Lawyer's character

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

In the Tenth Tribunal of the court, an old lady was sitting in the auditorium. She didn't know what her relationship was with Zhang Wen. Zhang Fengcai did not come to listen. He was restlessly waiting for news about Fang Yi in the office.

The presiding judge is a middle-aged female judge with curly hair. She has a big face, big eyes, and a gloomy face. She has a feeling that strangers should not approach her. On both sides were two female judges, both of whom looked younger.

There were two prosecutors sitting at the prosecutor's table. The first one was a female prosecutor in her thirties with short ear-length hair and regular features. Her surname was Song. Fang Yi had met her before when she went to the prosecutor's office to review papers; The other is a male prosecutor in his twenties with short haircut, and he is probably the apprentice of Prosecutor Song.

At this time, Prosecutor Song was reading out the indictment: "...the defendant Zhang Wen is a senior manager of a joint venture. He took advantage of his position to let his relatives operate business activities similar to the business scope of the company where he worked, and sought illegal benefits from it.

This court believes that defendant Zhang Wen’s behavior violated Article 165 of the Criminal Law of the People’s Republic of China. The criminal facts are clear and the evidence is reliable and sufficient. He should be held criminally responsible for the crime of illegally operating similar businesses. According to the provisions of Article 176 of the Criminal Procedure Law of the People's Republic of China, if a public prosecution is instituted, please be sentenced in accordance with the law. Presiding judge, the indictment has been read out. "

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

"I have no objection to the facts, but I do not admit the crime. Although I am the department manager of the company, our company is a joint venture, not a state-owned enterprise. My behavior does not constitute the crime of illegally operating similar businesses." Zhang Wendao.

Before the trial, Fang Yi went to see him and told him the litigation plan and relevant legal regulations so that he had an idea. After all, Zhang Wen has gone to college and has been in society for so many years, so he naturally knows what to say.

"The public prosecutor can interrogate the defendant regarding the criminal facts charged in the indictment," the presiding judge said.

"Okay, presiding judge." Prosecutor Song looked at the defendant's seat and asked, "Defendant Zhang Wen, what position do you hold in the joint venture company?"

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

"What is your job content?" Inspector Song asked.

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

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

"Wanjia Sales Company was registered by my mother and mother-in-law. It is an agent for the sales of auto parts of our company. It is an authorized agent of our company." Zhang Wen understood what the prosecutor wanted to ask, so he simply said it. Anyway, these things It is all recorded in the case files, and sooner or later it will have to be said.

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

"I'm the one running the business, and I'm the one who contacted 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 Wen said.

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

"Sales were 486,425 yuan and profit was 122,110 yuan." Zhang Wendao.

"Does Wanjia Sales Company have other businesses? Are these sales proceeds from acting as agents of the joint venture's products?" Inspector Song asked.

"Wanjia Sales Company only does the joint venture's business and has no other business." Zhang Wendao.

"While you were running Wanjia Sales Company, did the prices of the joint venture's products sold by Wanjia Sales Company comply with the relevant regulations established by the joint venture company?" Inspector Song asked.

"Wanjia Sales Company conducts sales in accordance with the sales plan and price established by the joint venture company. There is no violation of regulations. Wanjia Sales Company has accounts. You can check them at any time." Zhang Wendao.

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

"The defendant's defender can ask questions to the defendant." the presiding judge said.

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

"I was recruited by the company, and I worked in sales for a foreign-funded company in another province." Zhang Wendao.

"In addition to being the general manager of the sales department, do you hold other positions in the joint venture company?" Fang Yi asked.

"There is no other appointment." Zhang Wen said.

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

"The following is the presentation of evidence and cross-examination. Do the prosecution and defense parties and the defendant have any new evidence that needs to be submitted?" the presiding judge asked.

"There is no new evidence to submit." All three parties said.

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

…

Zhang and Wen both recognized the facts alleged by the prosecutor, so he naturally recognized all the evidence presented by the prosecutor. Fang Yi also had no objection to the evidence reflecting the facts of the case.

“The facts of this case have been clearly investigated, the court investigation has ended, and now the court debate has begun. The court debate mainly revolves around the disputed facts that have not been certified by the court and the issue of how the law should be applied based on the facts.

The prosecutor will speak first. "The chief judge said.

"Presiding Judge, Judge: The prosecutor believes that the defendant Zhang Wen, as the department general manager of the joint venture, took advantage of his position to operate business activities similar to the business scope of the joint venture through Wanjia Sales Company, and obtained illegal benefits from it. Twelve thousand one hundred yuan, a huge amount.

The defendant's behavior is consistent with the criminal composition required by Article 165 of the Criminal Law, and his behavior constitutes the crime of illegally operating similar businesses. The prosecutor recommended that the defendant be sentenced to three years in prison. complete. "Inspector Song recommended a sentence based on the maximum standard, which can also be seen as retaliation for Zhang Wen's not guilty plea.

"The defendant Zhang Wen will defend himself," the presiding judge said.

"I acknowledge the fact that we established a company and operated similar businesses to those of the 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 behavior does not constitute a crime..." Zhang Wen argued.

"The defendant's defender expressed his defense opinion," the presiding judge said.

“Presiding Judge, Judge: The defender believes that defendant Zhang Wen’s behavior does not constitute the crime of illegally operating similar businesses 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 equity structure of the joint venture is: the Chinese party (state-owned enterprise) holds 50% of the equity, and the foreign party holds 50% of the equity. The joint venture will be 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. The defendant Zhang Wen is the department manager of a Sino-foreign joint venture company and does not meet the subject requirements for the crime of illegally operating similar businesses.

