Qing, the defendant in this case, did not have the material ability, management ability and market credit to fulfill the merger agreement at all, and immediately realized the assets of the merged party by deception and absconded with the money, which fully proved that he had the purpose of "merging the enterprise" to illegally occupy the enterprise property, which met the constitutive requirements of the crime of contract fraud. It is appropriate for Chongqing People's Court to convict and punish him for contract fraud.
If a crime is committed in the name of a unit and the illegal income is obtained by the criminal individual, it shall be punished as an individual crime.
Defendant Cheng Qing implemented the actions of setting up a company, signing a merger agreement with the merged enterprise, and disposing of the property of the merged enterprise, although all of them were based on Singapore Xinfeng International Co., Ltd., Chongqing Meixin Footwear Company, Xinfeng Industry? Chongqing co., ltd., but it cannot be simply determined that this case is a unit crime. A unit crime should have the following characteristics: 1. To commit a crime in the name of a unit, it must be studied collectively by the unit or decided by the person in charge of the unit, which can reflect the will of the unit; 2. The proceeds of crime shall be owned by the unit. Defendant Cheng Qing's activities in the name of Singapore Xinfeng International Co., Ltd. without the authorization of the company itself shall be deemed as the name of the embezzling unit; Defendant Cheng Qing established Chongqing Maxim Shoes Company and Xinfeng Industry? The purpose of Chongqing Co., Ltd. is to defraud the property of the merged enterprise, that is, to commit crimes. After its establishment, the company mainly engages in criminal activities; Judging from the history of the defrauded property, nearly 3 million yuan involved in the case was all owned by Cheng Qing. 1June 1999 18 "Interpretation of the Supreme People's Court on Relevant Issues Concerning the Specific Application of Law in the Trial of Unit Crimes" stipulates that if a company, enterprise or institution established by an individual commits a crime, or if a company, enterprise or institution is established with the main activity of committing a crime, or the name of the unit is stolen, and the illegal income is divided equally among the individuals who commit the crime, it shall be determined according to the relevant nature of the criminal law. Therefore, the contract fraud committed by the defendant Cheng Qing does not meet the statutory constitutive requirements of unit crime, and the provisions of natural person crime should be applied to punish it. 1. The judgment of the court of second instance complies with the above-mentioned judicial interpretation provisions of the Supreme People's Court.
In the name of merging enterprises, it is actually defrauding property.
-Cheng Qing's contract fraud case
Author: the Supreme People's Court Criminal Trial Court II released on September 9, 2002 15: 53: 39.
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The characteristic of a merger contract is that the merging party obtains the assets of the merged party and has the right to dispose of them. However, this disposal is symmetrical with the actual performance of the obligations stipulated in the merger contract by the merging party. After signing a merger contract by deception and obtaining the assets of the merged party, the merging party fails to perform the obligations stipulated in the merger contract, does not use the merged assets for production and business activities, or uses a small part of the merged assets as bait to defraud most of the merged assets for their own possession, with the purpose of illegal possession, and uses the economic contract to defraud the property of the merged enterprise, which constitutes the crime of contract fraud.
Public Prosecution Organ: No.1 Branch of Chongqing Municipal People's Procuratorate
Defendant: Cheng Qing.
Cause of action: contract fraud
I. Trial number: (200 1) The penalty is more than 326.
CaseNo. of second instance: (200 1) Gao Yufa's final sentence No.399
I. Basic information
Defendant Cheng Qing, formerly known as "Cheng Biao", male,1born in Chongqing on July 20th, 962, Han nationality, university culture, former Xinfeng Industry? Chairman of Chongqing Co., Ltd., living in Guo Shan Lane, Chuqimen, Yuzhong District, Chongqing 16. On July 30, 2000, he was criminally detained on suspicion of contract fraud and was arrested on September 6 of the same year.
