Brief introduction of the case

65438+February 20th On June 20th, 2002, Sun Mou, Zou Mou and Liao Mou (handled separately) planned to engage in the import business of wood and wood floors, and agreed to set up a company with actual operation, actual benefits and dividends on this basis as the parent company. At the same time, Sun came forward to set up a shell company with Zhejiang A Group Co., Ltd., actually engaged in various import and export, domestic trade and consulting businesses of the parent company, and engaged in wood import business through Zhejiang A Group Co., Ltd., and Liao bought out Hong Kong B International Investment Co., Ltd. (hereinafter referred to as Company B) to cooperate with the parent company in import and export and consulting business to solve some overseas funds. On February 1 1 day, 2003, Zhejiang A Group Co., Ltd. invested 990,000 yuan (accounting for 33% of the capital contribution), Sun Mou invested 654,380,002 yuan (accounting for 34% of the capital contribution) and Liao invested 990,000 yuan (accounting for 33% of the capital contribution) to establish Zhejiang C Economic & Trade Co., Ltd. in Hangzhou (hereinafter) Among them, Liao is responsible for finance, taxation and development strategy, Zou (deputy general manager of Company C) is mainly responsible for business, and Sun (legal representative and general manager of Company C) is responsible for public relations and personnel, assisting Zou in business development.

From February 2003 to May 2004, Sun Mou, Zou Mou and Liao Mou, in the name of Company C, first determined the real timber transaction with overseas suppliers through Company B, and then set a customs declaration unit price lower than the real unit price, and signed a false contract with overseas suppliers at the customs declaration unit price. After that, Company C entrusted Zhejiang A Group Co., Ltd. as the import agent and China D Company to declare the import, and smuggled timber 178 times from overseas by asking overseas suppliers to provide false invoices, with a total tax evasion of more than 2.3 million yuan. Company C sells imported plates in Zhejiang and Shanghai, and part of the sales income goes into the account of Company C, and part of it goes into the account of Hangzhou E Trading Co., Ltd. (hereinafter referred to as Company E) actually controlled by Sun. It pays the goods to Zhejiang A Group Co., Ltd. at the customs declaration price through the above account, and pays the difference to overseas suppliers through the personal accounts of Company B and Li.

In May 2004, Company C, Sun Mou and Zou were placed on file for investigation by the Anti-smuggling Bureau of Hangzhou Customs for the crime of smuggling ordinary goods, and all 5 million yuan of Company C was also temporarily detained by the Anti-smuggling Bureau of Hangzhou Customs. Later, the case was transferred to Hangzhou People's Procuratorate for review and prosecution in August 2004. The public prosecution agency accused the above three defendants of declaring imports to the customs at a customs declaration price lower than the real price, smuggling imported timber and evading the tax payable of more than 2.3 million yuan, all of which constituted the crime of smuggling ordinary goods.

Entrusted by company C, our firm carefully consulted the case files, actively investigated and obtained evidence, and gradually grasped the context of the case. After careful study, I sorted out my mature defense ideas and decided to plead not guilty to Company C. ..

Focus of controversy

The public prosecution agency in this case claims that the smuggling behavior of the defendant Company C has violated the provisions of Article 153 of the Criminal Law of People's Republic of China (PRC), and the criminal facts are clear, the evidence is conclusive and sufficient, so it should be investigated for criminal responsibility for the crime of smuggling ordinary goods. However, the defendant Company C believes that the company was established by Sun Mou and others for personal illegal activities, and its main business activities are timber import and smuggling. The profit from the smuggling crime has been shared by the company, and Company C itself has no illegal income, which does not constitute a crime.

There was a heated debate between the prosecution and the defense about whether this case was a unit crime of Company C or a personal crime of Sun Mou and Zou. The focus of the dispute is on the identification of unit crime and individual crime.

Trial judgment

The proceedings in this case were full of twists and turns. On June 5438+February 65438+April 2004, the Hangzhou Intermediate People's Court made a criminal judgment of first instance, and found the defendant Company C guilty of smuggling ordinary goods and fined it RMB 2.35 million. The defendant and Zou were sentenced to six years and four years' imprisonment respectively for smuggling ordinary goods. Defendant Company C believed that the first-instance judgment was wrong in fact finding and law application, and the punishment was improper, so it appealed to the Higher People's Court of Zhejiang Province in accordance with the law, and clearly put forward the reasons that did not constitute a unit crime in the appeal. At the same time, through the audit of all the timber business of Company C, it shows that Company C itself has not benefited from the imported timber business, and presents the audit report as evidence, requesting the court of second instance to change the judgment according to law and declare Company C innocent.

On March 2, 2005, KLOC-0, Zhejiang Higher People's Court ruled that the criminal judgment of first instance was revoked and sent back to Hangzhou Intermediate People's Court for retrial.

