"After you transfer the company's funds to your personal account, do you use them?" Fang Yi asked.

"I didn't use it, I just wanted to transfer the company's funds to avoid being discovered by creditors who came to collect debts." Zhong Lanying said.

"Is your company's property independent? I mean, do you withdraw funds directly from the company's bank account when your family needs to spend money, or when you spend money personally? Fang Yi asked.

"No, absolutely not. The company's property belongs to the company, and our family's property belongs to our family, and the division is very clear. I see what you mean, there is absolutely no case of mixing up. I've been in business for decades, and I still know the risks. Zhong Lanying said.

"Well, I see." After Fang Yi finished writing the last stroke, he put away the pen and paper: "I will go to the court to read the file, and I will come back to meet again after the defense plan is finalized." ”

After leaving the detention center, Fang Yi found that there was a missed call, it was Liu Shanshan, he went back, and Liu Shanshan warmly invited him to a restaurant in the city to eat, and talked while eating. Fang Yi looked at the time and hurried over.

When Fang Yi entered the hotel, Liu Huashan frowned and Liu Shanshan was talking about something.

"Lawyer Fang, how is my mother?" After everyone finished ordering, Liu Shanshan asked.

"Your mother is in a good mental state, according to what she said, Lanying Company still owes about 820,000 yuan to material suppliers and processors." Fang Yi said.

"If we help my mother repay this money, will the court consider it and sentence my mother a few years less?" Liu Shanshan asked.

"If all debts are repaid and the creditor's losses are minimized as much as possible, the court will consider it when sentencing. It would be even better if the creditor could issue a letter of understanding. Fang Yi said.

"Okay, let's figure this out." Liu Huashan heard that paying off the debt was beneficial to his daughter-in-law's case, so he hurriedly said.

"In the afternoon, I will go to the court to read the file, and in a few days I will contact you and tell you the final defense plan." Fang Yi said.

When Fang Yi returned to the law firm from the next city, it was already past six o'clock in the evening. After coming back, while he still had an impression of the content of the meeting in his mind, Fang Yi began to work overtime while flipping through the case file while recalling what Zhong Lanying said when he met in the detention center, finding out the differences, analyzing and confirming them.

When handling a case, the words of the parties cannot be fully believed, and what they say is based on their own position, which is very subjective, and in fact, many contents will be different from the facts, which requires the lawyer to use common sense and evidence in the case file to verify and compare.

Of course, when the public prosecution has no evidence and the parties have no evidence, Fang Yi is very willing to believe the words of the parties, and will do his best to develop for the parties. After all, the lawyer's defense is to protect the legitimate rights and interests of the client, or to put it bluntly, to save the client from prison.

Four days later, Liu Shanshan and Liu Huashan walked into the law firm conference room again, today it was Fang Yi who asked them to come over, and in the past few days, Fang Yi has figured out the context of the whole matter, also checked the relevant information, and determined the defense plan.

"Lawyer Fang, how are things?" As soon as Fang Yi entered the conference room, Liu Shanshan asked eagerly.

"I have read the case file materials provided by the public prosecution and have made a preliminary judgment that the charges charged by the procuratorate against your mother (contract fraud, personal crime) cannot be established. However, your mother's Lanying company constitutes the crime of contract fraud, and your mother, Zhong Lanying, as the actual controller and legal representative, will still be held legally responsible. Fang Yi said.

"Lawyer Fang, is this the corporate crime you mentioned earlier?" Liu Huashan asked.

"Yes, I think the case is a corporate crime, not a personal crime." Fang Yi said.

"How many years will my mother be sentenced to?" Liu Shanshan asked.

"The specific sentencing depends on how the judge views the case. A few days ago, I wanted to go to the procuratorate to communicate with the prosecutor in charge of the case, but the prosecutor said that he was very busy and had to go on a business trip and did not have time to receive him. Let me mail him the lawyer's opinion.

You see, here's my call log, I recorded the sound. I can show it to you. Fang Yi said that he was about to play the recording.

"Lawyer Fang, no, we believe in you. Don't use suspicious people, don't suspect people. Liu Huashan said with a smile.

