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Ten Model Cases regarding Legally and Equally Protecting Personal and Property Security of Private Entrepreneurs Published by the Supreme People's Court [Effective]
最高人民法院发布依法平等保护民营企业家人身财产安全十大典型案例 [现行有效]
【法宝引证码】

Ten Model Cases regarding Legally and Equally Protecting Personal and Property Security of Private Entrepreneurs Published by the Supreme People's Court 

最高人民法院发布依法平等保护民营企业家人身财产安全十大典型案例

(May 16, 2019) (2019年5月16日)

I. Case regarding Judgment of Acquittal Entered upon Retrial of Zhang Wenzhong Who Was Charged with Committing Fraud, Offering Bribes to Entities, and Embezzling Public Funds   1.张文中诈骗、单位行贿、挪用公款再审改判无罪案
[Case Briefing] 【案情简介】
Defendant of the original trial: Zhang Wenzhong, male, Han ethnicity, born on July 1, 1962, Doctor's degree, and former Chairman of the Board of Wu Mart Holding Group Co., Ltd. (hereinafter referred to as “Wu Mart Group”). On March 30, 2009, Zhang Wenzhong was sentenced to a fixed-term imprisonment of twelve years and a fine of CNY500,000 was imposed on him for committing the crimes of fraud, offering bribes to entities, and embezzling finds. In October 2016, Zhang Wenzhong lodged a complaint to the Supreme People's Court. On December 27, 2017, the Supreme People's Court made a decision of retrial. After retrying this case, on May 31, 2018, the Supreme People's Court set aside the original judgment on the ground that the fact-finding and application of law were erroneous. Zhang Wenzhong was acquitted in the judgment entered upon retrial and the fine that has been enforced and the property that has been recovered in the original judgment should be legally returned. In the retrial, the Supreme People's Court held that: When Wu Mart Group applied for technological transformation projects with subsidized treasury bonds, the policies of subsidized treasury bonds for technological transformation projects have been adjusted, private enterprises were qualified to file applications, and the logistics project and informatization project applied by Wu Mart Group were key supporting targets of subsidized treasury bonds for technological transformation projects and conformed to the national economic development situations and industrial policies at that time. In the process of project application, although defendants of original trial, Zhang Wenzhong and Zhang Weichun, violated regulations, they neither committed any fraudulent act by making up facts and concealing the truth for defrauding subsidized treasury bonds for technological transformation projects nor had the subjective intent of illegally occupying the funds of subsidized treasury bonds for technological transformation projects amounting to CNY31.90 million, which did not satisfy the constitutive requirements for the crime of fraud. Therefore, the original judgment was erroneous in the fact-finding and application of law for determining that the acts of Zhang Wenzhong and Zhang Weichun constituted fraud and it should be corrected according to the law. After purchasing the shares of Taikang Company held by the China International Travel Services, the defendant entity Wu Mart Group offered Zhao CNY300,000 as reward for go-between, which was not for seeking illegitimate benefits, was not a serious circumstance, and did not satisfy the constitutive requirements for a crime of offering bribes to an entity; after purchasing the shares of Taikang Company held by Guangdong Utrust Investment Holding Co., Ltd., Wu Mart Group paid Li and other two companies CNY5 million as claimed by them, Wu Mart Group did not have the subjective intent of offering bribes for seeking illegitimate benefits, and Wu Mart Group's act did not satisfy the constitutive requirements for a crime of offering bribes to an entity. Therefore, Wu Mart Group's act