On January 22, 2016, the Ministry of Public Security handed over the clues of the Hohhot City Office of Asset Management Company A (hereinafter referred to as Company A) to the Inner Mongolia Public Security Bureau for review. The Inner Mongolia Public Security Department launched a preliminary investigation of Company A, and on March 25, 2016, the relevant staff of the unit were investigated on suspicion of committing the crime of dereliction of duty by personnel of state-owned companies, enterprises and institutions (handled in a separate case). In the initial investigation, it was found that Wang, a lawyer for Company A's litigation recovery business, registered and established B Investment Consulting Company (hereinafter referred to as Company B) in Beijing in the name of another person on April 8, 2013, and purchased the creditor's rights involved in the case of Company A in the name of the company for litigation recovery, and the whistleblower of the case was listed as the defendant in the litigation recovery case, which triggered the case.
On August 11, 2016, the Inner Mongolia Public Security Department filed a case against Wang and found that on March 4, 2009, Wang registered and established C Investment Consulting Company (hereinafter referred to as Company C) in Beijing in the name of another person, and purchased a creditor's right package of 5 creditor's rights from Ding Asset Management Company (hereinafter referred to as "D Company") in the name of the company, and recovered it in the name of Company C, the specific facts are as follows.
1.The fact that Wang purchased the financial non-performing loans of Company A.
In December 2000, Company E borrowed 29.5 million yuan from the Haidian District Branch of a bank, but failed to repay it when it expired. On August 9, 2002, after winning the judicial procedure, the Bank divested the above-mentioned creditor's rights to the Beijing office of its asset management company (hereinafter referred to as the "Company") on June 28, 2004 because it had no property available for enforcement, and on November 29, 2002, the Bank transferred the creditor's rights to the Beijing Office of the Geng Asset Management Company (hereinafter referred to as the "Geng Company"), and on June 5, 2011, the Geng Company transferred the creditor's rights to Company D, and Company D transferred the creditor's rights to Company A on July 5 of the same year. After Company A obtained the creditor's right, it set up a project team and signed the General Risk Agreement with a law firm on June 15, 2012, and the lawyer team of Mr. Wang pursued the creditor's right.
On July 6, 2012, Company A filed an application with the Beijing No. 1 Intermediate People's Court to add six shareholders (the company) of Company E as the persons subject to the application for enforcement. The enforcement judge of the case informed Wang's team that, except for the fact that Company A (one of the shareholders) may have made false capital contributions, if other companies want to be held liable, they should file a separate lawsuit with the court instead of filing an additional application in the enforcement procedure. Lawyer Peng Mouping, a member of Wang's team, made an explanation of the situation on March 12, 2013 and informed Company A of the above situation, and lawyer Ling sent Wang a statement of information consistent with the above content by email on March 13, 2013, and Wang did not transfer the statement of information sent to him by Ling to Company A. On November 18, 2013, Company A listed and transferred the non-performing asset claims on a financial asset exchange. Company B, controlled by Wang, purchased the debt for 1.95 million yuan on December 6 of the same year and filed a lawsuit to recover it. After the Inner Mongolia Public Security Department filed the case for investigation, Company A coordinated with Wang, and Company B returned the debt to Company A on May 13.
2.The fact that Wang purchased the creditor's rights of Company D includes the creditor's rights of 5 households.
On December 19, 2007, Company D received a batch of bank non-performing assets debt packages from Geng Company. On April 3, 2008, Company D and Company Geng agreed to jointly establish Xin Asset Management Company (hereinafter referred to as Xin Company), which is a subsidiary of Company D, and was entrusted by Company D to dispose of non-performing assets and pursue litigation in the name of Company Geng. From December 12, 2007 to June 7, 2011, a law firm signed a special legal affairs consultant contract with Company D and other agreements related to creditor's rights, and Wang, as a lawyer assigned by a law firm, to provide legal services for the realization of five creditor's rights.
On September 1, 2009, Xin Company demanded that Ren Energy Group (hereinafter referred to as Ren Group), a shareholder of Company B (one of the debtors), bear the joint and several liability for the repayment of Company B's debts and repay the principal and interest totaling more than 66.8 million yuan. In March 2010, Ren Group negotiated with Chen Moushu, Yuan Moubiao and Wang, the persons in charge of creditor's rights of Xin Company, to offset the debt with rent for many times, but Xin Company vetoed it. Later, Wang proposed to indirectly solve the debtor's debts by introducing the introduction of the financing of the De Asset Management Company (hereinafter referred to as the De Company) for Ren Group through his personal ability and social relations, but it is uncertain whether it can be realized.