Hangzhou Intermediate People's Court formed a collegial panel to hear the case according to law, and on July 26, 2005, the defendant Company C was acquitted. Defendant Sun was sentenced to life imprisonment for smuggling ordinary goods, and defendant Zou was sentenced to 14 years imprisonment for smuggling ordinary goods.

However, the People's Procuratorate of Hangzhou refused to accept the retrial result, believing that the natural person was severely punished for misdemeanor and it was wrong to return the money of 5 million yuan to the defendant unit. Therefore, a protest was lodged with the Higher People's Procuratorate of Zhejiang Province, and the case entered the Higher People's Court of Zhejiang Province again. The Higher People's Court of Zhejiang Province finally adopted the defendant's point of view, rejected the protest of the procuratorate, and declared the defendant Company C innocent.

Classical analysis

(1) Looking at this case, the defendant Company C in this case does not constitute a unit crime in terms of the constitutive requirements of the unit crime or the application of the law. China's criminal law and judicial interpretation do not define unit crime, but according to the general theory of China's criminal law, unit crime usually refers to the behavior that harms the society that companies, enterprises, institutions, organs and groups decide by the decision-making body of the unit or are carried out by the person in charge of the unit or its authorized person in charge in order to seek the interests of the unit. When identifying the unit smuggling crime, apart from the nominal superficial phenomenon of the unit, it cannot be separated from the two main characteristics of the unit smuggling crime: the integrity of the unit will and the interests of the group. The most fundamental of these two characteristics is the collectivity of unit interests, that is, seeking benefits for the unit.

According to the Opinions of the General Administration of Customs of the Supreme People's Procuratorate and the Supreme People's Court on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Smuggling, it can be considered as a unit smuggling crime if it has the following characteristics: (1) The smuggling crime is committed in the name of the unit, that is, it is decided by the collective research of the unit, or decided and agreed by the person in charge of the unit or other authorized personnel; (2) seeking illegitimate interests for the unit or most of the illegal income belongs to the unit.

At the same time, according to the provisions of Articles 2 and 3 of the Interpretation of the Supreme People's Court on Relevant Issues Concerning the Specific Application of Laws in the Trial of Unit Crimes, which was adopted in June 1999, companies, enterprises and institutions established by individuals for illegal and criminal activities commit crimes, or those whose main activity is to commit crimes after the establishment of companies, enterprises and institutions are not punished as unit crimes. Whoever embezzles the name of a unit to commit a crime and distributes the illegal income to the criminal individual shall be convicted and punished in accordance with the provisions of the Criminal Law on crimes committed by natural persons. Among them, whether a unit takes crime as its main activity should be determined according to the number, frequency, duration and legal operation of the unit. The main feature of unit smuggling crime is that the smuggling proceeds are owned by the unit.

According to the evidence in this case, our lawyers put forward their own defense opinions according to the constitutive requirements of unit crime.

1. Defendants, Zou Mou and Liao Mou set up the company for the purpose of committing smuggling crime, that is, underreporting imported timber for personal benefit.

First of all, the meeting memorandum of February 20, 2002 +65438 clearly stated the purpose of Sun, Liao and Zou to set up the company. The memorandum is true, signed by three parties, and all three have no objection to the authenticity of the signature, which is indeed the expression of its true meaning.

Secondly, the confessions of the above three people about the purpose of establishing company C in their interrogation transcripts also confirm each other, which proves that company C intends to import wood at a low price for profit in the third year of its establishment. According to the interrogation record of Hangzhou Customs Anti-smuggling Bureau, in June 5438+February, 2002, Liao and Zou decided to buy Company B in Hong Kong when they were preparing to build Company C, and at the same time facilitated the smuggling of imported timber at a low price. At this time, Sun hasn't found a group company in Zhejiang with a "business cover" ... In February 2003, after the establishment of Company C, he carried out smuggling activities through Company B in full accordance with Sun and others' plans in advance. Zhejiang A Group was unaware of the criminal intentions and activities of Sun and others only for the sake of business scale. Later, Sun confessed, "I asked Liao and Zou to cooperate. The three of us agreed that if the timber is operated normally, it will lose money, so we continued the practice of underreporting the price. Only in this way can we reduce costs and increase profits. This is what we know well. " Zou also confessed in the interrogation transcript: "At the end of 2002, Liao and Sun and I decided to find a shell company with good reputation as a business cover, mainly engaged in low-priced imported timber. Later, Sun gave full play to his advantages and founded Zheyi Group. "

Third, at the beginning of the establishment of Company C, its business was to import wood at low prices. According to the court's determination, the first smuggling took place on February 6, 2003, and Company C was formally established in February of 1 1. Therefore, the smuggling behavior of Company C started before it was formally established.