did not constitute a crime of offering bribes to an entity. As the directly responsible person in charge of Wu Mart Group, Zhang Wenzhong should not be subject to criminal liability for the crime of offering bribes to an entity. The original judgment was erroneous in the fact-finding and application of law for determining that the acts of Wu Mart Group and Zhang Wenzhong constituted a crime of offering bribes to an entity and it should be legally corrected. The original judgment had unclear facts and insufficient evidence in determining that Zhang Wenzhong embezzled funds for personal use and gain. Therefore, the original judgment was erroneous in the fact-finding and application of law for determining that Zhang Wenzhong's act constituted a crime of embezzling funds and it should be legally corrected. 原审被告人张文中,男,汉族,1962年7月1日出生,博士研究生文化,原系物美控股集团有限公司董事长。2009年3月30日,原审被告人张文中因犯诈骗罪、单位行贿罪、挪用资金罪被判处有期徒刑十二年,并处罚金人民币五十万元。2016年10月,张文中向最高人民法院提出申诉。最高人民法院于2017年12月27日作出再审决定。2018年5月31日最高人民法院提审本案后,以认定事实和适用法律错误为由撤销原审判决,改判张文中无罪,原判已执行的罚金及追缴的财产依法予以返还。最高人民法院再审认为,物美集团在申报国债技改贴息项目时,国债技改贴息政策已有所调整,民营企业具有申报资格,且物美集团所申报的物流项目和信息化项目均属于国债技改贴息重点支持对象,符合国家当时的经济发展形势和产业政策。原审被告人张文中、张伟春在物美集团申报项目过程中,虽然存在违规行为,但未实施虚构事实、隐瞒真相以骗取国债技改贴息资金的诈骗行为,并无非法占有3190万元国债技改贴息资金的主观故意,不符合诈骗罪的构成要件。故原判认定张文中、张伟春的行为构成诈骗罪,属于认定事实和适用法律错误,应当依法予以纠正。原审被告单位物美集团在收购国旅总社所持泰康公司股份后,给予赵某30万元好处费的行为,并非为了谋取不正当利益,亦不属于情节严重,不符合单位行贿罪的构成要件;物美集团在收购粤财公司所持泰康公司股份后,向李某3公司支付500万元系被索要,且不具有为谋取不正当利益而行贿的主观故意,亦不符合单位行贿罪的构成要件,故物美集团的行为不构成单位行贿罪,张文中作为物美集团直接负责的主管人员,对其亦不应以单位行贿罪追究刑事责任。原判认定物美集团及张文中的行为构成单位行贿罪,属于认定事实和适用法律错误,应当依法予以纠正。原判认定张文中挪用资金归个人使用、为个人谋利的事实不清、证据不足。故原判认定张文中的行为构成挪用资金罪,属于认定事实和适用法律错误,应当依法予以纠正。
[Significance] 【典型意义】
This retrial case involving Zhang Wenzhong is the first case tried by the Supreme People's Court for correcting the misjudged cases concerning property rights and entrepreneurs under the backdrop of implementing the comprehensive rule of law and strengthening the protection of property rights and entrepreneurs' rights and interests and it has set an example for correcting the misjudged cases concerning property rights and entrepreneurs and implementing the judicial protection of property rights. The protection of the lawful rights and interests of private enterprises is the core content in maintaining the sound development of the socialist market-oriented economy. The change of the judgment in case against Zhang Wenzhong has implemented the policies of the CPC Central Committee on legally and equally protecting the property rights of various ownership economies and protecting the property rights of private enterprises, showed such rule of law principles as no punishment without a law, reflected the determination and persistence of the people's courts in correcting misjudged cases, and embodied the undertaking spirit of the people's courts in basing on facts and taking law as the criterion. It is of great demonstration significance in stabilizing the expectations of private entrepreneurs and assuring the private entrepreneurs' initiatives for work and entrepreneurship. 张文中再审案件是在全面依法治国、加强产权和企业家权益保护大背景下最高法院依法纠正涉产权和企业家冤错案件第一案,为纠正涉产权和涉民营企业冤错案件、落实产权司法保护树立了典范和标杆。保护民营企业合法利益是维护社会主义市场经济健康发展核心内容。张文中案被依法改判,贯彻落实了党中央依法平等保护各类所有制经济产权、保护民营企业产权的政策,体现了人民法院纠正冤错案件的决心和坚持,体现了罪刑法定等法治原则,体现了人民法院坚持以事实为根据、以法律为准绳的担当精神,对于稳定民营企业家预期,保障民营企业家安心干事创业,具有重大示范意义。
II. Case regarding Judgment of Acquittal Entered upon Retrial of Zhao Mingli Who Was Charged with Committing Fraud   2、赵明利诈骗再审改判无罪案
[Case Briefing] 【案情简介】
