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No. 2 Branch of the People's Procuratorate of Beijing Municipality v. Shanghai Huaya Company and Ding Fugen, et al (Case on Manipulating Securities Trading Prices)
北京市人民检察院第二分院诉上海华亚公司和丁福根等人操纵证券交易价格案
【法宝引证码】

No. 2 Branch of the People’s Procuratorate of Beijing Municipality v. Shanghai Huaya Company and Ding Fugen, et al (Case on Manipulating Securities Trading Prices)
(Case on Manipulating Securities Trading Prices)
北京市人民检察院第二分院诉上海华亚公司和丁福根等人操纵证券交易价格案

No. 2 Branch of the People's Procuratorate of Beijing Municipality v. Shanghai Huaya Company and Ding Fugen, et al

 

北京市人民检察院第二分院诉上海华亚公司和丁福根等人操纵证券交易价格案

(Case on Manipulating Securities Trading Prices) 
BASIC FACTS 公诉机关:北京市人民检察院第二分院。
Prosecuting Organ: the No. 2 Branch of the People's Procuratorate of Beijing Municipality. 被告单位:上海华亚实业发展公司。注册经营地:上海市浦东南路。
Defendant: Shanghai Huaya Industry Development Company, whose registered business place is at Pudong South Road, Shanghai 被告人:丁福根,男,37岁,中科创业投资有限公司职员,住北京市海淀区。2001年5月18日被逮捕。
Defendant: Ding Fugen, male, 37, employee of China Venture Capital Limited Company, dwelling at Haidian District, Beijing. He was arrested on May 18, 2001. 被告人:董沛霖,男,49岁,上海华亚实业发展公司法定代表人,住北京市海淀区。2001年4月19日被逮捕。
Defendant: Dong Peilin, male, 49, legal representative of Shanghai Huaya Industry Development Company, dwelling at Haidian District, Beijing. He was arrested on April 19, 2001. 被告人:庞博,女,27岁,中科创业投资有限公司职员,住黑龙江省牡丹江市西安区。2001年4月19日被逮捕。
Defendant: Pang Bo, female, 27, employee of China Venture Capital Limited Company, dwelling at Xi'an District, Mudanjiang City, Heilongjiang Province. She was arrested on April 19, 2001. 被告人:何宁一,男,45岁,杭州华亚实业公司法定代表人,住浙江省杭州市上城区。2001年5月24日被逮捕。
Defendant: He Ningyi, male, 45, legal representative of Hangzhou Huaya Industry Company, dwelling at Shangcheng District, Hangzhou, Zhejiang Province. He was arrested on May 24, 2001. 被告人:李芸,男,49岁,上海华亚实业发展公司总经理,住上海市徐汇区。2001年4月19日被逮捕。
Defendant: Li Yun, male, 49, general manager of Shanghai Huaya Industry Development Company, dwelling at Xuhui District, Shanghai. He was arrested on April 19, 2001. 被告人:边军勇,男,31岁,北京克沃科技有限公司法定代表人,住北京市宣武区。2001年5月24日被逮捕。
Defendant: Bian Junyong, male, 31, legal representative of Beijing Kewo Technology Limited Company, dwelling at Xuanwu District, Beijing. He was arrested on May 24, 2001. 被告人:刘蕾,女,32岁,无业,住北京市海淀区。2001年5月18日被逮捕。
Defendant: Liu Lei, female, 32, unemployed, dwelling at Haidian District, Beijing. She was arrested on May 18, 2001. 
PROCEDURAL POSTURE 被告单位上海华亚实业发展公司、被告人丁福根等人操纵证券交易价格、刘蕾窝藏案,由北京市人民检察院第二分院于2002年5月9日向北京市第二中级人民法院提起公诉。
With regard to the manipulation by Shanghai Huaya Industry Development Company (a defendant, hereinafter referred to as Huaya Company) and Ding Fugen, et al of securities trading prices and the concealment by Liu Lei, the No. 2 Branch of the People's Procuratorate of Beijing Municipality lodged a prosecution to the No. 2 Intermediate People's Court of Beijing Municipality (hereinafter referred to as Beijing No. 2 Intermediate Court) on May 9, 2002. 起诉书指控:1998年12月至2001年1月间,吕新建与朱焕良(均另行处理)合谋,意图操纵股票名称为康达尔的流通股。为此,吕新建先后指使被告人丁福根、庞博、边军勇等人并联合被告单位上海华亚实业发展公司、被告人董沛霖等人在北京、上海、浙江等20余个省、自治区、直辖市以中科创业投资有限公司、北京克沃科技有限公司等公司或被告人丁福根、边军勇等个人名义,与100余家单位或个人签定合作协议、委托理财协议等,筹集资金共计人民币54亿余元,在申银万国证券股份有限公司上海陆家浜营业部、中兴信托投资有限责任公司北京亚运村营业部等120余家营业部,先后开设股东帐户1500余个,同时采取以不转移实际控制权为目的的自买自卖,及利用购买深圳康达尔公司法人股、进入该上市公司董事会、发布信息从而影响股票交易价格等方法,联合或连续买卖0048股票,其间最高持有或控制0048股票共计5600余万股(占0048股票流通股份的55.36%),严重影响0048股票的交易价格及交易量,操纵0048股票交易价格。
The bill of indictment describes: from December 1998 to January 2001, Lü Xinjian and Zhu Huanliang (both were punished separately in another case) colluded with each other, and attempted to manipulate a circulation stock named Kondarl. For this purpose, Lü Xinjian successively instigated Ding Fugen, Pang Bo, Bian Junyong, et al to, jointly with Huaya Company and Dong Peilin, et al, conclude cooperation agreements and agreements on entrusted financial management with more than 100 entities or individuals in more than 20 provinces, autonomous regions and municipalities directly under the Central Government including Beijing, Shanghai and Zhejiang in the names of China Venture Capital Limited Company, Beijing Kewo Technology Limited Company or Ding Fugen, Bian Junyong or other individuals. In this way, they raised a total amount of CNY 5.4 billion odd of funds, and successively opened more than 1,500 shareholder's accounts in more than 120 business departments including Shenyin Wanguo Securities Joint Stock Limited Company, Shanghai Lujiabang Business Department, and Zhongxing Trust & Investment Limited Liability Company, Beijing Asian Games Village Business Department. Meanwhile, they jointly or continuously traded in the 0048 stock by way of trading with themselves without aiming to transfer the power of actual control, and by way of making use of buying Shenzhen Kondarl's corporate shares, entering that listed company's board of directors, or publishing information as well as by other ways so as to impact the stock trading prices. During that period, they maximumly held or controlled a total number of more than 56 million shares of the 0048 stock (accounting for 55.36% of circulation shares of the 0048 stock), seriously impacted the trading prices and trading quantity of the 0048 stock, and manipulated the trading price of the 0048 stock. 被告人丁福根明知吕新建意图操纵股票交易价格,仍按其要求,直接或指使被告人庞博等人,对20余个省、自治区、直辖市120余家营业部所开设的1500余个股东帐户及所筹集的资金54亿余元进行全面管理、调拨,并直接联系或参与筹集资金合同的签定,同时以被委托人的身份在营业部内从事开户、证券买卖、转托管、指定交易与撤销指定交易、存取款、清户和转授权等活动。