During the period of 1992, the defendant Cheng Qing left for Sierra Leone and obtained an identity card in that country, but did not live in that country and did not apply for cancellation of China nationality. 1994165438+1October, Cheng Qing established Singapore Xinfeng International Co., Ltd. in Singapore with the identity card of a Sierra Leonean citizen, with a registered capital of S $65438+10,000. Cheng Qing is one of the two shareholders and serves as a director of the company. The company has not gone through the registration formalities in China according to the relevant provisions of the Company Law of People's Republic of China (PRC), and has not set up a branch in China, so it does not have the qualification of an enterprise legal person in China. 1In August, 1996, Cheng Qing, in the name of Singapore Xinfeng International Co., Ltd., reached an agreement with Chongqing Lixin Printing and Carton Factory under Nanjimen Industrial Company, Nanjimen Sub-district Office of Yuzhong District People's Government to jointly invest in Chongqing Meixin Shoes Company, a Sino-foreign joint venture. According to the agreement, the total investment of the joint venture company is RMB 2 million. The registered capital is RMB 6,543.8+800,000, and the foreign investment of Singapore Xinfeng International Co., Ltd. is equivalent to RMB 6,543.8+350,000 in machinery and cash, accounting for 75% of the company's investment, and its funds will be in place within two months from the date of issuance of the registered business license of the joint venture company; Chongqing Lixin Printing Carton Factory, a joint venture in China, invested RMB 450,000 in its own property, accounting for 25% of the company's investment. Later, the defendant Cheng Qing defrauded the registration of Chongqing Meixin Shoes Company and the business license of China people by using a bank receipt with a short transfer check of 700,000 yuan and a forged bank transfer check of 600,000 yuan as proof that all the foreign investors' funds were in place. However, neither Cheng Qing nor Singapore Xinfeng International Co., Ltd. made any investment in Chongqing Meixin Shoes Company.
1March, 1997, after the defendant Cheng Qing defrauded Chongqing Maxim Shoes Company for registration, he signed an agreement in the name of Chongqing Maxim Shoes Company to merge Chongqing Lixin Printing Carton Factory on the condition that all employees were accepted, all debts were borne, employees' salaries were paid on time and social insurance premiums were paid. After the merger, the defendant Cheng Qing did not assume the debts of the factory as agreed in the agreement, but obtained 2,345,600 yuan through mortgage loans and the sale of some factories. In addition to paying 828,900 yuan in salary, medical expenses, repaying a small amount of loans and paying social endowment insurance for employees, Cheng Qing actually got 1.565438 yuan.
1In May, 1998, the defendant Cheng Qing merged the 19th plastic factory in Chongqing in the name of Chongqing Meixin Shoes Company on the condition that he accepted all employees, assumed all creditor's rights and debts, paid employees' wages on time and paid social insurance premiums. After the merger, Cheng Qing did not use the property for production and business activities, but obtained 390,5438+0,000 yuan through mortgage loans for some factories and the sale of some factories. In addition to paying the wages of the workers in the factory and paying the social endowment insurance fee of 209,200 yuan, Cheng Qing also received a sum of 6,543,808 yuan.
1997 65438+February, the defendant Cheng Qing signed a merger agreement with Chongqing Changzheng Stamping Factory (collective enterprise) in the name of Singapore Xinfeng International Co., Ltd., on the condition that it reorganized its assets, revitalized its assets, * * * produced TPR new shoes, took over all employees, assumed all creditor's rights and debts, paid employees' wages and paid social insurance premiums on time, and assumed all creditor's rights and debts of the enterprise. After the merger, the defendant Cheng Qing did not use the property of the factory for production and business activities, nor did he undertake all the debts of the factory as agreed in the agreement. Instead, we used the factory's mortgage loan to sell the factory's equipment and rent the facade, and got 1445600 yuan. Cheng Qing * * * not only paid 222,900 yuan to the employees of the factory, but also received 654,380+0.2227 million yuan in stolen money.
