The weather is getting hotter and hotter day by day, and after waiting for nearly half a month, I finally waited for the notice of the court's hearing. Zhang Wen's case of illegally operating a similar business will be heard at 9 a.m. next Monday.

In the tenth courtroom of the court, there was an old lady sitting in the auditorium, I don't know what the relationship with Zhang Wen is, Zhang Fengcai did not come to observe, he was waiting for Fang Yi's news in the office restlessly.

The presiding judge is a middle-aged curly-haired female judge, with a big face, big eyes, and a gloomy face, and there is a feeling that no one is close. On either side were two female judges, both of whom looked younger.

There are two prosecutors sitting in the prosecutor's seat, the first one is a female prosecutor with short ear-length hair, in her thirties, and good facial features, her surname is Song, Fang Yi saw her when he went to the procuratorate to read the file before; The other is a male prosecutor in his twenties with an inch hair, who is estimated to be the apprentice of Inspector Song.

At this time, Inspector Song was reading out the indictment: "...... Defendant Zhang Wen was a senior manager of a joint venture and took advantage of his position to allow his relatives to operate business activities similar to the business scope of the company he worked for, and to seek illegal benefits from them.

This court holds that the defendant Zhang Wen's conduct violated Article 165 of the Criminal Law of the People's Republic of China, the facts of the crime are clear, the evidence is credible and sufficient, and he should be investigated for criminal responsibility for the crime of illegally operating similar businesses. In accordance with the provisions of article 176 of the Criminal Procedure Law of the People's Republic of China, a public prosecution is initiated, and a sentence is requested in accordance with law. Presiding Judge, the indictment has been read. ”

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

"I have no objection to the facts, but I do not agree with the charges. Although I am the department manager of the company, our company is a joint venture company, not a state-owned enterprise, and my actions do not constitute the crime of illegally operating the same type of business. Zhang Wendao.

Before the trial, Fang Yi went to see him and told him about the litigation plan and relevant legal provisions, so that he knew what to expect. How to say that Zhang Wen is also a person who has gone to college and has been in society for so many years, so he naturally knows what to say.

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

"Okay, Presiding Judge." Prosecutor Song looked at the defendant's dock and asked, "Defendant Zhang Wen, what position do you hold in the joint venture company?" ”

"General Manager of Sales." Zhang Wen said expressionlessly.

"What does your job do?" Inspector Song asked.

"Responsible for the sales and after-sales service of automotive products and parts of the joint venture." Zhang Wendao.

"What is the relationship between Wanjia Sales Company and you?" Inspector Song asked suddenly

"Wanjia Sales Company was registered by my mother and mother-in-law to act as an agent for the sales of auto parts in our company. It is an authorized agent of our company. "Prosecutor Zhang Wenming Bai wanted to ask anything, and he simply said it, anyway, these things are recorded in the case file, and sooner or later he has to say it.

"Who is actually running Wanjia Sales Company?" Inspector Song glanced at Zhang Wen and then asked.

"I'm in charge, and I'm in touch with the business." Zhang Wen looked at Inspector Song and said.

"How long has Wanjia Sales Company been acting as an agent for the joint venture company?" Inspector Song asked.

"Ten months." Zhang Wendao.

"As the agent of the joint venture company, what is the revenue and profit of Wanjia Sales Company in the past ten months?" Inspector Song asked.

"The sales volume is 486,425 yuan, and the profit is 122,100 yuan." Zhang Wendao.

"Does Wanjia Sales Company have any other business? Are these sales all from acting as agents for the products of the joint venture? Inspector Song asked.

"Wanjia Sales Company only does the business of joint ventures, and has no other business." Zhang Wendao.

"During your operation of Wanjia Sales Company, did the price of the products of the joint venture company sold by Wanjia Sales Company comply with the relevant regulations formulated by the joint venture company?" Inspector Song asked.

"Wanjia Sales Company is in accordance with the sales plan and price formulated by the joint venture company, and there is no violation of regulations. Wanjia sales company has accounts. It can be consulted at any time. Zhang Wendao.

"Presiding judge, the prosecutor has finished asking." Prosecutor Song looked at the presiding judge and said.

"The defendant's defender may ask questions of the defendant." The presiding judge said.

"Defendant Zhang Wen, how did you get into the joint venture?" Fang Yi asked.

