Author: Lawyer Jin Hanming, defense lawyer of fraud cases, secretary general of the fraud defense and research center of Guangqiang Law Firm
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Recently, lawyer Jin handled the case of Li Moumou suspected of fraud, and received a decision not to prosecute from the procuratorate, Li Moumou, as a private entrepreneur, was accused of fraud because his company had defects in the declaration process and procedures in relevant cooperation projects, involving millions of dollars, and a number of relevant responsible personnel of the company were charged.
If the crime is convicted in this case, the parties will face a sentence of more than ten years, and the case lasted for nearly a year and a half in the review and prosecution stage, and finally through multiple rounds of defense, the case-handling organ made a decision not to prosecute Li Moumou, and now combined with some of the innocence defense opinions we submitted in the review and prosecution stage, the following analysis and qualitative issues of the facts, evidence, and qualitative disputes in this case are made **, in order to have a positive reference for similar cases.
1. The physical evidence in this case can be provedThird-Party BusinessesThe content of the submitted application materials was clearly known, and the Commerce Bureau should have been aware of some of the false contents of the materials involved in the case during the review process, and there was no misunderstanding by the Commerce Bureau and other departments, and this case did not meet the constitutive elements of the crime of fraud.
The Prosecution Opinion is based on the testimony of some third-party enterprises and relevant witnesses".GT CorporationPurely for the acceptance of the material review to pass the testThird-Party BusinessesI do it in conjunction with the materialAfter identification, GT Company submitted the project acceptance materials to the K Municipal Bureau of CommerceThexHomeThird-Party Businessesindicates that it is present in the acceptance materialGT CorporationFabrication of idling flows, fake contracts, fake sales certificates, fake signatures, and applicationThird-Party BusinessesPublic accounts and other materials.
The defense believes that the above-mentioned witness testimony and the "Indictment Opinion" do not confirm that the facts are true for the following reasons:
First, according tokIssued by the Municipal Bureau of CommercekMunicipal Finance BureaukThe Municipal Bureau of Commerce applies for allocationkLetter of funds for the municipal e-commerce promotion projectSee Annex I for details)."On November 28, 2017, our bureau and your bureau will hold the second phase of the project acceptance meeting and invitetwpAs a review expert, the acceptance team reviewedxThe acceptance materials submitted by the supported enterprises, and all the enterprises were verified and the relevant conditions were verified. After inspection and verification, the acceptance team agreed to pass the acceptancePlease approve the project subsidy fundsxxx10,000 yuan ”
The above evidence can clearly prove that the K Municipal Bureau of Commerce and the K Municipal Finance Bureau jointly organized the project acceptance meeting, and the acceptance team reviewed the acceptance materials of the third-party enterprise**Verified allxHomeThird-Party BusinessesOn the one hand, the physical evidence can prove that the testimony of some third-party enterprise witnesses that "they have not received verification from the Commerce Bureau and the Finance Bureau" is a false statementOn the other hand, it can be proved that during the verification process, the third-party enterprise did not raise any objection to the authenticity of the acceptance materials, and the acceptance team did not receive or put forward any reasons for not passing the acceptance. On this basis, the testimony of the third-party enterprise and the Commerce Bureau was accepted after the fact, and its responsibility was not determinedFabrication of idling flows, fake contracts, fake sales certificates, fake signatures, and applicationThird-Party Businessespublic account" and other responsibilities are all blamedGT CorporationPatently inappropriate.
Second,Third-Party BusinessesThe acceptance materials submitted to the Commerce Bureau include the signed and stamped Declaration of Authenticity of Project Acceptance MaterialsThird-Party BusinessesAs a lawful business entity, it shall be responsible for the authenticity of the materials, after the occurrence of this caseThird-Party BusinessesThe relevant witnesses shirked all the responsibility for some of the false declaration materialsGT CorporationThe authenticity of the witness's testimony is doubtful, and this case cannot be determined on this basisGT CorporationLi Moumouand others bear the main criminal responsibility for the crime of fraud.