In August 1994, Zhao Mingli, the then director of Chunguang Riveting and Welding Plant in Lishan District, Anshan City, Liaoning Province, was detained and examined by the Public Security Bureau of Anshan City for being suspected of committing a crime of fraud and he was afterwards arrested. On September 14, 1998, the People's Procuratorate of Qianshan District, Anshan City instituted a public prosecution in the People's Court of Qianshan District, Anshan City and charged Zhao Mingli of committing the crime of fraud. On December 24, 1998, upon trial, the People's Court of Qianshan District entered a judgment that there was insufficient evidence for determining that Zhao Mingli committed a crime of fraud and Zhao Mingli should be acquitted. After the judgement was pronounced, the People's Procuratorate of Qianshan District, Anshan City appealed. On June 3, 1999, the Intermediate People's Court of Anshan City entered a final judgment. It was determined that defendant Zhao Mingli made no payment after taking delivery of goods by making use of poor management of Northeast Air-Cooled Rolled Plates Company and the judgment of first instance should be set aside. It was found that Zhao Mingli committed a crime of fraud and he should be sentenced to a fixed-term imprisonment of five years and a fine of CNY200,000 should be imposed on him. After the judgment of first instance came into force, defendant of the original trial Zhao Mingli filed a petition, but such petition was respectively dismissed by the Intermediate People's Court of Anshan City and the Higher People's Court of Liaoning Province. On July 21, 2015, Zhao Mingli died of a disease. Ma Yingjie, wife of Zhao Mingli, petitioned to the Supreme People's Court on the ground that Zhao Mingli's acts did not constitute a crime. On July 27, 2018, the Supreme People's Court made a decision of retrial and formed a collegial bench as legally required to retry this case. Considering that Zhao Mingli has died, in accordance with the provisions of the relevant laws and judicial interpretations, the Supreme People's Court conducted a written trial of this case under the procedures of second instance and found the following facts: During the period when defendant of the original trial Zhao Mingli served as the plant director and conducted contractual operation of the enterprise of collective ownership, Chunguang Riveting and Welding Plant in Lishan District, Anshan City, although he made no payment for taking delivery of goods for four times, he has paid in advance the checks to the Finance Department of Northeast Air-Cooled Rolled Plates Company before taking delivery of such goods and undergone normal formalities for taking delivery of goods. There was evidence showing that during and after the period of the alleged four times of taking delivery of goods without payments, Zhao Mingli still continuously transferred money and made payments for goods and he had the intention of positively performing the obligation of making payments for goods. In addition, he never denied the fact that he has taken delivery of goods and he did not abscond. Therefore, Zhao Mingli's acts should not be determined as making up facts and concealing the truth. Accordingly, Zhao Mingli had no subjective intent of illegal occupation and he did not objectively commit such acts as making up facts and concealing the truth, which did not satisfy the constitutive requirements for a crime of fraud, and he was not guilty of fraud. 1994年8月时为辽宁省鞍山市立山区春光铆焊加工厂厂长的赵明利,因涉嫌诈骗被鞍山市公安局收容审查,后执行逮捕。 1998年9月14日鞍山市千山区人民检察院向鞍山市千山区人民法院提起公诉,指控赵明利犯诈骗罪。1998年12月24日千山区人民法院经审理后判决,赵明利犯诈骗罪证据不足,宣告无罪。 宣判后,鞍山市千山区人民检察院提起抗诉。1999年6月3日鞍山市中级人民法院于作出终审判决,认定被告人赵明利利用东北风冷轧板公司管理不善之机,采取提货不付款的手段,撤销一审判决,认定赵明利犯诈骗罪,判处有期徒刑5年,并处罚金人民币20万元。 判决发生法律效力后,原审被告人赵明利提出申诉,并分别被鞍山市中院、辽宁省高院予以驳回。2015年7月21日赵明利因病死亡。赵明利妻子马英杰以赵明利的行为不构成犯罪为由,向最高法院提出申诉。2018年7月27日最高人民法院作出再审决定,提审本案,并依法组成合议庭。鉴于赵明利已经死亡,根据相关法律、司法解释的规定,依照第二审程序对本案进行了书面审理。认定如下事实:原审被告人赵明利在担任厂长并承包经营的集体所有制企业鞍山市立山区春光铆焊加工厂期间,虽有4次提货未结算,但赵明利在提货前均向东北风冷轧板公司财会部预交了支票,履行了正常的提货手续。有证据表明,其在被指控的4次提货行为发生期间及发生后,仍持续进行转账支付货款,具有积极履行支付货款义务的意思表示,且赵明利从未否认提货事实的发生,亦未实施逃匿行为,故不能认定为是虚构事实、隐瞒真相的行为。据此,赵明利主观上没有非法占有的目的,客观上亦未实施虚构事实、隐瞒真相的行为,不符合诈骗罪的构成要件,不构成诈骗罪。
[Significance] 【典型意义】