2. Sun Mou, Zou and Liao didn't actually make smuggling profits, and Zhejiang A Group got nothing.

First of all, not all smuggled and imported timber is attributed to the company. The value of smuggled goods is divided into two parts: one is the customs declaration value, and the other is the difference between the customs declaration value and the market value, that is, the underreporting part. Sun et al. only recorded the value of the customs declaration, but did not record the full true value of the goods. At the same time, Sun and others used the personal accounts of Company E to pay a large amount of price difference, and transferred the profits of Company C through related transactions with Company E..

Secondly, according to the investigation, Sun Mou, Liao and Zou paid dividends several times in 2003 and 2004, and the time and details of dividends were also clear, but Zhejiang A Group, which is also a shareholder, knew nothing about it. Although both Sun Mou and Zou argued that the source of dividends was the profit of futures business, the investigation by the public security department on the profit and loss of all futures accounts opened in Sun Mou showed that from 2003 to July 2004, Sun Mou's account opened in Shanghai F Futures Company in the name of E Company lost more than 800,000 yuan, while his account in Jiangsu G Futures Company was basically the same, while Sun Mou lost more than 600,000 yuan in F Futures Company in his own name. At the same time, Zou and Liao did not open a futures account. All the money posted from the futures account and used for dividends comes from timber smuggling. That is to say, neither Company E nor Company Sun Mou has made any profit from operating futures, and it is false to say that the source of dividends is the profit from operating futures.

Third, the audit report shows that timber smuggling has not brought profits to the company. Due to the need of import, the defendant company C entrusted Group A to open a letter of credit for external payment. Part of the money extracted from timber sales went into the account of the defendant company to repay the letter of credit prepayment and book cost of Group A ... This does not mean that the company has obtained illegal income from smuggling. Real income did not enter the account at all, but directly flowed into the pockets of Sun Mou, Zou and Liao in cash or through bank cards. After the incident, the public security department entrusted Zhejiang H Certified Public Accountants to conduct a comprehensive audit of the company's finances in 2003 and 2004. The audit report shows that the defendant company did not make a profit in the timber business in 2003 and 2004, but lost 3.55 million yuan, further confirming the fact that the defendant company did not make a profit but made a personal profit.

Smuggling imported timber has become the main activity of company C.

From the establishment of the company in February 2003 to the crime in May 2004, in less than 16 months, Sun, Zou and Liao all identified 178 cases of smuggling, with an average of more than 10 cases per month. For a small company with only a dozen people, it cannot but be regarded as the main activity of the company. Judging from the number, time and frequency of 178 smuggling cases, it is enough to conclude that the company is mainly engaged in smuggling crimes of low-priced imported timber.

(2) The distinction between unit crime and individual crime There is a clear line between unit crime and individual crime of members within the unit, and there are also differences in criminal policy in China's criminal law. Generally speaking, the punishment of unit crime to unit members is more lenient than that of simple individual (natural person) crime. For example, if some crimes are committed by natural persons, the maximum legal punishment is life imprisonment or death penalty; If it is a unit crime, the maximum penalty for its members is 10 years imprisonment (such as Article 153 of the Criminal Law) or life imprisonment (such as Article 192 of the Criminal Law); However, the statutory penalties for some crimes and individual crimes are higher than those for unit members in unit crimes (for example, Article 175 of the Criminal Law, etc. ); Other crimes, such as individual crimes, can be combined with fines, while unit members in unit crimes do not have provisions for combining fines (for example, Article 182 of the Criminal Law, etc.). Therefore, in order not to indulge in crime, the law has always adopted strict principles in determining the subject of unit crime. In the current judicial practice, there are quite a few natural persons who cover up their crimes and use units as tools of crime. If these crimes are treated as unit crimes, they actually condone criminals and make them escape heavier punishment.

It is a unit crime to commit a crime for the benefit of the unit, or to own the illegal income to the unit if there is illegal income. Individuals in the unit commit crimes under the guise of the name of the unit and seek illegal benefits for individuals, or individuals * * * share illegal gains although they decide to commit crimes through collective research of the unit. Because of the individuality of interest attribution, they can only be punished as individual crimes. Lawyers' work should also proceed from the specific circumstances of individual cases, and make clear the purpose of the establishment of the unit, the main activities of the unit and the group types of the interests of the unit, which is an important basis for distinguishing unit crimes from individual crimes. Pay special attention to the factors such as whether the criminal act is the result of the unit will, whether it is manifested as the unit will, whether it is the combination of the natural person's will, and avoid treating individual crimes as unit crimes.

This case not only lasted for a long time, but also was complicated. On the basis of finding out the relevant facts, our lawyers consulted a large number of laws and regulations, obtained the evidence materials of the case according to law, and put forward their own defense opinions around the controversial focus of the case in the whole litigation process, that is, this case is an individual crime, not a unit crime, and the defendant Company C is not guilty. On this basis, our lawyers defended well and won the case, and finally safeguarded the legitimate rights and interests of the clients.