Ding Fugen clearly knew that Lü Xinjian attempted to manipulate the stock trading prices, but still followed his requirements to, either directly or by instigating Pang Bo, et al to, fully manage and allot the more than 1,500 shareholder's accounts opened in more than 120 business departments in more than 20 provinces, autonomous regions and municipalities directly under the Central Government as well as the CNY 5.4 odd billion of raised funds. Moreover, he directly contacted others for or participated in the conclusion of the contracts on raising funds, and meanwhile engaged in the activities of opening accounts, trading in securities, sub-trusteeship, designated trading and cancellation thereof, deposit or drawing of money, clearing up accounts, and sub-authorization, etc. in the business departments in the identity of the entrusted party. 被告人丁福根、庞博还按照吕新建的要求,同时或分别向被告人边军勇、董沛霖、何宁一、李芸、上海华亚实业发展公司及杭州华亚实业公司等人(或公司)在所控制的1500余个股东帐户、120余家营业部下达买卖指令,严重影响0048股票的交易价格及交易量,操纵0048股票交易价格。
Ding Fugen and Pang Bo also followed Lü Xinjian's requirements to, either simultaneously or separately, distribute trading orders via the more than 1,500 shareholder's accounts and more than 120 business departments under control to Bian Junyong, Dong Peilin, He Ningyi, Li Yun, Huaya Company and Hangzhou Huaya Industry Company, et al. As a result, they seriously impacted the trading prices and trading quantity of the 0048 stock, and manipulated the trading prices of the 0048 stock. 被告人董沛霖在担任上海华亚实业发展公司法定代表人期间,在明知吕新建需要资金操纵股票交易价格的情况下,直接或指使被告人何宁一以杭州华亚实业公司、被告人李芸以上海华亚实业发展公司等名义在黑龙江、浙江、上海等地,采取以上海华亚实业发展公司、杭州华亚实业公司等或董沛霖个人名义与出资单位或个人签定借款合同、资产委托管理协议书等形式筹集资金共计人民币7亿余元,并按照吕新建的指令用于操纵股票交易价格。
During the period when Dong Peilin served as legal representative of Huaya Company, and under the circumstance that he clearly knew Lü Xinjian needed funds to manipulate the stock trading prices, he still directly concluded loan contracts and agreements on entrusted management of assets, etc. with investing entities or individuals in Heilongjiang, Zhejiang, Shanghai and other places in the names of Huaya Company, Hangzhou Huaya Industry Company or Dong Peilin, or instigated He Ningyi to do so in the name of Hangzhou Huaya Industry Company and Li Yun to do so in the name of Huaya Company. In this way, he raised a total amount of CNY 700 million odd of funds, and used such funds pursuant to Lü Xinjian's orders to manipulate stock trading prices. 被告人何宁一在担任杭州华亚实业公司法定代表人期间,在董沛霖指使下,明知吕新建意图操作股票交易价格,还先后在浙江省采取以杭州华亚实业公司等名义与出资单位或个人签定借款合同等形式筹集资金3.2亿余元,并直接或指令他人将所筹集的资金根据被告人董沛霖、丁福根、庞博等人的自买自卖等要求,进行买卖交易,操纵股票交易价格。
During the period when He Ningyi served as legal representative of Hangzhou Huaya Industry Company, he was instigated by Dong Peilin to, when clearly knowing Lü Xinjian's attempt to manipulate the stock trading prices, have successively raised CNY 320 million odd of funds in Zhejiang Province by way of concluding loan contracts with investing entities or individuals in the name of Hangzhou Huaya Industry Company, etc., and used the raised funds to directly trade in stocks and manipulate the stock trading prices pursuant to the requirements of Dong Peilin, Ding Fugen and Pang Bo, et al on trading with themselves, or to order others to do so. 被告人李芸在担任上海华亚实业发展公司总经理期间,在被告人董沛霖的指使下,明知吕新建意图操纵股票交易价格,还先后在上海、江西等地采取以上海华亚实业发展公司等名义与出资单位或个人签定借款协议、资产委托管理协议等形式筹集资金3.1亿余元,并直接或指令他人将所筹集资金根据被告人董沛霖、丁福根、庞博等人的自买自卖等要求进行股票的买卖交易。
During the period when Li Yun served as general manager of Huaya Company, he was instigated by Dong Peilin to, when clearly knowing that Lü Xinjian's attempt to manipulate the stock trading prices, have successively raised CNY 310 million odd of funds in Shanghai, Jiangxi and other regions by way of concluding loan agreements and agreements on entrusted management of assets with investing entities or individuals in the name of Huaya Company, etc., and used the raised funds to directly trade in stocks pursuant to the requirements of Dong Peilin, Ding Fugen and Pang Bo, et al on trading with themselves, or to order others to do so. 被告人边军勇在吕新建指使下,为操纵股票交易价格,在吕新建成立北京克沃科技公司担任法定代表人,并利用该公司等名义先后在湖北、北京等地与出资单位签定投资委托协议书、投资合作协议书等形式筹集资金1.4亿余元,并直接或指令他人将所筹集的资金根据被告人丁福根、庞博等人的自买自卖等要求,进行股票的买卖交易。
Under the instigation of Lü Xinjian, Bian Junyong served as legal representative of Beijing Kewo Technology Company established by Lü Xinjian to manipulate the stock trading prices. He also made use of the name of the company to have raised CNY 140 million odd of funds by successively concluding agreements on entrusted investment or investment cooperation agreements, etc. with investing entities in Hubei, Beijing and other regions, and used raised funds to directly trade in stocks pursuant to the requirements of Ding Fugen and Pang Bo, et al on trading with themselves, or to order others to do so. 被告人刘蕾于2001年1月至4月间,在明知被告人丁福根因操纵股票行为可能被公安机关查处时,寻找住处藏匿丁福根,并为自己及丁福根制作假身份证两张,以逃避公安机关抓捕。
From January to April 2001, Liu Lei looked for a dwelling place to hide Ding Fugen when clearly knowing that Ding Fugen might be investigated by the public security organ due to his manipulation of stocks, and made two false identity certificates, one for herself and another for Ding Fugen, so as to help Ding in evading the seizure of the public security organ. 公诉机关认为,被告单位上海华亚实业发展公司、被告人丁福根、董沛霖、庞博、何宁一、李芸、边军勇操纵证券交易价格,获取不正当利益,触犯了《中华人民共和国刑法》(以下简称刑法)第一百八十二条之规定,构成了操纵证券交易价格罪;被告人刘蕾明知丁福根涉嫌犯罪而为其提供住所等便利,帮助其逃匿,触犯了刑法三百一十条第一款之规定,构成了窝藏罪。提请依法惩处。
The prosecuting organ held that, Huaya Company, Ding Fugen, Dong Peilin, Pang Bo, He Ningyi, Li Yun and Bian Junyong violated Article 182 of the “Criminal Law of the People's Republic of China” (hereinafter referred to as the Criminal Law) by manipulating the securities trading prices and gaining illegitimate interests, and had committed the crime of manipulating securities trading prices; Liu Lei clearly knew that Ding Fugen was suspected to be involved in the crime but still provided dwelling conveniences, etc. for Ding Fugen and helped him in escaping, hence Liu Lei violated Paragraph 1 of Article 310 of the Criminal Law, and had committed the crime of concealment. The prosecuting organ requested the court to punish the defendants according to law. 被告人丁福根辩称:不知道吕新建企图操纵股票交易价格,本人也没有操纵证券交易价格的故意。其辩护人认为:丁福根不具有操纵证券交易价格的故意;本案中的“倒仓”和“对敲”行为已使股票所有权发生了转移,不属于刑法规定的“自买自卖”情形;丁福根系本案的从犯。