In this case, the relevant witness testimony of the third-party enterprise shifted all the responsibility for the false declaration materials involved in the case to GT Company, pointing out that some of the false declaration materials involved in the case were induced by GT Company's salesmen to cooperate with the production and submission, and they were not clear about the content of the declaration materials. The defender argued that the third-party enterprise, as a legitimate business entity, should be responsible for the company's business content, and should also be responsible for the letters and materials issued, signed, and stamped by the company. In the case that the relevant application materials involved in the case are in the third-party enterprise, and the person in charge of the third-party enterprise has signed and the company seals, the case-handling authority cannot determine that the main responsibility for issuing the false materials should be borne by GT Company just because of the verbal evidence that the authenticity of the relevant witnesses of the third-party enterprise is doubtful, but will not pursue the third-party enterprise that is the actual party of the application materials. The above-mentioned evidence can prove that the third-party enterprise should be aware of the authenticity of the materials involved in the case, and should also bear the responsibility for some of the false declaration materials.
Third, the physical evidence in this case can prove thatkMunicipal Bureau of Commerce and other departments forGT CorporationforThird-Party BusinessesThe actual facts of the relevant facts such as the provision of services, advance payments, service cycles, and the authenticity of the application materials are known, and there is no misunderstanding error in the Commerce Bureau.
According to the Notice on Soliciting Third-Party E-commerce Service Providers for the 2017 K City E-commerce Improvement Project issued by the K Municipal Bureau of Commerce and the K Municipal Finance Bureau: "The third-party e-commerce service providers of the E-commerce Improvement Project are responsible for providing comprehensive e-commerce services for participating small and medium-sized enterprises and helping them increase online salesAdvance payment of financial subsidies,Assist the Municipal Bureau of Commerce and the Municipal Bureau of Finance to do a good job in organizing the application of small and medium-sized enterprise projects.
It can be seen that inInvolvedIt is a requirement in the system setting of the project and in the actual operation processGT CorporationMust be made in advanceThird-Party BusinessesAdvance payment of subsidy. InGT CorporationtowardThird-Party BusinessesAt the time of the advance payment of the subsidy, the subsidy payment from the Commerce Bureau has not yet been disbursedThird-Party BusinessesThe application materials have not yet been submitted and verified. InvolvedIn terms of system setting, the project itself belongs to the situation that the third party is required to pay in advance and has not yet been accepted, and the acceptance procedure is a form setting, not a requirement for first review and then loan in the real sense.
Therefore, based on the policies and documents of the Commerce Bureau and the Finance Bureau, it can be judged that the subsidy payment has actually been decided and entrusted by the Commerce Bureau and the Finance Bureau before the application materials are submitted, accepted and verifiedGT CorporationDistribution, the disbursement of funds does not need to be subject to review as a necessary condition, and in the case of actual disbursement of funds, whether the review is only a formal requirement.
Combined with the "Notice on Printing and Distributing the E-commerce Development Plan of K City" of the people of K City, "Fourth, after the consent of the city, the notice of the special fund project plan for the commercial service industry in K City in 2017 will be issued. (See Annex II for details).
The document was approved by the K Municipal Bureau of Commerce and the Municipal Finance Bureau, and the special fund project plan for the business and trade service industry in K City in 2017 was issued. Among them, the 9th project in Annex 1 "2017 K City Commercial Service Industry Special Fund Project Plan Schedule" is the ...... of 'K City E-commerce Improvement Project'Main approach: Enterprises that achieve the target of x million online sales will be given a certain subsidy for the service fee spent by the enterpriseSubsidy per enterprisex10,000 yuan, and strive to supportxenterprises, totalx hundred10,000 yuan
As can be seen from the above documentsInInvolvedDuring the preliminary design process of the project, the ** document had stipulated that each enterprise would be subsidized "targeted".x10,000 yuan ThereforeGT CorporationFollow-up withThird-Party BusinessesIn accordance withx10,000 yuan of subsidiesxThe contract service fee of 10,000 yuan is agreed upon, which has a certain factual basis.
Fourth, fromGT CorporationforThird-Party BusinessesThe service period and the content of the application materials submitted by the Commerce Bureau should be well informedGT CorporationforThird-Party BusinessesThere are some inaccuracies in the submitted application materials.
The evidence on record can prove that from the time GT signed the service contract with some third-party enterprises to the time GT submitted acceptance materials to the Commerce Bureau for some third-party enterprises, the service period of GT for some third-party enterprises was only about 10 days. However, the above-mentioned "short service cycle" application materials have also been accepted and approved, and the third-party enterprise has not raised any objections during the first verification, and the acceptance team has not put forward any opinions during the review.