The retrial case involving Zhao Mingli is the first hammer knocked by the Second Circuit Court of the Supreme People's Court for protection of entrepreneurs' personal and property security in northeast China. The critical point for acquittal of Zhao Mingli is to clarify the boundary between economic dispute and criminal offense. In this case, Zhao Mingli's act of failing to make payments for goods in a timely manner neither substantially violated the contract performance manner that has been recognized by both parties for a long term, nor caused any heavy economic loss to the counterparty, and such act has not exceeded the scope of general civil contract disputes. Economic disputes and criminal offenses of fraud should be strictly distinguished, no criminal compulsory measures may be adopted to intervene in normal civil activities and impair the equal, voluntary, fair, and self-governing market transaction order, and rule of law should be adopted in protecting a sound business environment. 赵明利案再审是最高人民法院第二巡回法庭敲响的东北地区保护企业家人身和财产安全的第一槌。该案中赵明利被改判无罪的关键点在于,厘清了经济纠纷和刑事犯罪的界限。本案中,赵明利未及时支付货款的行为,既未实质上违反双方长期认可的合同履行方式,也未给合同相对方造成重大经济损失,尚未超出普通民事合同纠纷的范畴。严格区分经济纠纷与刑事诈骗犯罪,不得动用刑事强制手段介入正常的民事活动,侵害平等、自愿、公平、自治的市场交易秩序,用法治手段保护健康的营商环境。
III. Case regarding Gu Chujun Who Was Charged with False Declaration of Registered Assets, Disclosure of Important Information in Violation of Regulations, Failure to Disclose Important Information, and Embezzlement of Funds 3.顾雏军虚报注册资本、违规披露、不披露重要信息、挪用资金案
[Case Briefing] 【案情简介】
In July 2005, Gu Chujun, originator of Greencool series, was arrested by the police for being suspected of committing such crimes as making false capital contributions, preparing false financial statements, embezzling assets, and committing duty-related embezzlement. On January 30, 2008, the Intermediate People's Court of Foshan City, Guangdong Province entered a judgment of first instance against Gu Chujun, head of a series of Greencool companies. On the ground that Gu Chujun committed a crime of false declaration of registered assets, disclosure of important information in violation of regulations, and failure to disclose important information and a crime of embezzlement of funds, the Intermediate People's Court of Foshan City decided to execute the fixed-term imprisonment of ten years and impose a fine of CNY6.8 million. After the judgment of first instance was pronounced, Gu Chujun appealed. On March 25, 2009, the Higher People's Court of Guangdong Province entered a criminal ruling to dismiss the appeal and affirm the original judgment. After being released upon completion of his sentence, Gu Chujun filed a petition to the Supreme People's Court. On December 28, 2017, the Supreme People's Court published three major cases concerning property rights to be retried by the people's courts according to the law and the case involving Gu Chujun would be retried by the First Circuit Court of the Supreme People's Court. On June 13, 2018, the First Circuit Court of the Supreme People's Court held a public trial of the retrial case regarding defendant of the original trial Gu Chujun and other persons' false declaration of registered assets, disclosure of important information in violation of regulations, failure to disclose important information, and embezzlement of funds. On April 10, 2019, the Supreme People's Court entered a final judgment to set aside partial sentencing of Gu Chujun in the original judgment and sentence Gu Chujun to a fixed-term imprisonment of five years. 2005年7月,柯林格尔系创始人顾雏军因涉嫌虚假出资、虚假财务报表、挪用资产和职务侵占等罪名被警方拘捕。2008年1月30日,广东佛山市中院对格林柯尔系掌门人顾雏军案作出一审判决,顾雏军因虚报注册资本罪、违规披露和不披露重要信息罪、挪用资金罪,决定执行有期徒刑10年,并处罚金人民币680万元。宣判后,顾雏军提出上诉。2009年3月25日,广东省高级人民法院作出刑事裁定:驳回上诉,维持原判。顾雏军刑满释放后,向最高人民法院提出申诉。2017年12月28日,最高人民法院公布人民法院依法再审三起重大涉产权案件,顾雏军案将由最高人民法院第一巡回法庭提审。2018年6月13日,最高人民法院第一巡回法庭公开开庭审理原审被告人顾雏军等虚报注册资本,违规披露、不披露重要信息,挪用资金再审一案。2019年4月10日,最高法终审判决:撤销顾雏军原判部分量刑,改判有期徒刑五年。