Ding Fugen argued: I did not know that Lü Xinjian attempted to manipulate stock trading prices, nor did I have the intention of manipulating securities trading prices. His defender held: Ding Fugen did not have the intention of manipulating securities trading prices; the acts of “pre-arranged trading” and “bucketing” in the present case resulted in transfer of the ownership of stocks, and were not under the circumstance of “trading with themselves” under the Criminal Law; Ding Fugen was an accomplice in the present case. 被告人董沛霖辩称:当时不明知吕新建操纵证券交易价格。其辩护人认为:董沛霖的行为系职务行为,属单位犯罪,董沛霖只应承担单位直接负责的主管人员的责任;董沛霖及其所属公司仅参与了筹集资金,未实施操纵证券交易价格行为;董沛霖是为了让吕新建偿还合法债务才实施了融资行为,其所属公司获取的是联系、介绍资金的中介费,没有利用股票价格获得不正当利益。
Dong Peilin argued: I did not know Lü Xinjian manipulated securities trading prices. The defender of Dong Peilin held: Dong Peilin's acts were service acts, and the crime was a crime committed by an entity, hence Dong Peilin should only bear the liabilities which the directly responsible person-in-charge ought to bear; Dong Peilin and his company only participated in raising the funds, and did not manipulate the securities trading prices; it was for helping Lü Xinjian in repaying lawful debts that Dong Peilin committed the financing act, and his company merely got the intermediary service charges for contacting and recommending the funds, instead of making use of the stock prices to obtain illegitimate interests. 被告人庞博对起诉书指控的犯罪事实未提出异议。其辩护人认为:庞博未参与谋划操纵证券交易价格,其行为均是传达指令;庞博系主动投案自首,希望对其免予刑事处罚。
Pang Bo did not propose any objection to the criminal facts described in the bill of indictment. The defender of Pang Bo held: Pang Bo did not participate in plotting to manipulate the securities trading prices, and she just transmitted orders; moreover, Pang Bo voluntarily delivered herself to justice and surrendered. The defender hoped that the court could exempt Pang Bo from criminal penalties. 被告人何宁一辩称:事先不知道吕新建操纵证券交易价格。其辩护人认为:何宁一是以所在公司的名义融资,其参与的六笔融资贷款条件是吕新建制定的,其本人不清楚质押款的来源和贷款的去向,对担保单位情况亦不清楚;未提供股东卡,也不知道其他被告人操纵证券交易价格的情况,建议对何宁一免予刑事处罚。
He Ningyi argued: I did not know Lü Xinjian manipulated securities trading prices. His defender held: He Ningyi financed in the name of the company for which he worked, and the conditions for the six sums of financing loans he participated in were set forth by Lü Xinjian; he himself was not clear about the sources of the pledged money or the whereabouts of the loans, nor was he clear about the information on the guarantor; he did not provide the shareholder's card, nor did he know about other defendants' manipulation of the securities trading prices. The defender suggested that the court exempt He Ningyi from criminal penalties. 被告人李芸辩称:没有操纵证券交易价格的故意,也没有实力和资格操纵证券交易价格,所为的行为都是职务行为;起诉书指控的54亿元融资款存在重复计算的情况。其辩护人认为:李芸及上海华亚实业发展公司没有操纵证券交易价格的故意,也没有证据证明李芸是在明知吕新建意图操纵股票价格的情况下,通过操纵证券交易价格转嫁风险,获取不正当利益;应宣告李芸无罪。
Li Yun argued: I did not have the intention to manipulate securities trading prices, and had no strength or capacity to do so; actually, all my acts were service acts; the CNY 5.4 billion of financing as described in the bill of indictment was calculated repeatedly. His defender held: neither Li Yun nor Huaya Company had the intention to manipulate securities trading prices, nor was there any evidence to prove that Li Yun gained the illegitimate interests by manipulating securities trading prices to transfer risks under the circumstance of clearly knowing Lü Xinjian's attempt to manipulate the stock prices; Li Yun should be declared as innocent. 被告人边军勇对起诉书指控的犯罪事实未提出异议。其辩护人认为:边军勇系从犯,仅起次要和辅助作用,且认罪态度好,无前科劣迹,希望对其适用缓刑。
Bian Junyong did not propose any objection to the criminal facts described in the bill of indictment. His defender held: Bian Junyong was an accomplice, who played a secondary or auxiliary role; moreover he showed a good attitude of peccavi, and had no history of criminal record. The defender hoped that the court could apply suspension of sentence to Bian Junyong. 被告人刘蕾辩称:因与丁福根是夫妻关系,所以实施了起诉书指控的行为,请求从轻处理。其辩护人认为:刘蕾犯罪情节轻微,认罪、悔罪,且系初犯,希望对其免予刑事处罚。
Liu Lei argued: Ding Fugen and I are husband and wife, so I committed the act described in the bill of indictment. She pleaded with the court for lighter punishment. Her defender held: Liu Lei's criminal circumstances were minor, and she confessed her crime and showed repentance; moreover, she was a first offender. The defender hoped that the court could exempt her from criminal penalties. 北京市第二中级人民法院经审理查明:
It was verified by Beijing No. 2 Intermediate Court after trial that: 
I. From November 1998 to January 2001, Lü Xinjian and Zhu Huanliang (both were punished separately in another case) colluded with each other to manipulate the circulation stock of Shenzhen Kondarl (Group) Joint Stock Limited Company (the name of the stock was Kondarl A, and the stock code was 0048, hereinafter referred to as the 0048 stock). Both parties concluded a cooperation agreement, and jointly held the 0048 stock according to the proportions agreed upon between them. 一、1998年11月至2001年1月期间,吕新建与朱焕良 (均另行处理)合谋操纵深圳康达尔(集团)股份有限公司的流通股(股票名称为康达尔A,股票代码0048,以下简称0048股票),双方签定了合作协议,并按约定比例共同持有0048股票。