The above facts can prove that the Commerce Bureau has reviewed the application materials of X third-party enterprises and verified all of them. During the verification process, the Commerce Bureau and other departments should be able to understand that GT Company is unable to provide "full" services within the short service period of "about x days" with some third-party enterprises. However, the Commerce Bureau still approved the review, proving that the Commerce Bureau agreed to issue the subsidy on the basis of knowing the service content and service cycle of GT Company. This fact also corroborates with the model of "loan first without acceptance" in the aforesaid policy document, which proves that there is no misunderstanding of the Commerce Bureau, and this case does not constitute the crime of fraud.
2. Determination of this caseGT CorporationWhether the core facts of the crime of fraud are constitutedGT CorporationWhether or notThird-Party BusinessesContractually agreed services are provided, if:GT CorporationIn accordance with the contract and document requirements, to the vast majorityThird-Party BusinessesEven if the accusations of "fake sales certificate" and "idling flow" involved in the case are true, the crime of fraud should not be established in this case.
We believe that in transactional fraud cases, the core issue of whether the person involved in the case is guilty of fraud lies in whether the person involved in the case has paid or performed the main contractual consideration and the main contractual obligations that he or she should perform. If the person involved in the case has paid the main contract consideration to the contract counterparty, or has performed the main contractual obligation, even if other ancillary obligations or other related acts have deceptive means, it shall not constitute the crime of fraud.
For example: Zhang San bought a computer from Li Si for 10,000 yuan, as long as Zhang San paid 10,000 yuan for the purpose of obtaining the use value of the computer itself, Li Si did hand over the genuine computer to Zhang San, even if Li Si had false packaging, false ** description, and false qualification certificate in the transaction process, Li Si did not constitute the crime of fraud.
In the contractual relationship between GT and the Commercial Bureau, and in the contractual relationship between GT and a third party. The core payment behavior of the three parties is to pay the Commerce Bureau and purchase services from GT for a third-party enterprise. The core contractual obligation of GT is to provide services to the company. In other words, even if some enterprises have certain deficiencies in qualifications, less than x million in turnover, or GT has paid all the service fees for the third-party enterprise in advance, and there is a situation of idling and turnover, as long as GT provides "consideration services" in accordance with the tripartite contract and fulfills the main obligation of "providing services for third-party enterprises" as agreed in the contract, the crime of fraud should not be established.
In civil legal relations, there will be relevant provisions such as main contract obligations and ancillary obligations, and the pursuit of liability for breach of contract is relatively broad. However, in criminal cases, more attention is paid to the examination of substance and nature, and more attention is paid to the examination of whether the core "payment act" is performed. In this case, although it was also a contractual obligation of GT to ensure the authenticity of the application materials, the core contractual obligation and payment behavior of GT Company in the tripartite contractual relationship should be to provide "sufficient services" to the enterprise, and if GT Company was able to provide "equivalent" services to the vast majority of third-party enterprises, it should be deemed to have performed the "consideration services" agreed in the contract. Therefore, the defender believes that the core focus of the dispute in this case should be whether GT Company has performed services to the vast majority of third-party enterprises, rather than issues such as enterprise qualifications, idling flows, and turnover.
3. The available evidence in this case can prove thatGT CorporationtowardThird-Party BusinessesActual performance of the services agreed in the contract, in this caseThird-Party Businessesand its related personnelGT CorporationTestimony of failure to perform the services agreed upon in the contract is not true and cannot be used as the basis for a verdict in accordance with law.
First of all, although the services involved in this case occurred in 2017, several years have passed, and many of the evidence materials related to the case have not been preserved or have been lost, and it is difficult for GT Company and the relevant personnel involved in the case to review all the facts of the case at this stage. However, in order to cooperate with the investigation of the relevant departments, GT still tried its best to submit the physical evidence materials related to the case to the case-handling authorities as much as possible.