On June 7 and August 12, 2010, Mr. Wang and Company C, which he controlled, submitted requests to Xin Company to acquire five creditor's rights packages and submitted relevant materials. On July 22, Xin Company received a letter of intent from Mr. C to acquire Company C submitted by Mr. Wang, and Mr. Chen and Mr. Yuan drafted the "Request for Instructions on the Plan for the Transfer and Disposal of Non-performing Debt Project Packages" based on the letter of intent for acquisition, and reported to Company D and obtained consent. On September 26, Yin Energy Investment Company (hereinafter referred to as Yin Company), Mao Science and Technology Development Company (hereinafter referred to as Mao Company) and Company C adopted the form of bid-rigging to submit a letter of intent to Company D to acquire 5 debt packages, and Company C paid a deposit of 9 million yuan. The next day, Yin Company signed an asset transfer contract with Ding Company and obtained 5 creditor's rights. On July 25, 2011, Yin Company signed an asset transfer contract with Company C to transfer the creditor's rights package to Company C, and Wang paid the purchase price of 15 million yuan.
In June and November 2011, Ren Group signed two contracts with the company, and implemented the debt investment plan on December 30. On December 29, 2011, Company C negotiated and signed the Financial Advisory Agreement with Ren Group and its subordinate power plants; From January 6, 2012 to April 26, 2012, it collected 25.2 million yuan in service consulting fees from the three power plants under the Ren Group. On November 26, 2015, Company C obtained the title certificate of one other debtor's house through judicial procedures. The other 3 creditor's rights have not been realized until the time of the case.
Inner Mongolia Autonomous Region High People's Court (2020) Nei Xing Zhong No. 123 Criminal Ruling).
[Case Focus].
Whether defendant Wang's conduct constituted the crime of fraud.
[The gist of the court's ruling].
The Intermediate People's Court of Hohhot City, Inner Mongolia Autonomous Region, held that in the case of Company A, although Wang did not promptly inform Company A of the content of the recovery that should be recovered in the lawsuit, Peng Mouping and Ling of Wang's team had informed Company A, so there was no necessary causal relationship between Wang's behavior and Company A's voluntary act and value judgment of transferring the creditor's rights to the outside world. Even if Wang's act of accepting Company A's creditor's rights constituted fraud, because Wang had returned all the creditor's rights obtained to Company A before the case was filed, Company A did not suffer losses, and Wang's behavior did not constitute the crime of fraud because he ultimately did not obtain property.
In the case of Company D, when Wang filed a lawsuit to recover the non-performing assets of Company D, he had gone through judicial procedures such as litigation and enforcement, and issued a legal opinion to the client Company D and Xin Company on the situation that his ** creditor's rights could not be realized in the short term. Therefore, Company D's public transfer of the creditor's rights package involved in the case in accordance with the principles and procedures for disposing of non-performing asset claims was not based on a misunderstanding of the disposal of property.
How and how much Wang actually realized the non-performing asset claims had nothing to do with Company D. If a non-performing asset holder obtains a relatively good return on creditor's rights due to the acquisition, it will inevitably expand the scope of the criminal law's crackdown, break through its legislative intent, and belong to the situation of meddling in economic disputes by criminal means.
As for the realization of Company B's creditor's rights in the creditor's rights package involved in the case, the plan of Wang and the relevant leaders of Company D to negotiate with Ren Group, the parent company of Company B's shareholders, to offset the debts with house rents was vetoed by Company D. After Wang obtained the ownership of the creditor's rights package from the company under his actual control, through his own social relations and business level, he finally made efforts to offset the debt in disguised form by charging financial advisory service fees, and there was no causal relationship between Company D's desire to entrust Wang's creditor's rights to be realized; Although the realization of the latter 1 creditor's rights was obtained by Wang through the court's judicial procedures after Wang obtained the creditor's rights package, the evidence in the case was insufficient to prove that Wang had known the basic status of the seized house before acquiring the creditor's rights package, so there was no fact of concealing the truth; The other 3 creditor's rights have not been realized until the time of the case, so it is impossible to determine the specific amount obtained by Wang.