Being instigated by Lü Xinjian, Ding Fugen, Pang Bo, Dong Peilin, He Ningyi, Li Yun and Bian Junyong, et al successively opened more than 1,500 shareholder's accounts in more than 120 securities business departments including Shenyin Wanguo Securities Joint Stock Limited Company, Shanghai Lujiabang Business Department, and Zhongxing Trust & Investment Limited Liability Company, Beijing Asian Games Village Business Department in the names of entities or individuals in more than 20 provinces, autonomous regions and municipalities directly under the Central Government including Beijing, Shanghai and Zhejiang; they also, via the business departments or other offices of relevant securities companies, financed CNY 5 billion odd from investing entities or individuals by way of entrusted financial management, repurchase of treasury bonds or borrowing loans, etc, and used the funds to manipulate the 0048 stock. During that period, Lü Xinjian made use of Hainan Yanyuan Investment Management Limited Company, Hainan Wohe Biological Technology Limited Company, Minle Yanyuan Investment Management Limited Company and other companies to purchase a large quantity of corporate shares of Shenzhen Kondarl (Group) Joint Stock Limited Company, and controlled the board of directors of that company. Later, Lü Xinjian changed the name of Shenzhen Kondarl (Group) Joint Stock Limited Company into Shenzhen China Venture Capital (Group) Joint Stock Limited Company (and the stock was renamed as China Venture Capital), and impacted the trading prices of the 0048 stock by publishing “good” news such as development of hi-tech products or enterprise restructuring, etc. 在吕新建的指使下,被告人丁福根、庞博、董沛霖、何宁一、李芸、边军勇等人,在北京、上海、浙江等20余个省、自治区、直辖市,以单位或个人名义,先后在申银万国证券股份有限公司上海陆家浜营业部、中兴信托投资有限责任公司北京亚运村营业部等120余家证券营业部开设股东帐户1500余个;并通过相关证券公司的营业部等机构,以委托理财、国债回购、借款等方式,向出资单位或个人融资人民币50余亿元,用于操纵0048股票。其间,吕新建利用海南燕园投资管理有限公司、海南沃和生物技术有限公司、民乐燕园投资管理有限公司等公司,大量收购深圳康达尔(集团)股份有限公司法人股,并控制了该公司董事会。后吕新建将深圳市康达尔(集团)股份有限公司更名为深圳市中科创业投资(集团)股份有限公司(股票名称更名为中科创业),并通过发布开发高科技产品、企业重组等“利好”消息的方式影响0048股票的交易价格。
In the process of manipulating the 0048 stock, Ding Fugen and Pang Bo followed Lü Xinjian's orders to determine the trading time, price and quantity of the 0048 stock after negotiating with Zhu Huanliang, and then directly traded in the 0048 stock or ordered others to do so. In order to disperse the quantity of the 0048 stock they held, and to conceal their manipulation of the prices of the 0048 stock, Ding Fugen, Pang Bo, He Ningyi, Li Yun and Bian Junyong et al made use of the opened securities trading account and shareholder's accounts and centralized their fund advantages and shareholding advantages, jointly and continuously manipulated the 0048 stock by trading with themselves without transferring the ownership. Lü Xinjian maximumly held or controlled more than 56 million shares of the 0048 stock, accounting for 55.36% of the total quantity of the 0048 circulation stock, and seriously impacted the trading prices and trading quantity of the 0048 stock. Ding Fugen, et al also accepted Lü Xinjian's order to gain profits by trading in Zhongxi Pharmaceutical Stock, Masteel Stock, Laiwu Steel Stock and Shirble Electric-heat Stock, etc., and used the profits to maintain the prices of the 0048 stock and to repay the huge amount of financing. 在操纵0048股票的过程中,丁福根、庞博根据吕新建的指令,在与朱焕良商定了0048股票交易的时间、价位、数量后,直接或指令他人交易0048股票。为分散持有0048股票的数量,掩盖操纵0048股票价格的行为,丁福根、庞博、何宁一、李芸、边军勇等人利用开设的多个证券交易帐户和股东帐户,集中资金优势、持股优势,联合、连续对0048股票进行不转移所有权的自买自卖等操纵活动。吕新建一方最高持有或控制0048股票达5600余万股,占0048股票流通股总量的55.36%,严重影响了0048股票交易价格和交易量。丁福根等人还接受吕新建指令,通过对中西药业、马钢股份、莱钢股份、岁宝热电等股票的交易,获取利润,用于维持0048股票价格的稳定和偿还巨额融资款。
During the period when Dong Peilin served as legal representative of Huaya Company, he clearly knew that Lü Xinjian attempted to manipulate the 0048 stock, but still negotiated with Li Yun (the general manager) and He Ningyi (legal representative of Hangzhou Huaya Industry Company) to, by helping Lü Xinjian in financing, gain interests for their respective companies. Dong Peilin totally made CNY 770 million odd of financing for Lü Xinjian either directly or by instigating He Ningyi and Li Yun, et al. Among that amount, Dong Peilin raised 7 sums of funds totaling CNY 124 million odd by way of purchasing treasury bonds and repurchase, etc. via 7 business departments or investing entities including Harbin Tengda Pawnshop, Shenyang Terminal Road Business Department of Liaoning Securities Limited Liability Company, etc. He Ningyi borrowed loans from Hangzhou Industrial and Commercial Trust & Investments Ltd. and Zhejiang Province Trust & Investments Ltd. in the name of Hangzhou Huaya Industry Company, and borrowed loans from Hangzhou Commercial Bank, Huaxia Bank, Hangzhou Wulin Sub-branch, etc. in the names of Hangzhou Huaya Real Estate Company and Zhejiang Jinnuo Real Estate Company. In this way, he totally made CNY 330 million of financing. He Ningyi also followed Pang Bo's orders to trade in the 0048 stock and Shirble Electric-heat Stock, Laiwu Steel Stock, etc. Li Yun totally made CNY 316 million of financing from 12 business departments including Shanghai Yan'an West Road Business Department and Tianping Road Business Department of Haitong Securities Joint Stock Limited Company, Shangrao Business Department of Jiangnan Trust & Investments Ltd. in the name of Huaya Company, etc. Li Yun also followed the orders of Ding Fugen and Pang Bo to trade in the 0048 stock and Laiwu Steel Stock, Masteel Stock, etc., and even ordered the business departments to do so. 被告人董沛霖在担任上海华亚实业发展公司法定代表人期间,明知吕新建意图操纵0048股票,仍与总经理李芸及杭州华亚实业公司法定代表人何宁一商定,通过帮助吕新建融资为各自所在公司获取利益。董沛霖直接或指使被告人何宁一、李芸等人共为吕新建融资人民币7.7亿余元。其中,董沛霖通过哈尔滨腾达典当行、辽宁证券有限责任公司沈阳总站路营业部等7家营业部或出资单位,采取国债回购等形式融资7笔,共计人民币1.24亿余元。何宁一以杭州华亚实业公司的名义,向杭州工商信托投资公司、浙江省信托投资公司贷款;以杭州华亚房地产公司、浙江金诺房地产公司的名义,向杭州市商业银行、华夏银行杭州武林支行等单位贷款,共融资人民币3.3亿元。何宁一还根据庞博的指令,买卖0048股票及岁宝热电、莱钢股份等股票。李芸以上海华亚实业发展公司等名义,在海通证券股份有限公司上海延安西路营业部、天平路营业部、江南信托投资公司上饶营业部等12家营业部,共融资人民币3.16亿元。李芸还接受丁福根、庞博的指令买卖或由其指令营业部买卖0048股票及莱钢股份、马钢股份等股票。