According to the evidence submitted by GT to the case-handling authority, such as "work execution trace materials" and "supporting materials", it can be proved that GT actually performed the services agreed in the contract to the third-party enterprise. According to the above-mentioned physical evidence, the services provided by GT to third-party enterprises include but are not limited to "homepage design drawings", "product design drawings", "activity participation drawings", etc., which meet the document requirements of the "Guidelines for the Application of E-commerce Improvement Work Projects" III. Supporting Contents.
Secondly, when the K Municipal Bureau of Commerce conducted the acceptance of the project, it reviewed and accepted the acceptance materials submitted by the third-party enterprise in accordance with the requirements of the documentsThe review included "screenshots of online marketing campaigns or advertisements.", "financial statements for the relevant months of 2017", "copies of tax payment vouchers for the relevant months of 2017", "declaration of authenticity of acceptance materials" and other physical evidence materialsAt the same timekThe Municipal Bureau of Commerce also conducted a ** verification with the relevant enterprises to confirmGT CorporationWhether it is in accordance with the requirements of the document and the contractThird-Party BusinessesThe service content was actually fulfilled. InkIn the process of acceptance and verification of the Municipal Bureau of CommerceThird-Party BusinessesThere was no objection, so the Commerce Bureau will approve and issue the subsidy.
We have reason to believe that the Bureau of Commerce of K City has reviewed and confirmed the authenticity of the "screenshots of online marketing activities or advertisements" provided by GT for the enterpriseIn the process of verification with the Commerce Bureau, the third-party company also confirmed the service content of GT and did not raise any substantive objections to the Commerce Bureau. As long as there is any objection to the above two confirmation links, it is impossible for the K Municipal Bureau of Commerce to approve and issue the subsidy payment.
Therefore, after the relevant departments intervened in the investigation and the case was discovered, the authenticity of the testimony of some third-party companies against GT Company for not performing or not fully performing the service content was doubtful. The enterprise could not explain why it did not raise an objection to the Commerce Bureau when the project was accepted, but when the relevant departments intervened in the investigation, it was "timely" targeted when the enterprise itself might be suspected of criminal liability for "fraud and compensation".GT CorporationThe performance of the contract was contested.
This case does not rule out the possibility that the enterprise and its relevant witnesses may give false testimony in order to avoid criminal liability. The defender believes that the relevant evidence of the third-party enterprise confirming the service content of GT Company at the time of acceptance by the Commerce Bureau of K City is more authentic, and the statement denying the service content of GT Company after the case is doubtful, and the authenticity is doubtful, and the case-handling authority is sincerely requested to investigate and verify.
Finally, taking 10,000 steps back, even if GT Company in this case has certain flaws in the performance period and content of the contract of a small number of enterprises, it should still be determined as a dispute over the performance of the civil contract. At the same time, the case-handling organ shall conduct a comprehensive investigation and comprehensive review and judgment of the third-party enterprise, and cannot completely deny GT's performance against the third-party enterprise on the basis of a small number of enterprises' possible purposeful objections after the case is discovered.
In addition, even if the accusation is based on the Prosecution Opinion, the basis is doubtfulThird-Party BusinessesRelevant witness testimony, atxHomeThird-Party Businesses, I am convincedgtThe company does not provide services onlyHome, the restThe "Prosecution Opinion" is not clearGT Corporationservices. In other words, the Prosecution Opinion at least recognizesHomeThird-Party BusinessesRogerGT CorporationServices provided (as for the partThird-Party BusinessesRelevant witness testimony stated that they were satisfied with the service and that the service was effective;sectionThird-Party BusinessesThe relevant witness testimony raised the issue of dissatisfaction with the service and the ineffectiveness of the service, and the defender believed that whether the customer was satisfied and whether the service was effective would be affected by a variety of factors, and the performance of the gold case company could not be judged or denied by whether it was effective or not).
Therefore, even according to the logic of the allegations in the Prosecution Opinion, the vast majority of the 45 third-party enterprises have already received the services provided by GT, and it should be determined that GT has fulfilled its main contractual obligations to the vast majority of third-party enterprises in this case.
FourthGT CorporationwithThird-Party BusinesseskThere is a contractual relationship between the Municipal Bureau of CommerceGT CorporationThere is a factual basis for providing services and charging service fees for enterprises in accordance with the contract, and at the same time applying for subsidies for enterprises in accordance with the prescribed procedures of the Bureau of CommerceGT CorporationwithThird-Party BusinessesThe transfer and payment processes cannot be used as the basis for determining the crime of fraud in this case.
