According to reports, the "2023 Entrepreneur Criminal Risk Analysis Report" shows that the crime of embezzlement has been listed among the top ten high-incidence crimes for ten consecutive years. Regardless of whether it is a state-owned enterprise or a private enterprise, the trigger risk rate is the highest in daily operation and financial management. Among them, there are not a few who are accused of constituting the crime of embezzlement after being affiliated with the business. This article is a typical case.
Because there is an entry threshold for the blasting business, Wu Moumou, a shareholder of the private boss Wu Moumou Engineering Xundian Branch and Wudian Branch, signed a cooperation agreement with Qi'an Head Office, stipulating that the branch will have independent accounting, be responsible for its own profits and losses, and pay management fees every year. It was thought that the head office and the branch company essentially constituted an affiliation relationship and could freely withdraw the profits, but the court found that it was a subordinate relationship that did not have the status of a legal person, and the transfer of the profits of the branch infringed on the rights and interests of the head office, resulting in Wu Moumou, the sole actual controller of Xundian Branch and Huandian Branch, Zou Moumou, the controller of Brilliance Company, and Liu Moumou, the cashier of Huanyu Company, who were convicted of embezzlement and imprisoned in the second instance.
Recently, Wu's son and Liu's husband, Wu, submitted a criminal complaint to the Kunming Intermediate People's Court, requesting the court to retry the case.
The "affiliation" was not recognized by the court.
In September 2013, Wu Moumou signed a contract with Qi'an Corporation to establish Xundian Branch and Huandian Branch of Qi'an Corporation respectively, stipulating that "Party B's assets belong to Party B", "the branch implements independent accounting, self-responsibility for profits and losses, and operates legally and legally, and the economic and legal responsibilities arising from the illegal operation of the branch shall be borne by the branch", "the principle of who operates is responsible for the implementation of the principle of who operates", and clarified the standard for Qi'an Corporation to collect management fees.
In January 2020, Xundian Branch of Qi'an Corporation signed a "Cooperation Agreement" with Qi'an Corporation, in addition to continuing to stipulate "independent accounting, self-responsibility for profits and losses" and other contents, further agreed on the management fee standard, "Party B shall pay Party A a management fee of not less than 100,000 yuan per year, and less than 100,000 yuan shall be calculated as 100,000 yuan".
According to the agreement, the construction costs, material costs, labor costs and other operating costs required in the operation process of the branch are raised and paid by the branch itself, and the head office of Qi'an does not need to make any investment in the project and does not bear the operating risks.
Wu Moumou believes that this is an affiliation, and since it is an affiliation, he can freely withdraw the profits. However, in the end, it was determined by the public security organs that his act of transferring the profits of the branch had infringed on the rights and interests of the head office, and the public security organs found the crime of embezzlement against Wu Moumou, the actual controller of the branch, and Liu Moumou, an employee of the company.
In 2023, the Chenggong District People's Court of Kunming City found in the first instance that Wu Moumou and Liu Moumou had illegally transferred the funds of the branch to their own property by signing false contracts and issuing false invoices, which constituted the crime of embezzlement, and sentenced Wu Moumou to ten years in prison and Liu Moumou to four years in prison. The defendant appealed, and the Intermediate People's Court of Kunming City, Yunnan Province, upheld the original judgment on July 7, 2023.
The defendant was not satisfied, and Wu's son submitted a criminal complaint to the Kunming Intermediate People's Court.
The defendant complained that the Qi'an head office involved in the case and the two branches had an affiliation relationship of independent accounting and independent operation, and that Wu Moumou's withdrawal of the profits of the branch did not infringe on the interests of the head office, and did not meet the elements of the crime of embezzlement. Liu's act of hearing instructions to participate in the transfer should not constitute a crime.
According to the relevant provisions of the Criminal Law, the object of infringement of the crime of embezzlement in public office is the property ownership of a company, enterprise or other unit.
According to the first-instance judgment, Wu Moumou believes that the contract signed by the two parties to determine the affiliation relationship is a cooperative relationship. As long as the management fee is paid, there is no problem of infringing on the interests of the head office, there is no property loss of the head office of Qi'an, and there is no fact of embezzlement of duties.
Wang Huakun, the former legal representative of Qi'an head office, believes that "when Yunnan Qi'an blasting project was established, it signed a "cooperation agreement" with the person in charge of the branch at that time, which was a contracting contract, and the person in charge at that time contracted to operate the branch, and implemented independent operation to bear its own profits and losses. ”
In the first-instance judgment, the court stated that the "Cooperation Agreement" signed by Yunnan Qi'an Blasting Engineering and its branch violated the "Company Law" and did not recognize the content of the agreement. It is believed that all the acts of the branch should comply with the provisions of the Company Law, and the funds in the account of the branch belong to the assets of the head office before they are processed through legal channels. (The second-instance judgment fully endorsed the views of the first-instance trial).
The branch's means of withdrawing profits caused controversy, and the relevant person was sentenced.
Xundian Branch and Wudian Branch are independently invested and operated by Wu Moumou, and are the only shareholders, actual controllers, and income recipients.
The court found that Wu Moumou took advantage of his position to transfer a large amount of funds out of the branch by signing false contracts and issuing false invoices without real business, so as to increase expenditures, reduce profits and taxes, and illegally appropriated the company's funds without the financial audit of the head office and without his knowledge. Because Wu's means of withdrawing the profits of the branch were found to be illegal by the court, the relevant person Liu Moumou was convicted of the crime of embezzlement.
The complainant argued that since it had been agreed that the remaining profits would be attributed to the branch, the property rights of Qi'an head office would not be infringed upon when the profits of the branch were withdrawn, regardless of whether they went through the audit process of the head office.
Liu Moumou believes that she has not issued fake invoices, nor has she engaged in cashier-related work, Wu Moumou asked her to transfer money, and she just transferred money according to their ** instructions.
Liu's husband, Wu, said that Liu only received a salary of 6,000 yuan per month, and that there was no illegal profit during the entire incident, and that he only played the role of an "operator", and should not be found guilty of embezzlement.
The lawyer reminds that it is very important to clarify the affiliation relationship when operating a business.
Affected by factors such as business model and business environment, enterprises and entrepreneurs may face criminal risks due to insufficient awareness of legal risks in the process of starting and operating businesses. According to the "2023 Entrepreneur Criminal Risk Analysis Report", the crime of embezzlement has been listed among the top ten high-incidence crimes for ten consecutive years. Regardless of whether it is a state-owned enterprise or a private enterprise, the trigger risk rate is the highest in daily operation and financial management.
Among them, there are not a few who are accused of constituting the crime of embezzlement after being affiliated with the business. Once the relevant risks occur, it will lead to damage to the image and reputation of the enterprise. Employees may also be implicated as a result, affecting the stability of the company's operations.
Liu Ling, a senior partner at Beijing Jingjing Law Firm, said that when an enterprise signs a contract with an affiliated entity, it is very important to clarify the nature of the affiliation, which is the key to avoiding legal risks and taking preventive measures in advance in the future.
The "Opinions of the Communist Party of China on Promoting the Development and Growth of the Private Economy" issued in July 2023 emphasized that it is necessary to adhere to the equal emphasis on crime and governance, actively and steadily promote the compliance reform of the enterprises involved in the case, and at the same time pursue criminal responsibility in accordance with the law, give the enterprises involved in the case the opportunity to turn over a new leaf, solve the deep-seated legal problems that restrict the development of enterprises, promote the compliance and law-abiding operation of enterprises, and ultimately achieve the purpose of saving enterprises, standardizing the development of the industry, and ensuring the orderly operation of the economy.