Fang Yi's recording was not to deal with the prosecutor, but to show the client what he had done, so that the client would not feel that the lawyer was taking money and not doing things.

"Well, the lawyer's opinion has been mailed to the prosecutor. However, I don't think the procuratorate will take my opinion, otherwise they wouldn't have taken this attitude.

By the way, how is the repayment of the arrears? Fang Yi put away his phone and said.

"We've raised a lot of money, and there's still a little bit of a funding gap, so we should be able to get it all back to the material dealers and processors next week. We communicated with the other party before, and the other party said that if they were compensated for all their losses, they could consider issuing a letter of understanding. Liu Shanshan said.

"Well, the court will be in a week, and if possible, try to pay off all the arrears before the trial." Fang Yi said.

As soon as Fang Yi returned to his workplace, Ouyang Jie called and asked Fang Yi to help him find a lawyer who did non-litigation, and he got a legal due diligence project through his father's relationship, with a cost of 100,000 yuan, in other provinces.

Fang Yi thought of lawyer Sima Jun, if you want to say that lawyer Sima is not professional, it is just a playing card face, which makes people feel that they are always rejecting people thousands of miles away, and they are a little uncomfortable. Fang Yi tried to send her WeChat, and after a while, Sima Jun replied to him: Yes, you need to be interviewed.

Two days after Fang Yi introduced Sima Jun to Ouyang Jie, Ouyang Jie sent news that the cooperation was negotiated. Later, on the phone, Ouyang Jie asked Fang Yi: "Has Lawyer Sima's facial muscles been injured and undergone surgery?" ”

Fang Yi was confused and said, "What's wrong?" ”

"I talked to her for more than an hour, and her face was like a mask, and there was no change of emotion at all, and I don't know if she was happy or dissatisfied.

I asked weakly, will Lawyer Sima laugh? Ouyang Jie asked.

Fang Yi didn't expect Ouyang Jie to gossip like this. Oh, yes! Will lawyer Sima Jun laugh? Fang Yi suddenly remembered that he seemed to have seen her smile, it was very good-looking!

Soon, Zhong Lanying's case was opened, and the trial took place: the district court of the city next door, the 18th courtroom, at half past nine in the morning.

Sitting on it sat a bespectacled, emaciated male judge, who was sitting the case alone, and the prosecutors were two women. There were more than a dozen people in the auditorium, and the father and daughter of the Liu family sat in the middle.

Defendant Zhong Lanying sat in the defendant's dock, looking very calm, and listened expressionlessly as the prosecutor read out the indictment.

“…… The victim units came to collect the arrears many times, but Zhong Lanying refused to pay the raw materials and processing fees worth more than 900,000 yuan to the victim units on the grounds that they had not yet received the payment.

Subsequently, the defendant Zhong Lanying transferred the funds in Lanying's company's account to his personal account in batches, or withdrew cash in the name of travel expenses, etc., and used the above methods to transfer the company's property.

After the case was discovered, Zhong Lanying still caused direct economic losses totaling more than 820,000 yuan to the victim unit after paying part of the payment. Before the trial of this case, Zhong Lanying's family actively raised 824,000 yuan to compensate the victim's economic losses.

We believe that the defendant Zhong Lanying constituted the crime of contract fraud, and comprehensively consider the facts, circumstances, amount of the crime, harmful consequences, attitude of admitting guilt and repentance, and restitution of economic losses, and other circumstances, and recommend that the defendant Zhong Lanying be sentenced to 10 years imprisonment. Complete. With that, the female prosecutor put down the indictment.

"Defendant Zhong Lanying, did you hear clearly the indictment read out by the prosecutor just now? Do you have any objection to the facts and charges of the crime charged against you in the indictment? The male judge asked.

"I have no objection to the facts of the crime, but I have objections to the charges, I have no intention of committing the crime, the contract was signed by the company, I am only a shareholder and actual person in charge of the company, and I am willing to bear the corresponding responsibility." Zhong Lanying said calmly.