"I was recruited by the society, and I used to work as a salesman in a foreign-funded company in another province." Zhang Wendao.

"Do you hold any other positions in the joint venture company besides being the general manager of the sales department?" Fang Yi asked.

"There are no other appointments." Zhang Wendao.

"Presiding judge, the defender has finished asking." Fang Yi said.

"Now that we will present evidence and cross-examine the evidence, do the prosecution and defense and the defendant have any new evidence to submit?" The presiding judge asked.

"There is no new evidence to submit." Tripartite equalization.

"The prosecutor will first present the evidence, and the defendant and the defender will cross-examine the evidence." The presiding judge said.

……

Zhang Wen recognized the facts alleged by the prosecutor, so he naturally agreed with the evidence presented by the prosecutor. Fang Yi also did not have any objection to the evidence that reflected the facts of the case.

"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 presiding judge said.

"Presiding judge and judge: The prosecutor believes that the defendant Zhang Wen, as the general manager of the department of the joint venture, took advantage of his position to operate the same business activities as the business scope of the joint venture company through the Wanjia Sales Company, and obtained illegal benefits of 122,100 yuan, which is huge.

The defendant's conduct is consistent with the criminal composition required by article 165 of the Criminal Law, and his conduct constitutes the crime of illegally operating the same type of business. The prosecutor recommended that the defendant be sentenced to three years' imprisonment. Complete. "Inspector Song recommended the sentence according to the top standard, which can also be seen as revenge for Zhang Wen's not admitting guilt.

"Defendant Zhang Wen defended himself." The presiding judge said.

"I recognize the fact that we have set up a company and operate a similar business as a joint venture company, but our company is not a state-owned enterprise, and I am not the general manager or director of the company, so my actions do not constitute a crime......," Zhang Wen defended.

"The defendant's defender gives his defense opinion." The presiding judge said.

"Presiding Judge and Judge: The defender believes that defendant Zhang Wen's conduct does not constitute the crime of illegally operating the same type of business for the following reasons:

1. A joint venture company is a joint venture between a Chinese party and a foreign party, and should not be recognized as a state-owned company.

According to the evidence provided by the prosecutor, the shareholding structure of the joint venture company is as follows: the Chinese party (state-owned enterprise) holds 50% of the equity, and the foreign party holds 50% of the equity. The joint venture company is operated and managed by personnel appointed by both parties. The nature of the joint venture company is a Sino-foreign joint venture company, not a state-owned company.

2. Defendant Zhang Wen is a department manager of a Sino-foreign joint venture company, and does not meet the main elements of the crime of illegally operating a similar type of business.

According to Article 165 of the Criminal Law, a director or manager of a state-owned company or enterprise who takes advantage of his position to operate a business of the same kind as the company or enterprise for which he or she works for himself or for another person to obtain illegal benefits, and the amount of money is huge, constitutes the crime of illegally operating the same type of business.

From the above provisions, it can be seen that the subject of the crime of illegally operating the same type of business is a special subject, that is, the directors and managers of state-owned companies and enterprises. Other persons cannot be the subject of the crime.

This is because the directors and managers of state-owned companies should safeguard the interests of state-owned companies and enterprises, abide by the articles of association, faithfully and diligently perform their duties, and must not use their position and authority in the company to seek benefits for themselves.

According to the provisions of the Company Law, directors refer to the members of the board of directors of a company, including the chairman, vice chairman, executive directors and general directors. The election, appointment, and replacement of directors must comply with certain legal procedures.

The term 'manager' referred to in Article 165 of the Criminal Law refers to senior management personnel who are appointed by the board of directors, are responsible to the board of directors, are responsible for the company's production and operation management, and organize the implementation of resolutions of the board of directors' meetings.

In actual operation, each department of the company will also set up department managers, such as administrative department managers, sales department managers, finance department managers, project managers and so on.

The above-mentioned department manager is set up for management needs, and he is not the manager of the company as mentioned in Article 165 of the Criminal Law, but only a daily title, and he is not responsible for the management of the entire company, but the management of a certain department or a certain business, and the authority of his operation and management is prescribed by the company itself, so the Company Law does not make a non-compete provision for him.

As a statutory offense, the main elements of the crime of illegally operating the same type of business should directly refer to the provisions of the Criminal Law, and it is not appropriate to make an expanded interpretation. Therefore, middle-level managers such as department managers of state-owned companies and enterprises do not constitute the subject of the crime of illegally operating similar types of business.