According to the provisions of Article 165 of the Criminal Law, directors and managers of state-owned companies and enterprises who take advantage of their positions to operate themselves or for others to operate similar businesses to the companies or enterprises for which they work, and obtain illegal benefits in huge amounts, shall It constitutes the crime of illegally operating similar businesses.

It can be seen from the above provisions that the subjects of the crime of illegally operating similar businesses are special subjects, that is, directors and managers of state-owned companies and enterprises. Other persons cannot be the subject of this crime.

This is because directors and managers of state-owned companies should safeguard the interests of state-owned companies and enterprises, abide by the company's articles of association, perform their duties faithfully and diligently, and are not allowed to use their status and authority in the company to seek benefits for themselves. Therefore, the Company Law Directors and managers of state-owned companies have imposed non-competition provisions.

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

The 'manager' mentioned in Article 165 of the Criminal Law refers to a senior manager appointed by the board of directors, responsible to the board of directors, responsible for the company's production and operation management, and organizing and implementing the resolutions of the board of directors' meeting.

In actual operations, various departments of the company will also have department managers, such as administrative department managers, sales department managers, financial department managers, project managers, etc.

The above-mentioned department managers are set up for management needs. They are not company managers as mentioned in Article 165 of the Criminal Law. They are just daily titles. They are not responsible for the management of the entire company, but a certain department or department. For the management of a certain business, its operation and management authority are determined by the company itself, so the Company Law does not impose prohibition on competition.

As a statutory crime, the main elements of the crime of illegally operating similar businesses should be directly quoted from the provisions of the Criminal Law, and it is not appropriate to give an expanded interpretation. Therefore, middle-level managers such as department managers of state-owned companies and enterprises do not constitute the subjects of the crime of illegally operating similar businesses.

To sum up, although the defendant Zhang Wen took advantage of his position to operate business activities similar to the business scope of the joint venture company he held through Wanjia Sales Company and made profits from it, because the joint venture company Zhang Wen worked for was not state-owned company, and Zhang Wen is a middle-level manager and does not have the special status of director or manager of a state-owned company as stipulated in Article 165 of the Criminal Law, so his behavior does not constitute the crime of illegally operating similar businesses. complete. "Fang Yi said.

"The prosecutor can respond to the defender's defense opinions," the presiding judge said.

"In response to the defender's defense, the prosecutor believes that state-owned companies should include: joint stock companies fully invested by the state and absolutely controlled by the state, joint stock companies relatively controlled by the state, and enterprises in which state-owned enterprises account for the absolute majority of property rights. Although the victim company in this case is a Sino-foreign joint venture Operating companies, but state-owned enterprises account for 50% of the investment, should also be recognized as state-owned companies." Prosecutor Song said.

In fact, there are also different opinions within the procuratorate on the issue of whether a Sino-foreign joint venture is a state-owned company. The procuratorate also specially discussed this issue within the procuratorate. However, prosecutor Song had no choice but to push this issue to the court.

The main reason for this result is that with the continuous deepening of my country's economic system reform, the capital contributors of companies and enterprises have also developed from the original singleness to diversity. However, the development of the law lags behind, coupled with the relevant departments' " There is no unified understanding of the concept of "state-owned enterprises", which brings difficulties to the definition of the nature of state-owned companies and enterprises.

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

“Based on the prosecutor’s defense opinions and response, the defender issued the following defense opinions:

The defender believes that state-owned companies and enterprises should be strictly limited to those whose assets are all state-owned. Other companies should not be considered state-owned companies. The reasons are as follows:

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

After the company is established in accordance with the law, the shareholders' capital contributions become the company's assets and belong to the company. Shareholders receive corresponding dividends in proportion to their equity holdings.

Therefore, if a state-controlled company or a company with a majority of state-owned assets is recognized as a state-owned company, it will not only deny the company's independent legal personality, but also damage the subject qualifications and shareholder rights of other investors.

Second, the amount of investment in state-owned assets, whether it is absolute control or relative control, is only a form of state participation, and cannot directly define the nature of the company as state-owned. Therefore, a state-owned company must be one where all investors are state-owned units. company.

Returning to this case, the joint venture company is a company established with equal investment from the Chinese party and the foreign party. Each party holds 50% of the shares. Its nature is a Sino-foreign joint venture company and should not be recognized as a state-owned company. complete. "Fang Yi said.

…

At 11:40, Fang Yi walked out of the court, stood at the gate of the court building, looked up at the gray sky, and breathed a sigh of relief. Zhou Ying followed behind, carrying a briefcase and case files, and followed with small steps along the way.

Fang Yi took out his cell phone and dialed. After a while, Zhang Fengcai's voice came from the phone.

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

"The verdict was pronounced in court that Zhang Wen is not guilty. Zhang Wen still has to go through the formalities and will be able to go home soon." Fang Yi said with a smile.

The court held that the joint venture company where 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 criminal composition required by Article 165 of the Criminal Law, so it was not considered a state-owned company. Should be treated as a crime.

The facts alleged by the public prosecution agency are established, but the charges are not established and will not be supported. The defense opinions of the defendant and defender are established and shall be adopted. In accordance with the provisions of Article 3 of the Criminal Law and Article 162 (2) of the Criminal Procedure Law, the verdict 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.