After all, she has been in business for so many years, and she is older, she has seen a lot, and her heart is good. Although she doesn't want to go to jail, but the matter has come to this, sitting in the court, she can only accept the punishment of the law, and only hopes that the court will sentence her for a few years less.

"The prosecutor may interrogate the defendant about the facts of the crime charged in the indictment." The male judge said.

"Defendant Zhong Lanying, when the victim unit came to you to find the processing fees and materials you wanted, did Lanying Company have already received the payment?" The female prosecutor asked.

"Roger." Zhong Lanying said.

"Since you have received the payment for the goods, why don't you pay the victim unit." The female prosecutor asked.

"Because, during this period before the Chinese New Year, many units need bridge funds, and I want to take advantage of this time to let Lanying Company make more money." Zhong Lanying said.

"How did you hide the funds of Lanying Company?" The female prosecutor asked.

"I transferred Lanying's funds to my own account by making false accounts, and withdrew some cash by reimbursing travel expenses." Zhong Lanying said.

"How much is reimbursed?" The female prosecutor asked.

"Very little, about one or twenty thousand, I can't remember." Zhong Lanying thought for a while.

"How many shareholders does Lanying have? Who is in charge of the business? The female prosecutor asked.

"Lanying Company is a one-person limited company, only one shareholder, I am the legal representative and general manager, and I have the final say in the company." Zhong Lanying said.

"Inquisitor, I'm done!" The female prosecutor said.

"Next, the defendant Zhong Lanying's defender will ask questions to the defendant." The male judge said.

"Defendant Zhong Lanying, does your company have a corresponding property system?" Fang Yi asked.

"Yes, we file our tax returns to the tax authorities on time every year, and we have two financial personnel, who usually carry out financial management according to the requirements." Zhong Lanying said.

"How often do shareholders or executives borrow money from the company?" Fang Yi asked.

"Lanying Company has a reimbursement and borrowing system, and there are few executives who borrow money from the company, and employees have to withdraw expenses in advance when they go on business trips. However, the corresponding invoice will be submitted for financial processing at a later stage. Zhong Lanying said.

"After you transfer the funds from Lanying Company to your personal account, is there any payment? Are you using the funds for spending? Fang Yi asked.

Zhong Lanying only withdrew 10,000 or 20,000 yuan in cash by reimbursing travel expenses, which was basically negligible, so Fang Yi focused on the funds in the bank account.

"No, it's not easy for a physical enterprise to do these days, and our company doesn't have much money left except for paying employee salaries and paying rent. So although the funds went into my personal bank account, I didn't dare to use them. Zhong Lanying said.

"You just said that you want to take advantage of the end of the year to release this money in the name of Lanying Company and make money as bridge funds, have you actually done it?" Fang Yi asked

"No, because I don't know a lot of the capital demanders, so I don't dare to lend." Zhong Lanying said.

"Why are you doing the loan in the name of the company?" Fang Yi asked.

"Because the funds belong to the company, the company still has many employees waiting for the New Year, and I will transfer the funds back to the company to do business and operate the company later." Zhong Lanying said.

The prosecutor asked the question to prove that Zhong Lanying had committed contract fraud, and Fang Yi asked the question to tell the judge that the company is a company and the individual is an individual, and Zhong Lanying has never used the money from beginning to end. Her purpose in transferring the company's assets was not to embezzle the company's assets, but to benefit the company.

Of course, judging from the current situation, this is true, but if Zhong Lanying is not arrested, it is difficult to say how she will arrange this fund. But that's not something Fang Yi has to think about, taking people's money has to do things for others, he doesn't want to think about things that haven't happened, and there is no need to delve into it.

……

"The facts of this case have been investigated, the court investigation has been completed, and the court arguments are now begining. Court debates revolve around disputed facts that have not been certified by the court and how the law should be applied based on the facts.

The prosecutor will speak first. The male judge said.

"After investigation, Lanying Company is a one-person limited liability company, and we believe that the defendant Zhong Lanying, as a shareholder and actual controller of Lanying Company, transferred the property of Lanying Company for his own selfish interests and concealed it for his own selfish interests, and his behavior has violated the criminal law and constituted the crime of contract fraud. The court is requested to adjudicate in accordance with the law. The female prosecutor said.