To sum up, although the defendant Zhang Wen took advantage of his position to operate the same business activities as the business scope of the joint venture company in which he held his position through Wanjia Sales Company, and profited from them, because the joint venture company where Zhang Wen worked was not a state-owned company, and Zhang Wen was a middle-level manager, he did not have the special status of a director or manager of a state-owned company as provided for in Article 165 of the Criminal Law, so his conduct did not constitute the crime of illegally operating the same type of business. Complete. Fang Yi said.

"The prosecutor may respond to the defender's arguments." The presiding judge said.

"In response to the defender's defense, the prosecutor believes that state-owned companies should include: a joint stock limited company wholly funded by the state and absolutely controlled by the state, a joint stock limited company with a relative majority of state control, and an enterprise in which the property rights of state-owned enterprises account for an absolute majority. Although the victim company in this case is a Sino-foreign joint venture company, the state-owned enterprise accounts for 50% of the capital contribution, and should also be recognized as a state-owned company. Inspector Song said.

As a matter of fact, there are also different opinions within the procuratorate on the issue of whether a Sino-foreign joint venture is a state-owned company, and for this reason the procuratorate has specially discussed it, but the procuratorate has no choice but to push the issue to the court.

The main reason for this result is that with the deepening of China's economic system reform, the main investors of companies and enterprises have also developed from the original single to diverse, but the development of the law is lagging behind, coupled with the fact that the relevant departments do not have a unified understanding of the concept of "state-owned enterprises", which has brought difficulties to the definition of the nature of state-owned companies and enterprises.

"The defender can respond to the prosecutor's comments." The presiding judge said.

"Based on the prosecutor's defense and response, the defense issued the following defense opinions:

The defender believes that state-owned companies and enterprises should be strictly limited to companies and enterprises whose assets are all state-owned. Other companies should not be recognized as state-owned companies. Here's why:

First, as an independent corporate legal person established in accordance with the law and operating for profit, the company has an independent legal personality and enjoys autonomy over the management, income and disposal of its assets.

After the company is established in accordance with the law, the capital contribution of shareholders becomes the company's assets and belongs to the company. Shareholders receive corresponding dividends according to the proportion of equity they hold.

Therefore, if a state-controlled company or a company with a majority of state-owned assets is recognized as a state-owned company, it not only denies the independent legal personality of the company, but also damages the subject qualification and shareholders' rights and interests of other investors.

Second, the amount of capital contributed by state-owned assets, whether it is an absolute controlling or a relative controlling stake, is only a form of expression of state participation, and the nature of the company cannot be directly defined as state-owned, so a state-owned company must be a company in which all its investors are state-owned units.

Returning to this case, the joint venture company is a company established by the Chinese party and the foreign party with equal investment, and both parties hold 50% of the shares, and its nature is a Sino-foreign joint venture company, and it should not be recognized as a state-owned company. Complete. Fang Yi said.

……

At eleven forty o'clock, Fang Yi walked out of the courthouse, stood at the gate of the court building, looked up at the gray sky, and breathed a sigh of relief. Zhou Ying, who followed behind, carried a briefcase and case file materials, and followed out with small steps along the way.

Fang Yi took out his mobile phone and dialed it out, and after a while, Zhang Fengcai's voice came from the microphone.

"Lawyer Fang, what's the result?" Zhang Fengcai's voice looked very anxious.

The verdict was pronounced in court, and Zhang Wen was not guilty. Zhang Wen still has to go through the formalities, and he will be able to go home in a while. Fang Yi smiled.

The court held that the joint venture company in which the defendant Zhang Wen worked was not a state-owned company, and the position he held was not a director or manager of a state-owned company, which was inconsistent with the crime required by article 165 of the Criminal Law, and therefore should not be punished as a crime.

The facts alleged by the public prosecution are established, but the charges are not established and are not supported. The defense opinions of the defendant and the defender are sustained and adopted. In accordance with Article 3 of the Criminal Law and Article 162 (2) of the Criminal Procedure Law, the judgment is that the defendant Zhang Wen is not guilty.

After hearing the word "not guilty" from the microphone, a stone in Zhang Fengcai's heart finally fell to the ground, and a smile appeared on his face.

(End of chapter)