First of all, according to the basic facts of this case, GT Company and the Bureau of Commerce of K City signed the Strategic Cooperation Agreement on the E-commerce Improvement Project of K City. GT company signed a project service contract with a third-party company, and the company chose to sign a service project worth X million yuan with GT company in order to strive for the most cost-effective service.
From the above basic facts, it can be seen that there is a contractual relationship between GT Company, the Bureau of Commerce of K City and the third-party enterprise, and in accordance with the express agreement of the contract, GT Company provides services worth RMB 10,000 yuan for the enterprise. In the contractual relationship between GT Company and the enterprise, the service items worth RMB 10,000 agreed by both parties are facts recognized by both parties when signing the contract, and have external contract effect. Therefore, it was not improper for GT Company to apply for a subsidy from the Commerce Bureau for a third-party enterprise in accordance with the policies and regulations of the documents of the Commerce Bureau of K City and the Finance Bureau of K City, as well as the contract between the three parties, according to the service fee of RMB 10,000 yuan.
Secondly, the value of the service content agreed in the contract between GT and the third-party company is addressed. The defender argued that each enterprise has different business status and service needs, and the corresponding service content and service period are not exactly the same, but the determination of service fees should be reached by mutual agreement, rather than on the number of agreed service items and the length of the service period.
For the project service contract signed between GT and a third-party enterprise, even if the service content and service period of different enterprises are not exactly the same, GT Company has more service content and longer service period for some enterprises, and less service content and shorter service period for some enterprises, and does not affect the service fees of different enterprises are agreed according to the same X million yuan.
In addition, the enterprise did not question the service content and service period in the process of project acceptance materials submitted to the K Municipal Bureau of Commerce, as well as the acceptance and verification process of the K Municipal Bureau of Commerce, which could prove that the third-party enterprise recognized the agreement between the third-party enterprise and GT on the service fee and the service content provided by GT.
Therefore, the case-handling organs should not conduct internal comparisons of third-party enterprises, and find that enterprises that have received relatively few services and have a relatively short service period have not received the services they have received have not reached the value of X million yuan agreed in the contract. The value of the service contract shall be determined by the agreement between the two parties, and shall not be determined by the amount of the service content.
Finally, in response to the accusations made by the case-handling authorities, there were problems in the transfer and payment process between GT and its salesmen and the enterprise. First of all, GT Company's advance payment of service fees for enterprises is in line with the "2017 K City E-commerce Promotion Work Project Application Guide" VII (III).The third-party e-commerce service provider assists the project applicant to upload the project acceptance materials and advance the corresponding funds for the financial subsidy".
In this case, regardless of the form in which the service fees for the project in question were paid, yesGT CorporationAdvance payment, or direct payment by the enterprise, orGT Corporationor the salesman lends to the enterprise in advance and then the enterprise transfers and pays, which does not affect the agreement between the two parties on the expenses involved in the project service contract.
In addition, according to the above-mentioned documents, the amount that GT Company should advance for the enterprise is the amount of subsidy that should be issued by the Commerce Bureau, but in the actual operation process, GT Company and its salesmen advance all the service fees when facing the actual needs of the enterprise's capital risk considerations, although it exceeds the scope of advance required by the documents, it is not illegal, and it is a negotiation agreement between GT Company and the enterprise, and there is no problem of deception.
FiveThird-Party BusinessesThe application materials and project acceptance materials were reviewed by the Commerce Bureau, and combined with the review process and audit content of the Commerce Bureau, the Commerce Bureau did not fall into a misunderstanding in this case, and it was not based on the misunderstanding to the enterprise orGT CorporationThe payment of the subsidy does not meet the constitutive elements of the crime of fraud.
The case-handling authorities determined that Li Moumou was guilty of fraud in this case, and the core facts were facts such as the transfer process between GT Company and the enterprise, false acceptance materials, and so on. If the crime of fraud is found to be constituted in this case, the Commerce Bureau must be in the role of an unwitting "deceived person".