"The following is the defense of the defendant Zhong Lanying." The male judge said.

"I don't have the idea of embezzling the company's property, the reason why the property is transferred is for the company's interests, not for my personal interests......" Zhong Lanying held an A4 paper in her hand, speaking unhurriedly and very organized.

What she said was what she summarized after Fang Yi met with her for the last time to communicate the defense plan.

"Ask the defender to give a defense." The male judge said.

“…… Although Lanying Company is a one-person limited company, it has a complete governance structure and is financially independent of the actual controller. The public prosecution charged Zhong Lanying with the crime of contract fraud, but the available evidence was insufficient to prove that Zhong Lanying used the payment for the goods for her personal expenses, so the evidence for the prosecution's accusation that Zhong Lanying committed a personal crime was insufficient.

The defender believes that defendant Zhong Lanying's conduct was entirely for the benefit of the company, which conformed to the characteristics of a crime committed by a unit, and should be a crime committed by a unit. In view of the fact that the defendant and his family actively raised funds to compensate the victim's unit for its losses, and the defendant pleaded guilty and repented sincerely, the court was requested to reduce the defendant's criminal punishment as appropriate.

The defender suggested that the court sentence the defendant Zhong Lanying to a suspended sentence. Complete. Fang Yi said.

"The prosecutor may respond to the defense opinions expressed by the defender." The male judge said.

"The prosecutor believes that Lanying Company is a one-person limited company, and in essence, it cannot be effectively distinguished from Zhong Lanying, the shareholder and actual controller of the company, in terms of personality, will, and interests.

As the name suggests, a one-person limited company has only one shareholder, and the capital contribution and operation are all done by the shareholder, and the interests are also attributed to the specific shareholder, and there is no independent interest of the company, and the company's property and the shareholder's personal property cannot be distinguished.

Lanying Company is a one-person limited company, and the shareholder Zhong Lanying controls all the company's business activities, and the will of the company and the will of the shareholders cannot be distinguished, and the company has no independent will.

This is inconsistent with the characteristics of the subject of unit crimes stipulated in the Criminal Law, so the crimes committed by a one-person limited company can only be treated as individual crimes, and cannot constitute unit crimes. Complete! The female prosecutor said.

"Defendant Zhong Lanying's defender can respond to the prosecutor's opinion." The male judge said.

"Okay. The defence disagreed with the prosecutor's remarks about the independence of the one-person limited company.

According to the provisions of the Company Law, a one-person limited liability company refers to a limited liability company with only one shareholder (natural person or legal person) and the shareholder holds all the capital contributions of the company.

It is entirely possible for a one-person limited liability company to have an independent legal personality, and the only difference between it and a traditional limited liability company is the number of shareholders. Since the number and identity of shareholders have nothing to do with the establishment of a unit crime, it is entirely possible that a one-person limited company will constitute a unit crime.

The defender did not deny that due to the particularity of a one-person limited company, it is easy for related party transactions between the investor and the company to lead to confusion of personalities, and the personality of a one-person limited company is unstable because of the singleness of its shareholders. However, the independence of a one-person limited company cannot be denied on this basis.

The defender believes that the following criteria should be used to determine whether a one-person limited company in a specific criminal act has an independent personality:

1. Whether it has independent property interests.

The property of the company and the property of the contributors must be able to be separated, and the property status of the company must be independent. If the company's property cannot be sustainably independent of the shareholder's property, and the two are mixed, then the company will lose its independent personality, the company's property will become the personal property of the shareholder, and the criminal act carried out in the name of the company can only be the personal act of the shareholder, not the unit.

As far as this case is concerned, judging from the evidence provided by the prosecutor so far, there is no evidence to prove that Zhong Lanying's personal property has been mixed with Lanying's company. Therefore, the property of Lanying is independent.

2. Whether a one-person limited company has an independent will.

Whether the will of a one-person limited company is independent is a substantive element in judging whether it has the qualifications of a unit criminal subject. The shareholders and managers of Lanying Company are the same person, and although the will of the one-person limited company comes from Zhong Lanying, the sole shareholder, it cannot be confused with the will of a natural person.