1998 65438+ 10, the defendant Cheng Qing applied to Chongqing Foreign Economic Relations and Trade Commission and Chongqing Administration for Industry and Commerce for the establishment of a wholly foreign-owned enterprise with a registered capital of US$ 3 million in Chongqing. In April of the same year, Chongqing Co., Ltd., Cheng Qing presented a piece of Singapore with an amount of $600. Citibank's special transfer cheque receipt was altered to $3 million as evidence that the investment funds had been put in place, and Xinfeng Industry was cheated? Registration of Chongqing Co., Ltd. and Business License of People's Republic of China (PRC) Enterprise as a Legal Person. In August of the same year, the defendant Cheng Qing went to Xinfeng Industry alone? Chongqing Co., Ltd. invested US$ 600, knowing that it has no actual performance ability, on the condition that it accepts all employees of the enterprise, undertakes all creditor's rights and debts, accepts all property of the enterprise, pays employees' wages on time, and pays social endowment insurance. In the name of Chongqing Co., Ltd., Chongqing Southwest Garment Factory was merged. After the merger, Cheng Qing obtained RMB 1832400 yuan by selling 9 facade houses of Southwest Garment Factory located at No.0/66, Shixiaolu, Jiulongpo District, Chongqing, selling some raw materials of the factory, renting facade houses, and collecting pensions allocated by the Social Security Bureau to employees of the factory. Defendant Cheng Qing * * * not only paid the employee's pension, salary, medical expenses, office decoration and other expenses, but also received money and materials of 67 1 10,000 yuan.
1998 12, Cheng Qing absconded with stolen money, changed his name and surname to hide, and was arrested when he tried to leave Shenzhen Luohu Port on July 30, 2000.
Second, the opinions of both the prosecution and the defense
The first branch of Chongqing Municipal People's Procuratorate filed a public prosecution with Chongqing No.1 Intermediate People's Court for the defendant Cheng Qing's crime of contract fraud.
Defendant Cheng Qing and his defenders argued that the merger of the defendant Cheng Qing was a normal business activity of the company, and the failure to perform the merger agreement was an economic dispute with the employees of the company, which did not have the purpose of illegal possession and did not constitute fraud.
Third, the referee
The Chongqing No.1 Intermediate People's Court held that the defendant Cheng Qing obtained Chongqing Maxim Shoes Company and Xinfeng Industry by forging or altering financial tickets and making false capital contributions. Chongqing Co., Ltd. was registered as an enterprise legal person and obtained the business license of People's Republic of China (PRC). Singapore Xinfeng International Co., Ltd., to which it belongs, has not gone through the enterprise registration in People's Republic of China (PRC) and does not have the legal personality of People's Republic of China (PRC), so it cannot engage in business activities in the name of the company in China. Defendant Cheng Qing knew that he had no ability to perform the contract. In order to illegally possess the property of collective economic organizations, he borrowed Chongqing Meixin Shoes Company and Xinfeng Industry, which illegally obtained business licenses. In the name that Chongqing Co., Ltd. and Singapore Xinfeng International Co., Ltd. cannot engage in business activities in China, they signed a merger agreement, illegally merged collective enterprises such as Chongqing Lixin Printing Carton Factory and Chongqing Plastic No.19 Factory by means of asset reorganization, * * * cooperated in the production of TPR new shoes, exported garments and accepted employees in full, paid employees' wages on time and paid employees' social endowment insurance. After the merger, the defendant Cheng Qing did not use the property of these enterprises for production and business activities, nor did he assume the creditor's rights and debts of these enterprises according to the agreement. Instead, he obtained illegal money of 2,987,400 yuan by selling, mortgaging, renting out the effective assets of the merged enterprise and collecting other income from the merged enterprise. His behavior has constituted the crime of contract fraud, and the amount is extremely huge, which should be severely punished according to law. According to Article 224 of the Criminal Law of People's Republic of China (PRC)? V. In accordance with the provisions of the first paragraph of Article 57 and the first paragraph of Article 59, the following judgment was made on July 3, 20061day:
1. Defendant Cheng Qing was convicted of contract fraud, sentenced to life imprisonment, deprived of political rights for life, and confiscated all personal property;
2. Continue to recover RMB 2,987,400 from the money obtained by the defendant Cheng Qing.
After the verdict was pronounced in the first instance, Cheng Qing appealed on the grounds that he was a citizen of Sierra Leone, and his disposal of the property of the merged enterprise belonged to the normal business activities of the company, which was an economic dispute with the employees of the merged enterprise and did not constitute fraud.