In May and June 1999, Bian Junyong clearly knew Lü Xinjian's attempt to manipulate the 0048 stock, but still assisted Lü Xinjian in registering and establishing Beijing Kewo Technology Limited Company, and served as legal representative of that company. Later, Bian Junyong made CNY 150 million odd of funds in the name of the company or other companies as per Lü Xinjian's orders, and bought or made sub-trusteeship of the 0048 stock, Masteel Stock, Zhongxi Pharmaceutical Stock and other stocks as per the orders of Ding Fugen and Pang Bo. 1999年5、6月间,被告人边军勇在明知吕新建意图操纵0048股票的情况下,协助吕新建注册成立了北京克沃科技有限公司,并担任该公司法定代表人。后边军勇以该公司或其他公司名义按照吕新建的指令融资人民币1.5亿余元,并按照丁福根、庞博的指令购买或转托管0048股票及马钢股份、中西药业等股票。
2. From the end of December 2000 to early January 2001, after Ding Fugen got away from Beijing due to continuous crash of the price of the 0048 stock, Liu Lei learned that Lü Xinjian and Ding Fugen, et al might be involved in the crime of manipulating securities trading prices. In mid-January 2001, Ding Fugen came back to Beijing and then asked Liu Lei for a place to hide himself. Liu Lei immediately concealed Ding Fugen in Suite 502, Unit 7, 3rd Floor, Sipingyuan, Taoranting, Xuanwu District, Beijing, and made false identity certificates, one for herself and another for Ding Fugen, so as to help Ding Fugen in evading the public security organ's seizure. 二、2000年12月底至2001年1月初,被告人丁福根因0048股票的价格连续暴跌逃离北京后,被告人刘蕾得知吕新建、丁福根等人的行为可能涉嫌操纵证券交易价格犯罪。2001年1月中旬,丁福根回到北京后向刘蕾提出,要找地方躲藏。刘蕾即将丁福根藏匿于本市宣武区陶然亭四平园3楼7单元502号,并为自己和丁福根制作了假身份证,以逃避公安机关抓捕。
After the case was reported, Pang Bo surrendered to the public security organ, while Ding Fugen, Dong Peilin, He Ningyi, Li Yun, Bian Junyong and Liu Lei were seized and brought to justice. 案发后,被告人庞博向公安机关自首,被告人丁福根、董沛霖、何宁一、李芸、边军勇、刘蕾被抓获归案。
The above-mentioned facts can be proved with the following evidence: testimonies of witnesses Li Wen, Wang Shaohua, Chen Feng, Zhuang Yan, Mao Weibing, Zhu Wenxue, Ning Xinran, Pan Qing, Niao Fei, and He Shuangyan, et al; documentary evidence including audit reports, financing agreements with business departments, agreements on entrusted financial management, contracts of cooperation on financial management, agreements on entrusted management of funds, agreements on entrusted investments, loan agreements, agreements on entrusted supervision of pledged securities assets, contracts on payment of fee charges for guaranty of CNY loans, agreements on financing supervision of pledged stocks, contracts on management of trusted assets, agreements on entrusted management of treasury bonds, and Shenzhen Stock Exchange's comprehensive report, etc.; the relevant attestations and authentication conclusions issued by the public security organ; the confessions of each defendant and the forged identity certificates, etc. These items of evidence were confirmed after cross-examination in court. 上述事实,有证人李文、王少华、陈枫、庄严、毛卫兵、朱文学、宁欣然、潘菁、缪飞、何双燕等证人的证言;审计报告、营业部融资协议书、委托理财协议书、合作理财合同、资金委托协议书、投资委托协议书、借款协议、委托监控质押证券资产协议书、支付人民币借款担保费用合同、股票质押融资监管协议书、信托资产管理合同、委托管理国债协议书及深圳证券交易所的综合报告等书证;公安机关出具的有关证明和鉴定结论;各被告人的供述以及伪造的身份证等证据证明。这些证据经当庭质证,予以确认。
Beijing No. 2 Intermediate Court held that: 北京市第二中级人民法院认为:
Article 182 of the Criminal Law prescribes: “Whoever commits any of the following acts by manipulating stock prices in order to gain illegitimate profits or transfer risks shall, if the circumstances are serious, be sentenced to fixed-term imprisonment of not more than five years or criminal detention and shall also, or shall only, be fined not less than one time but not more than five times the illegal proceeds: (1) manipulating stock prices by working alone or plotting with another in concluding transactions jointly or continuously upon strength of the advantages in the holding of funds or shares or in the use of information; (2) Impacting stock prices or the volume of stock transactions by colluding with another and carrying out stock exchange between themselves upon a time, at a price and in a manner previously agreed upon, or trading with themselves in the securities they do not hold; (3) Impacting stock prices or the volume of stock transactions by taking himself as the counterpart of transaction and trading in stocks with himself without transferring ownership of the stock; or (4) Manipulating stock prices by any other means. Where an entity commits any of the crimes mentioned in the preceding paragraph, it shall be fined, and the persons directly in charge and the other persons held directly responsible for the crime shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention.” Paragraph 1 of Article 310 prescribes: “Whoever knowingly provides a hiding place, money or property to a criminal, or helps the criminal in escaping or gives false testimony to protect the criminal shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years.” 刑法一百八十二条规定:“有下列情形之一,操纵证券交易价格,获取不正当利益或者转嫁风险,情节严重的,处五年以下有期徒刑或者拘役,并处或者单处违法所得一倍以上五倍以下罚金:(一)单独或者合谋,集中资金优势、持股优势或者利用信息优势联合或者连续买卖,操纵股票交易价格的;(二)与他人串通,以事先约定的时间、价格和方式互相进行证券交易或者互相买卖并不持有的证券,影响证券交易价格或者交易量的;(三)以自己为交易对象,进行不转移证券所有权的自买自卖,影响证券交易价格或者证券交易量的;(四)以其他方式操纵证券交易价格的。单位犯前款罪的,对单位判处罚金,并对其直接负责的主管人员和其他直接责任人员,处五年以下有期徒刑或者拘役。”第三百一十条第一款规定:“明知是犯罪的人而为其提供隐藏处所、财物,帮助其逃匿或者作假证明包庇的,处三年以下有期徒刑、拘役或者管制;情节严重的,处三年以上十年以下有期徒刑。”