The Supreme People's Court held upon retrial that the fact found in the original trial that Gu Chujun, Liu Yizhong, Jiang Baojun, and Zhang Xihan made capital contribution by swapping intangible assets with falsified payment of CNY660 million by using false evidentiary materials in the application for altering registration of Shunde Greencool Enterprise Development Co., Ltd. existed, but this act was an extension of the local government's support to Shunde Greencool Enterprise Development Co., Ltd.'s establishment of the registration item in violation of regulations, causing no serious harm. In addition, the relevant laws have been amended at the time of the original trial, which made the proportion of intangible assets swapped with the falsified payment that exceeded the statutory limit be reduced from the former 55% to 5%. Therefore, the acts of Gu Chujun and other persons were obviously minor, causing no serious harm, and it should not be deemed as a crime. The fact found in the original trial that KELON Electric Appliance Company included the inflated profits from 2002 to 2004 to the accounting report for disclosure existed and it may be given an administrative penalty for its violation of law. However, since the evidence in the case was insufficient to prove that the act of KELON Electronic Appliance Company of providing a false accounting report has caused a consequence of “serious impairment of shareholders' or other persons' interests” as prescribed in the Criminal Law, the criminal liability of the relevant personnel should not be investigated. The fact found in the original trial that Gu Chujun and Jiang Baojun embezzled CNY63 million of Yangzhou Asiastar Bus Co., Ltd. to Yangzhou Greencool Company was unclear and lacked evidence. In addition, the application of law was erroneous. Therefore, the acts of Gu Chujun and Jiang Baojun should not be handled as a crime. However, the fact found in the original trial that Gu Chujun and Zhang Hongna embezzled CNY250 million of KELON Electric Appliance Company and CNY40 million of Jiangxi KELON Industrial Development Co., Ltd. for personal use and profit-earning activities was clear and the evidence was authentic and sufficient. The defense opinions of Gu Chujun and his defender that KELON Group owed a large amount of funds to a series of Greencool companies were contrary to the fact and untenable. The acts of Gu Chujun and Zhang Hong have constituted a crime of embezzling funds and the amount of embezzled funds was large. Considering that the duration of fund embezzlement was short and the fund embezzlement did not cause any heavy economic loss to entities, Gu Chujun and Zhang Hong may be given lenient punishments according to the law. 最高人民法院经再审认为,原审认定顾雏军、刘义忠、姜宝军、张细汉在申请顺德格林柯尔变更登记过程中,使用虚假证明文件以6.6亿元不实货币置换无形资产出资的事实存在,但该行为系当地政府支持顺德格林柯尔违规设立登记事项的延续,未造成严重后果,且相关法律在原审时已进行修改,使本案以不实货币置换的超出法定上限的无形资产所占比例由原来的55%降低至5%,故顾雏军等人的行为情节显著轻微危害不大,不认为是犯罪;原审认定科龙电器在2002年至2004年间将虚增利润编入财会报告予以披露的事实存在,对其违法行为可依法予以行政处罚,但由于在案证据不足以证实科龙电器提供虚假财会报告的行为已造成刑法规定的“严重损害股东或者其他人利益”的后果,不应追究相关人员的刑事责任;原审认定顾雏军、姜宝军挪用扬州亚星客车6300万元给扬州格林柯尔的事实不清,证据不足,且适用法律错误,不应按犯罪处理,但原审认定顾雏军、张宏挪用科龙电器2.5亿元和江西科龙4000万元归个人使用,进行营利活动的事实清楚,证据确实、充分,顾雏军及其辩护人提出的科龙集团欠格林柯尔系公司巨额资金的意见,与事实不符,不能成立。顾雏军、张宏的行为均已构成挪用资金罪,且挪用数额巨大。鉴于挪用资金时间较短,且未给单位造成重大经济损失,依法可对顾雏军、张宏从宽处罚。
[Significance] 【典型意义】