Moreover, the evidence in the case can prove that Company D did not lose money in accordance with the proportion of the creditor's rights realized by disposing of non-performing financial assets, so although Wang's act of transferring Company D's creditor's rights package from Company C, which he actually controlled, was unreasonable, it could not eliminate reasonable doubt and achieve the uniqueness of the evidence for determining the criminal offense, so it did not meet the constitutive elements of the crime of fraud, and Wang did not constitute the crime of fraud in accordance with law.
The Intermediate People's Court of Hohhot City, Inner Mongolia Autonomous Region, ruled that the defendant Wang X was not guilty in accordance with the provisions of Article 200, Items 2 and 3 of the Criminal Procedure Law of the People's Republic of China.
After the verdict was pronounced, the People's Procuratorate of Hohhot City, Inner Mongolia Autonomous Region, filed a protest on the grounds that "Wang deliberately concealed key facts, causing Company A and Company D to have a misunderstanding of the legal status and value of the creditor's rights involved in the case, and finally transferred the creditor's rights to Wang at a low price, causing economic losses, and Wang's behavior constituted the crime of fraud", and the People's Procuratorate of Inner Mongolia Autonomous Region supported the protest.
The High People's Court of the Inner Mongolia Autonomous Region held after trial that the facts involved in the two cases of defendant Wang did not constitute the crime of fraud, for the following reasons.
1.Facts about Company E's claims.
The evidence in the case proves that Company A knew the relevant facts that the shareholder should bear the debt liability before transferring the creditor's rights, and Wang found the problem of false capital contribution by the shareholders of Company E and informed Company A that it had fulfilled the duty of the lawyer and did not conceal the truth. Wang informed Company A of the clues of the recovery of the creditor's rights, and Company A applied for the addition of 6 companies as the persons subject to enforcement in the enforcement procedure, and there was no misunderstanding due to Wang's deception. The reason why Company A made the decision to dispose of the auction claims was that it had made an internal assessment of the shareholder's likelihood of repaying the debts, and it was indeed insolvent, and from a legal point of view, it was impossible to require other shareholders to bear joint and several liability for false capital contributions. Company A did not fall into a misunderstanding because of Wang's behavior, and there was no causal relationship between Company A's disposition of the transfer of creditor's rights and Wang's behavior.
2.Facts about the claims of 5 companies including Company B.
The entrustment agreement of Company B's creditor's rights stipulates that Company D entrusts a law firm to provide special legal services, which does not involve the disposal of the rights of the entrusted asset entity, and Wang's act of introducing an investment plan does not fall within the scope of the work responsibilities of **creditor's rights. In addition, although Wang borrowed the name of Xin Company to negotiate with Ren Group, with the help of the platform of Ding Company, the investment plan, project introduction, and negotiation with the investor were all facilitated by Wang's personal ability, and neither Ding Company nor Xin Company participated substantively, and the labor consulting fees were exclusive and should be attributed to Wang himself, who actually contributed to the investment. The impropriety of Wang's behavior lies in the use of the entrusted party's platform for himself, which is an act against good faith, rather than an act of failing to inform Company D of his work results.
Xin Company's decision to dispose of the five creditor's rights of Company B and other five households was not caused by Wang's concealment of the progress of the investment negotiations, and there was no necessary causal relationship between the two. After Xin Company learned that there was a situation of abuse of shareholder power by Ren Group in the project of Company B and the clues that it should bear the debts of Company B, Xin Company planned to file a lawsuit against Ren Group, but finally gave up the litigation route and adopted the method of auctioning the creditor's rights, because after comprehensive consideration, Wang bid 15 million yuan to acquire the creditor's rights, which could make the creditor's rights achieve a very high profitability and return the funds in a timely manner. At the time of Company D's transfer of creditor's rights, there was no evidence to prove that the financing plan would be successful, and it could not be determined that Wang's concealment would inevitably lead to Company D's losses. The 15 million yuan ** creditor's right was completely priced by Company D, although Wang suggested the selling price of Company D's debt through the controlled company C, but in the end, it was still priced by Company D, and the profitability rate of 15 million yuan ** debt was as high as more than 100%, and Wang purchased it with this **, and there was no problem that Wang caused the loss of Company D.