However, according to the content of the "2017 Guide to the Application of E-commerce Promotion Work Projects in K City" VI. Project Acceptance Materials, the Bureau of Commerce of K City needs to review the proof materials of the enterprise's "online sales of x million yuan (e-commerce business summary table, screenshots, screenshots of sales statistics, screenshots of online marketing activities or advertisements, etc.), supporting materials for project service contracts and development, legal vouchers for actual service costs incurred in the project, financial statements, tax payment vouchers, etc.
Due to the issuance of financial subsidies, the review of the above-mentioned materials by the Bureau of Commerce of K City should not only be a formal examination, but also a substantive examination of the authenticity of the content. In the process of reviewing the financial data of the enterprise, the tax payment certificate and other materials, the commerce bureau should be clear about the actual operation of the enterprise, and should be aware of whether the enterprise meets the application conditions and acceptance standards. Therefore, in the conduct involved in the case, the Commerce Bureau did not pay the subsidy to the enterprise or GT Company based on a misunderstanding, and this case did not meet the constitutive elements of the crime of fraud, and Li Moumou did not constitute the crime of fraud.
The case-handling authority may question why the Commerce Bureau, if it knows, would indulge the existence of untrue acceptance materials, pass the acceptance and issue subsidies. In the process of handling similar cases, we found that such cases may have the problem of subsidy indicators, that is, the Commerce Bureau may appropriately relax the review and acceptance criteria in the actual operation process to ensure that the subsidy indicators are achieved and the work tasks are completed. We sincerely request that the case-handling organs conduct substantive investigation and verification in response to the above-mentioned suspicious issues.
6. GT Company and the third-party enterprise signed a project service contract of 10,000 yuan, and GT Company paid the service fee for the enterprise in advance, and then applied for a subsidy of up to 10,000 yuan for the third-party enterprise from the relevant departments. In this case, the case-handling authority may accuse the enterprise of not actually paying the service fee of RMB 10,000 agreed in the contract to GT Company, and even if it is determined that the service facts of both parties exist, GT Company also has the fact of inflating the contract amount and receiving more subsidies in violation of regulations, so the person in charge of GT Company, Li Moumou, is accused of constituting the crime of fraud.
In response to the logic of the accusation, the defender argued that, firstly, the agreement on the payment for the services involved in the contract wasGT CorporationwithThird-Party Businessesconsensual acts, which have external effectGT CorporationThe reduction and exemption of enterprises in the actual performance and fee collection process shall be protected by law;Secondly, as the defender has mentioned before, this case cannot be deniedGT CorporationRightThird-Party BusinessesThe fact that the content of the services agreed in the contract has been fulfilled, even ifGT CorporationThere are certain flaws in the performance of some enterprises, but they cannot be based on thisGT CorporationThe act of providing services and applying for subsidies for enterprises is defined as "empty gloves white wolf" type fraud without any performance;Again, even ifGT CorporationIn the process of applying for subsidy payments from the Commerce Bureau for enterprises, there was no timely feedback on the actual transfer and payment collection between the enterprises, and there was a fact of "over-receiving" in violation of regulations, but it was combinedGT CorporationThe premise of the legitimacy of the contract between the Bureau of Commerce and the enterprise, combinedGT CorporationOn the factual basis of the actual provision of services, part of the "over-received" subsidy payment should be recognized as a violation, or it may be dealt with as an administrative violationGT CorporationIt will be returned to the relevant departments in accordance with the law, and if it is only for this part of the "over-received" subsidy payment, it will be deniedGT CorporationThe premise of legitimacy in the whole case, deniedGT CorporationThe fact that the services were provided, and a negative evaluation of the whole case was obviously improper.
In addition, in this case, whether it is to examine the testimony of the relevant witnesses of the third-party enterprise, the verbal evidence of the relevant salesmen of GT Company, or the fact of whether GT Company performed the services agreed in the contract to the enterprise, and the legality of GT Company's application for subsidy payments for the enterprise, we implore the case-handling authorities to ensure that the case is evaluated from the perspective of the whole, and the facts and the nature of the conduct of the whole case cannot be determined solely on the basis of partial facts, partial testimony, and partial amounts. The overall facts are used to characterize the whole case.
To sum up, the accusation in the "Prosecution Opinion" that Li Moumou is suspected of fraud cannot be established in accordance with the law, and the defender requests that your court make a decision not to prosecute Li Moumou in accordance with the law.