The case regarding judgment entered upon retrial of Gu Chujun has released to the society positive signals of judicial protection of property rights and implemented the spirit of the CPC Central Committee on strengthening the judicial protection of property rights. It is of great significance in stimulating entrepreneurs' momentum for startups and innovations, creating good business environment, and promoting the sustainable and sound economic and social development. The recognition of three charges in this case has reflected the fundamental requirements for procedural rule of law and evidence-based adjudication, namely, the finding of case facts must be based on evidence and the evidence for fact-finding must be legally collected, objective, and true. The retrial of this case has urged all sectors of society to pay more attention to the system of property rights protection, good business environment, and enterprises' laws and regulations-compliance system. In the meantime, it has set an example for judicial organs in handling similar cases in terms of following the principle of modesty, prudently initiating procedures, taking compulsory measures with discretion, more strictly grasping the boundary between crime and non-crime, strictly implementing such fundamental principles as no punishment without a law, innocent until proved guilty, and exclusion of illegally-obtained evidence. 顾雏军案再审改判,向全社会释放了产权司法保护的积极信号,把党中央关于加强产权司法保护的精神落到了实处,对于激发企业家创业创新动力,营造良好营商环境,促进经济社会持续健康发展,都具有十分重要的意义。本案中三个罪名的认定都体现了程序法治和证据裁判的基本要求,就是认定案件事实必须以证据为根据,认定事实的证据必须是合法收集的,必须是客观真实的。该案的再审促使社会各界更加关注产权的保护制度,关注良好的营商环境,关注企业的合法合规制度。同时为司法机关办理类似案件要坚持谦抑原则,要慎重启动程序,慎重采取强制措施在罪与非罪的把握边界上要更加严格,严格贯彻罪刑法定、疑罪从无、非法证据排除这些基本的原则,树立了典范。
IV. Case regarding Acquittal of Guangzhou Delan Company and Xu Zhanwei That Were Charged with the Crime of Fraudulent Obtaining of Export Tax Refund   4.广州德览公司、徐占伟骗取出口退税无罪案
[Case Briefing] 【案情简介】
Guangzhou Delan Trading Co., Ltd. (hereinafter referred to as “Delan Company”) was a foreign trade enterprise with the import and export operation right and export tax refund right. As the legal representative of the Company, Xu Zhanwei was the actual person-in-charge of the Company. In 2013, after discussions with Lin Kun (middle name withheld) and Zhang Meng (middle name withheld), Xu Zhanwei agreed to Lin Kun (middle name withheld) and Zhang Meng (middle name withheld)'s engagement in garment export business by being affiliated to Delan Company. Delan Company was responsible for providing Lin Kun (middle name withheld) and Zhang Meng (middle name withheld) with blank purchase contracts and customs declaration forms affixed with its official seal, Lin Kun (middle name withheld) and Zhang Meng (middle name withheld) were responsible for organizing the supply of goods and conducting customs declaration for export, upon receipt of the export contracts, customs declaration documents, invoices, and other materials provided by Lin Kun (middle name withheld) and Zhang Meng (middle name withheld), Delan Company applied for tax refund to the state taxation department and charged commissions by CNY0.03 TO 0.05 per USD according to the export values. From October 2013 to November 2014, by the aforesaid means, Delan Company received a total of 930 special VAT invoices issued by four companies including Inner Mongolia Chifeng Jinjin Clothes Processing Co., Ltd. (hereinafter referred to as “Chifeng Jinjin Company”), Inner Mongolia Chifeng Xingxing Woolen Clothes Processing Co., Ltd. (hereinafter referred to as “Chifeng Xingxing Company”), Shandong Rushan Chaoyue Clothes Co., Ltd. (hereinafter referred to as “Rushan Chaoyue Company”), Hebei Julu Henghe Down Products Factory (hereinafter referred to as “Julu Henghe Factory”) from Lin Kun (middle name withheld) and Zhang Meng (middle name withheld), and upon strength of 900 such special VAT invoices, it applied for export tax refund to the state taxation department. The amount of applied tax refund was CNY13,982,187.38 in total, in which CNY10,256,301.61 has been refunded. After the affiliation fee that should be charged was deducted from the amount of applied tax refund, the balance was remitted to bank accounts designated by Lin Kun (middle name withheld). 广州德览贸易有限公司(以下简称德览公司)为外贸企业,具有进出口经营权和出口退税权,徐占伟任该公司法定代表人,为该公司的实际负责人。2013年,经与林某坤、张某萌商议,徐占伟同意林某坤、张某萌挂靠德览公司从事服装出口业务,由德览公司负责提供加盖公章的空白采购合同和报关单给林某坤、张某萌,由林某坤、张某萌自行负责组织货源和自行报关出口,德览公司在收到林某坤、张某萌提供的出口合同、报关单证及发票等资料后,再向国税部门申请退税,并按照出口金额每美元收取人民币0.03元至0.05元的比例收取手续费。2013年10月至2014年11月间,德览公司通过上述方式共接收林某坤、张某萌提供的由内蒙古自治区赤峰市金金服装加工有限公司(以下简称赤峰金金公司)、内蒙古自治区赤峰市兴兴绒毛服装加工有限公司(以下简称赤峰兴兴公司)、山东省乳山市超越服装有限公司(以下简称乳山超越公司)、河北省巨鹿县恒合绒毛制品厂(以下简称巨鹿县恒合厂)等四家公司开具的增值税专用发票930份,并持其中的 900份发票向国家税务部门申报出口退税,共计申请退税款人民币13982187.38元,其中已经实际退税人民币10256301.61元,所申请的退税款扣除应收取的挂靠费后,余款均汇入林某坤指定的账户。