To sum up, Wang violated the relevant laws and regulations on financial assets by purchasing the non-performing debts recovered by the company he actually controlled, but his behavior did not constitute the crime of fraud. The procuratorate held that Wang had concealed the facts, and that Company A and Company D had fallen into a misunderstanding because of Wang's behavior, and that the protest opinion that had caused losses by making a decision on property disposal had no factual and legal basis and was not adopted.
The High People's Court of the Inner Mongolia Autonomous Region, in accordance with Article 236, Paragraph 1, Item 1 of the Criminal Procedure Law of the People's Republic of China, rules as follows:
The protest was rejected and the original judgment was upheld.
[Lawyer's postscript].
The focus of the dispute in this case is whether non-performing financial assets can be used as the target of the crime of fraud and whether the defendant Wang's conduct constitutes the crime of fraud.
Financial non-performing assets refer to bank assets that are in a state of non-good operation, cannot bring normal interest income to the bank in a timely manner, and even make it difficult to recover the principal, mainly referring to non-performing loans, also known as non-performing loans. Its characteristics are: (1) there is no definite value, because there is no clear property clue, the responsible party has no willingness and ability to repay, it is difficult to repay through the normal legal collection procedure, and it is difficult to predict whether there is a possibility of repayment, etc., and what the purchaser buys is the opportunity to continue to claim the claim against the responsible party and the uncertain interest of realizing the claim and the risk that the claim cannot be repaid, not the specific amount of repayment that has been obtained or will be obtained in the future.
2) The transaction is agreed by the buyer and the seller, and the essence is to judge the possibility of repayment after the creditor's right, and different people evaluate the value of the same creditor's right, and the economic value of the non-performing debt is also closely related to the "point in time", and it is impossible to accurately judge the specific impact of a certain factor on the transaction, nor how much economic loss may be caused.
3) Allowing the transferee to make a profit is the cornerstone of the existence of the non-performing debt trading market, and the transferee may have newly discovered property clues after purchase, or integrate a variety of social resources to create new solutions based on its own ability, which is to legally obtain profits after bearing the transaction costs and risks, and in addition to the value of the creditor's rights themselves, it also attaches the value of the transferee's own ability.
4) Most of the transactions** are much lower than the book principal and interest amount, because the debtor has no solvency and refuses to perform the repayment obligation, resulting in a huge difference between the realizable amount of the creditor's rights** and the amount of principal and interest. Specifically, in this case, the creditor's rights involved in the case had been transferred several times before the transaction, and the judgment of the former company, Geng company and company A on the project of company E was that "it was impossible to estimate the actual situation", and the judgment of company Ji, company Geng and company D on the five creditor's rights was "difficult to repay".
Based on the above characteristics, we can analyze the nature and characteristics of non-performing debts: it is not a property with a fixed real value, and most of its recovery methods are realized through litigation, because of its "non-performing" nature, even if there is an effective judgment of the court, it is only a possibility of recovery in the legal sense, strictly speaking, it is only a property interest that cannot be determined, so China's law does not clearly stipulate the basis for determining the value of non-performing debts.
On the other hand, in this case, the investigating agency entrusted an appraisal agency to make two appraisal reports based on the transaction date, and the appraiser appeared in court to confirm that the premise of making the appraisal results was that the debtor was able to repay in a timely manner and had sufficient willingness to repay, but this assumption was not valid, and it did not conform to the nature and characteristics of non-performing debts, and non-performing debts had different values in the hands of different rights holders. Therefore, the value of non-performing debts cannot be determined by appraisal, and the amount of the crime should not be determined by appraisal.
In terms of nature, non-performing debts cannot be the target of the crime of fraud, because the object of the crime of fraud is limited to "property that can determine the objective economic value", while the non-performing debt is neither property nor can determine the objective value, and there is no legal basis for treating "non-performing debt transactions" as the crime of fraud.
In addition, the establishment of the crime of fraud also requires the victim to suffer losses, and the amount of losses of Company A and Company D in this case cannot be determined, and the creditor's rights have been returned to Company A before Wang is filed, and Company A is considered to have suffered no losses, and Company D not only has no loss but also has a profit rate of more than 100% based on the purchase and the creditor's rights involved in the case, so it cannot be determined that Company A and Company D have suffered losses due to Wang's conduct.
Based on the above summary, Wang's purchase of the non-performing debts recovered by his ** with the company under his actual control did violate the relevant laws and regulations on the transfer of financial non-performing assets, but his behavior did not constitute the crime of fraud.