In the prosecution of the No. 2 Branch of the People's Procuratorate of Beijing Municipality against Huaya Company, Ding Fugen, Dong Peilin, Pang Bo, He Ningyi, Li Yun and Bian Junyong on committing the crime of manipulating securities trading prices, and the prosecution against Liu Lei on committing the crime of concealment, the facts were clear, and the evidence was true and sufficient. Ding Fugen, Pang Bo and Bian Junyong were to gain illegitimate interests, Dong Peilin (legal representative of Huaya Company) and Li Yun (general manager) were to gain illegitimate interests for the company, and He Ningyi was to gain illegitimate interests for the entity for which he worked. All of them clearly knew that Lü Xinjian, et al attempted to manipulate the prices of the 0048 stock, but still helped Lü Xinjian in financing in many ways, and followed Lü Xinjian's orders to instigate others to manipulate the prices of the 0048 stock or even did so directly. They had seriously impacted the trading prices and trading quantity of the 0048 stock, and had violated the administrative rules of the state on securities trading and injured the lawful rights and interests of investors. As the circumstances of their acts were serious, all their acts had constituted the crime of manipulating securities trading prices, and should be punished according to law; Liu Lei clearly knew that Ding Fugen was suspected to have committed the crime, but still provided the place for hiding him, and helped him in escaping, hence her acts impeded the judicial organ's criminal prosecution against the criminal suspects, hence she had constituted the crime of concealment and should be punished according to law, too. 北京市人民检察院第二分院指控被告单位上海华亚实业发展公司,被告人丁福根、董沛霖、庞博、何宁一、李芸、边军勇犯操纵证券交易价格罪,指控被告人刘蕾犯窝藏罪的事实清楚,证据确实、充分。丁福根、庞博、边军勇为获取不正当利益,上海华亚实业发展公司法定代表人董沛霖、总经理李芸为使该单位获取不正当利益,何宁一为使所在单位获取不正当利益,明知吕新建等人意图操纵0048股票价格,仍采取多种方式帮助吕新建融资,并按照吕新建的指令指使他人或直接参与操纵0048股票价格,严重影响了0048股票的交易价格和交易量,侵害了国家对证券交易的管理制度和投资者的合法权益,情节严重,其行为均已构成操纵证券交易价格罪,依法应予惩处;刘蕾明知丁福根涉嫌犯罪,仍为其提供隐藏处所,帮助其逃匿,其行为妨害了司法机关对犯罪嫌疑人的刑事追诉活动,已构成窝藏罪,依法亦应惩处。
Ding Fugen argued and his defender held that Ding Fugen did not know Lü Xinjian manipulated the trading prices of the 0048 stock, and the manipulation was not Ding Fugen's true will. However, after verification, the evidence involved proves that in the end of 1997, Ding Fugen knew Lü Xinjian's attempt to speculate in the stocks on the secondary market of listed companies, and helped Lü Xinjian in doing a lot of preparatory work; in the process of manipulating the 0048 stock, Ding Fugen followed Lü Xinjian's orders to actively participate in various manipulation activities and to instigate others to do so. In conclusion, Ding Fugen's argument and his defender's defending opinions were short of factual basis, and should not be adopted. 被告人丁福根及其辩护人所提丁福根不明知吕新建操纵0048股票交易价格,操纵行为并非其本意的辩解和辩护意见,经查,在案证据证明1997年年底,丁福根就知道吕新建欲炒作上市公司二级市场股票的意图,并帮助吕新建做了大量准备工作;在操纵0048股票的过程中,丁福根按照吕新建的指令,积极参与并指使他人进行各种操纵活动。丁福根的辩解及其辩护人的辩护意见无事实依据,故均不予采纳。
Ding Fugen's defender held that the acts of “pre-arranged trading” and “bucketing” as mentioned in the present case were not the act of “trading with themselves” under the Criminal Law since the ownership of the stocks was actually transferred. However, it was verified that Ding Fugen, et al opened fund accounts in the business departments of relevant securities companies and illegally opened several shareholder's accounts under the fund accounts in order to manipulate the 0048 stock; although in the process of manipulation of the 0048 stock, the stocks were transferred between different shareholder's accounts, such transfer either occurred between the above-mentioned illegally opened accounts, or was for the sake of the manipulation acts of Ding Fugen, et al. Ding Fugen, et al traded in the stock in this way, and not only failed to transfer the ownership of the 0048 stock, but also caused the feint on vibrant trading of the stock. As a result, they impacted investors' estimation of the stock market and the trading prices of that stock. In conclusion, the above-mentioned trading acts of Ding Fugen, et al were the act of trading with themselves without transferring the ownership of securities. 被告人丁福根的辩护人所提由于股票的所有权发生了转移,所以本案中的“倒仓”、“对敲”行为不属于刑法规定的“自买自卖”的辩护意见,经查,丁福根等人为操纵0048股票,在有关证券公司营业部分别开设了资金帐户,并在资金帐户下非法开立多个股东帐户;在操纵0048股票的过程中,虽然发生了股票在不同股东帐户间的转移,但这种转移或发生在上述非法开立的帐户之间,或与丁福根等人的操纵行为有关,丁福根等人以这种方式进行交易,不但没有使0048股票所有权发生转移,而且造成该股票交易活跃的假象,影响了投资者对股市行情的判断和该股票的交易价格。丁福根等人的上述交易行为属于不转移证券所有权的自买自卖行为。
Ding Fugen's defender held that Ding Fugen played a secondary role in the present case, and was an accomplice. However, it was verified that in the process of manipulating the 0048 stock, Ding Fugen not only contacted others for financing and concluded financing agreements, but also followed the orders of Lü Xinjian and Zhu Huanliang to distribute trading orders to traders and acted as the authorized person's agent to open stock accounts, engage in trading and allot funds in several business departments; in June 2000, he changed the fund allotter in order to evade CSRC's superintendence; moreover, Ding Fugen made position statements, financing statements, stock price trend graphs and other materials in order to fully grasp and control the prices of the 0048 stock. As a matter of fact, Ding Fugen had all along actively participated in criminal activities of manipulating the 0048 stock, instead of merely playing a secondary role. Hence he should not be ascertained as an accomplice in the present case. Therefore, the above-mentioned defending opinions of Ding Fugen's defender should not be adopted. 被告人丁福根的辩护人所提丁福根在本案中起次要作用,系从犯的辩护意见,经查,丁福根在操纵0048股票的过程中,不仅联系融资、签署融资协议,而且按照吕新建、朱焕良的指令向交易员下达交易指令,并在多个营业部作为被授权人的代理人,办理股票开户、交易和资金调拨等事项;在2000年6月,其又更换资金调拨人逃避证监会的监管;丁福根为全面掌握控制0048股票价格的情况,还制作了持仓表、融资表、股票走势图等材料。丁福根自始自终都积极参与了操纵0048股票的犯罪活动,并非起到了次要作用,不能认定是本案的从犯。故对丁福根辩护人的上述辩护意见,均不予采纳。