The Higher People's Court of Chongqing held through trial that the appellant Cheng Qing defrauded the property of collective enterprises by signing a merger contract for the purpose of illegal possession, and the amount was extremely huge, which constituted the crime of contract fraud and caused great losses to the interests of the state and the people, and should be severely punished according to law. The original judgment, conviction and applicable laws were correct, the sentencing was appropriate and the trial procedure was legal. According to Article 189 of the Criminal Procedure Law of People's Republic of China (PRC)? 200 1 1 1 23 ruled that a new provision was added: the appeal was dismissed and the original judgment was upheld.
Fourth, the gist of the referee.
1. For the purpose of illegal possession, defrauding a large amount of property of the merged enterprise by signing a merger contract constitutes the crime of contract fraud.
A contract is an agreement reached by both parties on the relationship between civil rights and obligations. In the socialist market economy, contracts are increasingly widely used in all kinds of commercial transactions, and become an important means to embody the autonomy of commercial subjects and standardize the rights and obligations of both parties. However, in commercial transactions, some criminals often use economic contracts for fraud and other activities, which seriously disrupts the normal market economic order. Article 224 of the Criminal Law clearly stipulates five situations of defrauding the other party's property for the purpose of illegal possession in the process of signing and performing a contract: 1 signing a contract with a fictitious unit or using someone else's name; ? (2) Mortgaging with forged, altered or invalid bills or other false property rights certificates; (3) Without actual performance ability, defrauding the other party to continue to sign and perform the contract by performing the small contract first or partially; (4) escaping after accepting the goods, payment, advance payment or secured property of the other party; 5. defrauding the other party's property by other means. In one of the above five situations, the actor defrauded the other party of a large amount of property, which constituted the crime of contract fraud. Cheng Qing, the defendant in this case, defrauded the property of the merged enterprise by signing a "merger" agreement, which belongs to the situation of "defrauding the other party's property by other means" as stipulated in Article 224 of the Criminal Law.
What companies do modern society need to carry out the business activities of "merged enterprises"? Enterprises should have certain economic strength, good operating conditions and necessary business reputation, that is, the ability and sincerity to perform contracts. At the same time, it is also necessary to perform the acts agreed in the contract, resettle the employees of the merged enterprise according to the merger agreement, organize production, and repay the debts of the merged enterprise. In this case, judging from the defendant Cheng Qing's ability to perform the contract, Chongqing Maxim Shoes Company and Xinfeng Industry were initiated by him? Chongqing Co., Ltd. is a "shell" company with false capital contribution, which has no economic strength and market reputation and does not have the conditions for merging enterprises. Cheng Qing basically unconditionally fulfilled the obligations agreed in the contract, such as "asset reorganization, * * co-production of TPR new shoes, export of clothing to accept employees, timely payment of employees' wages, and payment of employees' social endowment insurance". Judging from the defendant Cheng Qing's specific behavior of performing the contract, after he "merged" the above-mentioned enterprises at zero price, he did not actively organize the company's production and resettle the employees of the merged enterprises, but maliciously disposed of the assets of the merged enterprises: he immediately sold the machinery and equipment that could be sold, raw materials and real estate, and mortgaged the property that was not easy to sell to the bank. Except for a small part of the proceeds, it was used to pay employees' wages, medical expenses and employee pension insurance, and most of the proceeds were transferred privately to himself. His behavior fully proves that he is subjectively not sincere in fulfilling the obligations stipulated in the merger agreement. Therefore, it can be concluded that it has the purpose of illegal possession.
It should be noted that in real economic life, there are a large number of economic disputes arising from enterprise merger. How to correctly distinguish between economic disputes in enterprise merger and defrauding enterprise property in the name of merger? The key is to correctly determine whether the defendant has the purpose of illegal possession. according to