The Intermediate People's Court of Guangzhou City, Guangdong Province held that: Delan Company and its directly responsible person in charge Xu Zhanwei provided others with affiliation services by utilizing Delan Company's qualification as an import and export company that may apply for tax refund. Under the circumstance of seeing no clients, goods, and foreign merchants, they permitted the affiliated entities to engage in export business with their clients, supplies of goods, and customs declarations and applied for tax refunds with the invoices provided by such affiliated entities, which was obvious violation of laws and regulations. However, in this case, there was no evidence proving that Delan Company subjectively knew the affiliated personnel had the intention to fraudulently obtain export tax refund and the reasonable doubt that Delan Company was actually deceived by the affiliated personnel could not be excluded. The defense opinions of Delan Company and its litigation representative as well as Xu Zhanwei and his defender were reasonable and should be admitted according to the law. The charges of the public prosecution organ against Delan Company and Xu Zhanwei for fraudulent obtaining of export tax refund were unclear in facts and insufficient in evidence and such charges should be untenable. Therefore, the Intermediate People's Court of Guangzhou City entered a judgment of acquittal of both Delan Company and Xu Zhanwei. 广东省广州市中级人民法院认为,德览公司以及直接负责的主管人员徐某某,利用德览公司作为进出口公司可以申请退税的资质,为他人提供挂靠服务,在不见客户、不见货物、不见外商的情况下,允许挂靠人自带客户、自带货源、自行报关从事出口业务,并持挂靠人提供的发票申请退税,显属违法违规行为。但本案并无证据证实德览公司主观上明知挂靠人具有骗取出口退税的故意,不能排除德览公司确系被挂靠人蒙蔽的合理怀疑。德览公司及其诉讼代表人、徐某某及其辩护人所提辩护意见合理,依法予以采纳。公诉机关指控德览公司、徐某某骗取出口退税的事实不清,证据不足,指控的罪名不能成立。遂判决德览公司和徐占伟无罪。
[Significance] 【 典型意义】
Holding fast to the boundary between crime and non-crime according to the law and improving the protection of personal and property security of private entrepreneurs have enhanced private entrepreneurs' sense of security. In this case, the lawful rights and interests of a private entrepreneur has been effectively protected and the instructions of General Secretary Xi Jinping and the requirements of the Opinions of the CPC Central Committee and the State Council on Improving the Property Rights Protection System and Lawfully Protecting Property Rights (hereinafter referred to as the “Opinions on Property Rights”) that “the irregularities in the process of operations by various enterprises, especially private enterprises, since the reform and opening-up shall be treated objectively from the prospective of development and properly handled according to the law” have been implemented. This is of great guidance significance in guiding the people's courts across the country in treating irregularities of private enterprises in their development under the principles of “no punishment without a law” and “innocent until proved guilty” in judicial adjudication. 依法坚守罪与非罪的边界,加大民营企业家的人身和财产保护力度,增强了民营企业家的安全感。切实保护了民营企业家的合法权益,将习近平总书记的指示和《产权意见》关于“以发展眼光客观看待和依法妥善处理改革开发以来各类企业特别是民营企业经营过程中存在的不规范问题”的要求落到实处。本案对于指导全国各级法院在司法审判中按照罪刑法定、疑罪从无原则以发展的眼光看待民营企业发展中的不规范问题,具有重要的指导意义。
V. Case regarding Acquittal of Mai Zanxin Who Was Charged with the Crime of Duty-related Misappropriation and Embezzlement of funds
......
   5、麦赞新职务侵占、挪用资金无罪案
......

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