Dong Peilin and He Ningyi argued that they did not clearly know Lü Xinjian's manipulation of the securities trading prices. However, it was verified that Lü Xinjian had clearly told Dong Peilin of his attempt to manipulate the 0048 stock. Dong Peilin confessed the fact for many times, and there is his autographical confession to prove this fact. Dong Peilin also told He Ningyi and Li Yun of Lü Xinjian's “new philosophy” of attempting to manipulate the 0048 stock and the demands for financing. They three determined through discussion to seek interests for their company by helping Lü Xinjian in financing. Hence the above-mentioned arguments of Dong Peilin and He Ningyi should not be adopted. Dong Peilin's defender held that it was for the purpose of repaying Lü Xinjian's debts that Dong Peilin and his company participated in the financing, and they merely received intermediary service charges instead of illegitimate interests in the financing. However, it was verified that, Dong Peilin, et al did help Lü Xinjian in financing, and although they aimed to help Lü Xinjian repay the arrears as soon as possible, the said arrears and the interests got by Lü Xinjian's company from the financing were all illegitimate interests from Lü Xinjian, and et al's manipulation of the securities trading prices. Therefore, the above-mentioned defending opinions of Dong Peilin's defender should not be adopted. 被告人董沛霖、何宁一关于当时并不“明知”吕新建操纵证券交易价格的辩解,经查,吕新建明确告诉董沛霖其意图操纵0048股票,董沛霖对此有多次供述,并有亲笔供词在案证明。董沛霖还将吕新建意图操纵0048股票的“新理念”及需要融资的要求分别告诉了何宁一、李芸,三人商定通过帮助吕新建融资为所在单位谋取利益。故对董沛霖、何宁一的上述辩解不予采纳。董沛霖的辩护人关于董沛霖及其公司参与融资只是为了使吕新建欠其的债务得到偿还,在融资中单位获取的是中介费,而不是不正当利益的辩护意见,经查,董沛霖等人帮助吕新建融资,虽然有让吕新建尽快偿还欠款的目的,但吕新建偿还的欠款及其所在公司因融资获得的利益均是吕新建等人操纵证券交易价格后获得的不正当利益。故对董沛霖的辩护人的上述辩护意见不予采纳。
Li Yun argued that he did not have the intention to manipulate securities trading prices, nor was he capable of committing the manipulation. However, the evidence in question was found after verification to show that Li Yun clearly knew Lü Xinjian's attempt to manipulate the 0048 stock, but still followed the consensus reached with Dong Peilin and He Ningyi to, in the name of the company for which he worked, make financing for Lü Xinjian, and accepted the orders of Ding Fugen and Pang Bo to trade in the 0048 stock, Laiwu Steel Stock, Masteel Stock, etc. Li Yun's acts were one of the stages of Lü Xinjian, and et al's manipulation of the securities trading prices; Li Yun's argument that the CNY 5.4 billion of prosecuted financing amount was calculated repeatedly was found after verification to be short of factual basis. Hence Li Yun's above-mentioned argument should not be adopted. 被告人李芸关于其没有操纵证券交易价格的故意,亦没有实力实施操纵行为的辩解,经查,在案证据表明李芸明知吕新建意图操纵0048股票,仍按照与董沛霖、何宁一达成的共识,以其所在公司的名义为吕新建融资,并接受丁福根、庞博的指令买卖0048股票及莱钢股份、马钢股份等股票,其行为系吕新建等人操纵证券交易价格的环节之一;李芸关于指控融资金额54亿元存在重复计算的辩解,经查没有事实依据。故对李芸的上述辩解不予采纳。
The defending opinions of Li Yun's defender that Li Yun and Huaya Company had no intention to manipulate the securities trading prices, that Li Yun's acts did not conform to Article 182 of the Criminal Law and did not constitute the crime of manipulating securities trading prices, and that Li Yun should be declared innocent, were short of factual or legal basis, and should not be adopted. 被告人李芸的辩护人关于李芸及上海华亚实业发展公司没有操纵证券交易价格的故意,李芸的行为不符合刑法一百八十二条的规定,不构成操纵证券交易价格罪,应宣告李芸无罪的辩护意见,没有事实及法律依据,不予采纳。
The argument of Pang Bo and the defending opinions of his defender that Pang Bo surrendered; the defending opinions of the defenders of Dong Peilin, He Ningyi and Li Yun that the acts of Dong Peilin, He Ningyi and Li Yun were service acts and the crime was a crime committed by the entity; and the opinion of Liu Lei's defender that Liu Lei's criminal circumstances were minor, were all found after verification to be true, and should be adopted. Dong Peilin, He Ningyi and Li Yun were all directly responsible persons in charge of their respective entities, and should bear corresponding criminal liabilities according to law. Pang Bo surrendered herself after the case was reported, and should be given a lighter punishment according to law. Liu Lei's criminal circumstances were minor, and she did not need to be subject to criminal penalties. 被告人庞博及其辩护人关于庞博有自首情节的辩解及辩护意见;被告人董沛霖、何宁一、李芸的辩护人关于董沛霖、何宁一、李芸的行为系职务行为,属单位犯罪的辩护意见;刘蕾的辩护人关于刘蕾犯罪情节轻微经查属实,予以采纳。董沛霖、何宁一、李芸均系所在单位直接负责的主管人员,应依法承担相应的刑事责任;庞博案发后自首,依法对其从轻处罚;刘蕾犯罪情节轻微,可以不判处刑事处罚。
Therefore, Beijing No. 2 Intermediate Court adjudicated as follows on April 1, 2003: 据此,北京市第二中级人民法院于2003年4月1日判决:
1. Huaya Company has committed the crime of manipulating securities trading prices, and shall be fined CNY 23 million; 一、被告单位上海华亚实业发展公司犯操纵证券交易价格罪,判处罚金人民币二千三百万元;
2. Ding Fugen has committed the crime of manipulating securities trading prices, and shall be sentenced to fixed-term imprisonment of four years, and be fined CNY 500,000; 二、被告人丁福根犯操纵证券交易价格罪,判处有期徒刑四年,罚金人民币五十万元;
3. Dong Peilin has committed the crime of manipulating securities trading prices, and shall be sentenced to fixed-term imprisonment of two years and ten months; 三、被告人董沛霖犯操纵证券交易价格罪,判处有期徒刑二年零十个月;
4. He Ningyi has committed the crime of manipulating securities trading prices, and shall be sentenced to fixed-term imprisonment of two years and six months; 四、被告人何宁一犯操纵证券交易价格罪,判处有期徒刑二年零六个月;
5. Li Yun has committed the crime of manipulating securities trading prices, and shall be sentenced to fixed-term imprisonment of two years and six months; 五、被告人李芸犯操纵证券交易价格罪,判处有期徒刑二年零六个月;
6. Bian Junyong has committed the crime of manipulating securities trading prices, and shall be sentenced to fixed-term imprisonment of two years and two months, and be fined CNY 220,000; 六、被告人边军勇犯操纵证券交易价格罪,判处有期徒刑二年零二个月,罚金人民币二十二万元;
7. Pang Bo has committed the crime of manipulating securities trading prices, and shall be sentenced to fixed-term imprisonment of two years and three months, which shall be suspended by two years and six months, and be fined CNY 100,000; 七、被告人庞博犯操纵证券交易价格罪,判处有期徒刑二年零三个月,缓刑二年零六个月,罚金人民币十万元;
8. Liu Lei has committed the crime of concealment, but may be exempted from criminal penalties. 八、被告人刘蕾犯窝藏罪,免予刑事处罚。