The signing of the material supply contract and processing contract between Lanying Company and the victim unit was a specific act carried out by shareholder Zhong Lanying for the benefit of the company within the scope of authority stipulated in the law and the articles of association, and Zhong Lanying's behavior should be regarded as a decision of Lanying Company, not Zhong Lanying's personal will.

Of course, it also depends on whether the rights are abused, if the shareholders of a one-person limited company commit contract fraud in the name of the company in order to repay personal debts, and the benefits belong to the individual, then the company has become a tool for individual crimes, and obviously cannot be dealt with as a unit crime. In this case, Zhong Lanying signed the business contract, and all the benefits were owned by the company, and although she transferred funds, it was also for the interests of the company, and she did not use the relevant funds personally.

Therefore, although Lanying Company is a one-person limited company, it has an independent will.

3. Whether Lanying Company has the corporate governance structure required by the Company Law.

According to the law, a company with an independent personality must have a certain place, personnel and organizational structure, and the shareholders must make a written decision when exercising the functions and powers stipulated in the Company Law, and place it in the company for the record.

According to the available evidence, Lanying Company complies with the provisions of the Company Law and has a complete corporate governance structure.

Zhong Lanying's conduct was carried out in the name of the company, and its purpose was to pursue the interests of the company or perform the duties of the company, which should be regarded as the conduct of Lanying Company.

4. Whether Lanying Company operates in accordance with the articles of association.

A one-person limited company with an independent personality shall have its own articles of association and specific purposes, and the articles of association and purpose of the company shall also comply with the provisions of the law.

Lanying Company is a limited company registered in accordance with the law by the industrial and commercial department, and its articles of association comply with the provisions of the Company Law. Judging from the evidence provided by the prosecutor so far, there is no violation of the articles of association of Lanying Company. Lanying Company has been operating in accordance with the company's articles of association.

5. Whether Lanying Company was established in accordance with the statutory conditions and procedures.

First of all, Lanying Company is an enterprise established in accordance with the law and registered with the administrative department for industry and commerce, and it has obtained the status of a legal person in accordance with the law.

Secondly, Lanying Company meets the minimum registered capital stipulated in the Company Law and has paid up the registered capital in full at one time. (For companies registered after March 2014, the registered capital is on a subscription basis, and for companies registered before it, it is a paid-in system)

In this case, Lanying Company was incorporated in accordance with the law, and the defendant Zhong Lanying was the sole shareholder, legal representative and actual controller of the company.

After the establishment of Lanying Company, it operated in accordance with the profit-making purpose stipulated in the articles of association, the company was relatively independent in its operation, and had the governance structure required by the Company Law, and the defendant Zhong Lanying, as the legal representative, committed contract fraud for the benefit of the company, which should be regarded as the independent will of the company.

Lanying Company has an independent financial position and can be clearly distinguished from Zhong Lanying's personal property, and although it has committed contract fraud, the available evidence is insufficient to prove that Zhong Lanying used the payment for the goods for her personal expenses.

To sum up, Lanying Company has an independent legal personality and has the ability to bear criminal responsibility. Zhong Lanying, as the legal representative of the company, committed contract fraud for the benefit of the company, which should be regarded as the act of Lanying Company, so this case should constitute a crime committed by a unit. Zhong Lanying, as the actual controller of Lanying Company, should only bear the corresponding criminal liability. Complete. Fang Yi said.

Fang Yi made a tirade, and the two prosecutors on the other side frowned, and the judge also recorded a few strokes from time to time. The father and daughter of the Liu family who were listening to the clouds and mountains were covered with fog, although their brains were a little insufficient, but they felt that Fang Yi was quite able to live in vain.

The most uncomfortable thing is the clerk, the clerk who has always been proud of his shorthand, this time he was dumbfounded, Fang Yi's speech was a little fast, the clerk's hands kept tapping on the keyboard but still couldn't keep up, so he could only sit depressed and listen, waiting for Fang Yi to defend himself after the adjournment.

……

(End of chapter)