9. The illicit properties in distrainment shall be confiscated or returned as the case may be, and the illegal proceeds shall continue to be recovered. 九、在案扣押的款物分别予以没收和发还,违法所得继续追缴。
BASIC FACTS 
After the judgment of the first instance was announced, Li Yun was dissatisfied and appealed; while none of the other defendants appealed. 一审宣判后,被告人李芸不服提出上诉;其他被告人没有提出上诉。
Li Yun's grounds for appeal were as follows: he did not manipulate securities trading prices for Lü Xinjian, et al, nor did he get any illegitimate interests, hence his acts did not constitute a crime. His defender held that, Li Yun did not have the subjective intention to manipulate securities trading prices, nor did he get illegitimate interests, hence his acts did not constitute a crime. 李芸上诉理由是:没有为吕新建等人操纵证券交易价格;没有获取不正当利益,其行为不构成犯罪。其辩护人认为,李芸没有操纵证券交易价格的主观故意,没有获取不正当利益,其行为不构成犯罪。
The Higher People's Court of Beijing Municipality (hereinafter referred to as Beijing Higher Court) held after trial that: 北京市高级人民法院经审理认为:
Although Li Yun argued that the judgment of the first instance inaccurately determined the nature and that his acts did not constitute a crime since he did not clearly know that Lü Xinjian, et al manipulated securities trading prices or get any illegitimate interests, and his acts did not constitute a crime since he did not know the facts subjectively, had no subjective intention to manipulate securities trading prices and did not get any illegitimate interests. It was verified that Dong Peilin confessed many times: “In September 1998, Lü Xinjian told me to help him in financing, and I told Li Yun that Lü Xinjian intended to trade in the 0048 stock and to be a banker for long by purchasing stock rights of listed companies and improving the company's performance. Lü Xinjian needed funds, so we may trade in stocks with him to make money if we helped him in financing. We will also offer some benefits to the fund providers. I told Li Yun to help Lü Xinjian in financing in Shanghai, and he agreed. Li Yun contacted others for financing, and I told Lü Xinjian of the conditions. Lü agreed on the conditions, and told me to contact Ding Fugen. I called Li Yun and told him to contact Ding Fugen. Several days later, Li Yun called me and said that Ding Fugen had gone to Shanghai, and he succeeded in making a bargain on that sum of financing”. “Every time when Li Yun succeeded in making a bargain on a sum of financing, he told me of the news, and I would ask Lü Xinjian for money. Lü Xinjian told me to ask Ding Fugen. In order to let Li Yun knew that the financing was made for the company, I required Ding Fugen to remit the money to Huaya Company's account.” Dong Peilin's autographical confession proves that, Lü Xinjian knew that he would manipulate the 0048 stock and needed to make financing, while Dong Peilin told Li Yun of the matter and Li Yun agreed. Both Ding Fugen and Pang Bo testified that they ordered Li Yun to buy the 0048 stock and other stocks. A lot of evidence proves that, Li Yun clearly knew that Lü Xinjian, et al manipulated securities trading prices, but still made financing of large amounts of funds and provided conditions for Lü Xinjian to manipulate securities trading prices; both the money got by Huaya Company and the interests got by the company from financing were sourced from the illegitimate interests got by Lü Xinjian, et al from manipulating securities trading prices. Li Yun also confessed that Dong Peilin said Lü Xinjian was the banker of manipulating the 0048 stock, and he proposed to help Lü Xinjian in financing, that he helped Ding Fugen in concluding financing contracts with the business departments of securities companies, including Haitong Securities Company, Shanghai Yan'an Road Business Department, or did so in the name of Huaya Company or an individual, with the financing totaling CNY 310 million. Therefore, Li Yun's grounds for appeal and his defender's defending opinions are short of basis, and shall not be adopted. 关于李芸上诉称一审判决定性不准,不明知吕新建等人操纵证券交易价格,没有获取不正当利益,其行为不构成犯罪的辩解和李芸的辩护人称李芸主观上不明知,没有操纵证券交易价格的主观故意,没有获取不正当利益,其行为不构成犯罪的辩护意见,经查,董沛霖曾多次供述“1998年9月,吕新建告诉我让我帮助他融资,我把吕新建要做0048股票,要做长庄,并且是通过收购上市公司股权,改善公司业绩来做,他需要资金,我们帮助吕新建融资可以和他一起做股票赚钱,还会给融资人一些好处,让李芸在上海帮助吕新建融资,他同意。李芸联系了融资的钱,我把条件告诉吕新建,吕同意,让我与丁福根联系,我给李芸打电话,告诉他与丁福根联系。几天后,李芸打电话告诉我丁福根去上海了,这笔融资谈成了”。“李芸每次谈完融资都告诉我,我就找吕新建要钱,吕新建让我找丁福根。我为了让李芸明白融资是给公司做,就让丁福根把钱汇到上海华亚实业发展公司的帐户上。”董沛霖的亲笔供词证明,吕新建对其将要操纵0048股票且需要融资,董沛霖把此事告诉了李芸,李芸同意。丁福根、庞博均证明,曾亲自给李芸下指令购买0048等股票。大量的证据证明,李芸对吕新建等人操纵证券交易价格是明知的,并为吕新建操纵证券交易价格大量融资,提供条件,上海华亚实业发展公司所获得的款项和其公司因融资获得的利益均来自吕新建等人操纵证券交易价格后获取的不正当利益。上诉人李芸曾对此亦供认,董沛霖说吕新建是操纵0048股票的庄家,并提出帮助吕新建融资,其帮助丁福根或以上海华亚实业发展公司、个人的名义与海通证券公司上海延安路营业部等证券公司营业部签订融资合同,共融资3.1亿元。故上诉人李芸的上诉理由及其辩护人的辩护意见缺乏依据,不予采纳。
JUDGMENT 
To sum up, in the judgment rendered by Beijing No. 2 Intermediate Court on the basis of the criminal facts of Huaya Company, Ding Fugen, Dong Peilin, Pang Bo, He Ningyi, Li Yun, Bian Junyong and Liu Lei, as well as the natures, the circumstances and the degree of harm to the society, the facts were clear, the evidence was true and sufficient, the convictions were accurate, the punishments were meted out properly, and the trial procedures were lawful. Beijing Higher Court ruled as follows on June 16, 2003 in accordance with Item (1) of Article 189 of the “Criminal Litigation Law of the People's Republic of China”: 综上所述,一审法院根据被告单位上海华亚实业发展公司及被告人丁福根、董沛霖、庞博、何宁一、李芸、边军勇、刘蕾犯罪的事实、性质、情节及对于社会危害程度所作的判决,事实清楚,证据确实、充分,定罪准确,量刑适当,审判程序合法。北京市高级人民法院依照《中华人民共和国刑事诉讼法》第一百八十九条第(一)项之规定,于2003年6月16日作出裁定:
The appeal shall be rejected and the judgment of the first instance shall be sustained.

 驳回上诉,维持原判。
 

     
     
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