Chapter 127 Tit for tat

Author: Xueying Hongmei

Chapter 127 Tit for tat

"Now the prosecutor will speak," the presiding judge said.

“This court believes that the behavior of the appellant Cao Yueshan constitutes the crime of contract fraud. The reasons are as follows:

1. Honghai Company failed to pay the 50 million yuan start-up capital for the new residential project in Gaojiazhuang Village as scheduled, and the project development rights were in an uncertain state. Cao Yueshan did not inform Lianda Company of the relevant situation when signing the construction contract, which constituted fraud.

Second, according to the investigation, Red Sea Company is small in scale and has a serious shortage of its own funds. After paying Gaojiazhuang a deposit of 3 million yuan in advance, there is no funds in the account.

Although it is common for real estate development to be financed during construction, the financing capabilities of the appellant Cao Yueshan and the Red Sea Company should be comprehensively considered in conjunction with their contract performance capabilities. It is obvious that in the field of real estate development, real estate development companies of the size of Red Sea need to raise funds in society.

The ability is very weak.

Red Sea Company lacks reliable financing channels. Objectively speaking, it had not raised any funds as of the time of the incident. It can basically be determined that it has no ability to perform the contract.

Third, in this case, part of the deposit collected from the construction unit will be used to return deposits paid by other companies and the company's daily expenses. It can be determined that Cao Yueshan has the purpose of illegal possession, so the appellant's behavior constitutes the crime of contract fraud," the female prosecutor said.

.

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

“Okay, in response to the defender’s defense, we express our views as follows:

First, although the new residential project does exist, because Red Sea Company failed to pay the project start-up capital, according to the contract, Gaojiazhuang Village has the right to choose other partners. Therefore, Red Sea Company’s project rights are in an unstable state. It can also be said that the project has been

Out of the control of Red Sea Company.

Second, although there are situations in the real estate field where people get on the bus first and then buy tickets, it cannot be said that such behavior is legal. If you cannot buy a ticket, or you are not qualified to buy a ticket at all, then subsequent behavior will be suspected of fraud. Red Sea Company

Such is the behavior.

Third, Lianda Company came to the company many times to ask for the return of the deposit, but the appellant was unable to pay. In this case, the appellant used financing as an excuse to flee to Beijing in an attempt to avoid debts. It can be seen that the appellant was subjectively intentional and his behavior was fraudulent.

sex……

It’s over!” said the female prosecutor.

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

Fang Yi stopped the pen he was writing rapidly and responded to the female prosecutor's opinion: "Okay, presiding judge.

1. The real estate projects of Red Sea Company actually exist.

It is true that Red Sea Company signed a letter of intent for a new residential project with the Gaojiazhuang Village Committee and paid a deposit. Although it failed to pay the follow-up 50 million yuan start-up capital as scheduled, Red Sea Company carried out land leveling and road construction on the temporary construction land.

Construction and construction of workers' housing and preliminary preparations were done.

The Gaojiazhuang Village Committee did not stop the above-mentioned behavior of the Red Sea Company, nor did it terminate the contract with the Red Sea Company or discuss the development of the project with others.

Therefore, we believe that the cooperation agreement between the two parties has actually been performed. Even if Red Sea Company did not inform Lianda Company that the owner had the right to terminate the agreement, it cannot be inferred that Red Sea Company has concealed the truth.

Although Red Sea Company only provided project renderings, the situation of "approving while working, getting on the bus first and buying tickets later" is common in the real estate industry, and the evidence provided by the prosecutor showed that Cao Yueshan had informed the company when signing the contract with Lianda Company

The other party's project is the construction of new residential buildings, and the project procedures are being processed and will be available soon. As a professional unit engaged in construction projects, Lianda Company should have been aware of the fact that the project procedures were not completed or were incomplete when signing the contract.

Second, there is insufficient evidence to determine that Cao Yueshan illegally occupied Lianda Company's 3 million deposit.

Judging from the evidence provided by the prosecutor in the first instance, Honghai Company made preliminary investment in the new residential project, and most of the deposit obtained from Lianda Company was used for normal project expenses (the deposit returned to the subsidiaries of the Urban Construction Group was also for the project

normal development).

Red Sea Company’s early investment in the temporary construction land formed relevant property rights. The deposits it received from Lianda Company were used to repay project arrears, engineering costs and the company’s daily expenses. Cao Yueshan did not take the deposits as his own

Or squandering money, subjectively wanting to make the project successful and make money through the project.

Although financing behavior is an important reference for judging Cao Yueshan's willingness to perform the contract, the evidence about Cao Yueshan's financing behavior in this case is limited and cannot be determined to be true or false, nor can it be determined.

Judging from the entire case, Cao Yueshan has been working hard on new residential projects. Although he had some concealment when signing the contract with Lianda Company, the real estate development industry is a capital-intensive industry with large capital investment and high operating risks. Red Sea Company

Although its own strength is insufficient, if it is properly financed, the possibility of eventual profitability cannot be ruled out.

Therefore, the defender believes that this case should comprehensively consider the background of the project, Cao Yueshan’s efforts for project development, the whereabouts and use of the deposit, and other factors to determine whether Cao Yueshan has the purpose of illegal possession, and cannot simply assume that Cao Yueshan is suspected of deception and directly

It is concluded that it subjectively has the purpose of illegal possession.

Third, the losses of Lianda Company in this case can be remedied through civil means. As of the time of the incident, Honghai Company still had a deposit of 3 million yuan in the Gaojiazhuang Village Committee account, and had also formed relevant agreements on temporary construction projects.

property interests.

This case is different from common contract fraud crimes. The deposits collected by Cao Yueshan from the subsidiaries of the Urban Construction Group and Lianda Company were all used for temporary construction facilities of new residential projects. The company's normal expenses or the return of previously collected deposits were not squandered.

Condition.

At the time of the incident, Red Sea Company was unable to repay Lianda Company's deposit, but Xinhai Company still had certain property rights in the temporary facilities that had been completed in the new residential project, plus the three-digit amount it paid to the Gaojiazhuang Village Committee.

With a million yuan deposit, the company's overall assets and liabilities problem is not very prominent. If handled properly, Lianda Company's three million yuan loss can be compensated.

The defender believed that although Cao Yueshan committed some deception in the process of signing the agreement, it did not affect the victim, Lianda Company, from seeking relief through civil channels. Therefore, the first-instance judgment held that Cao Yueshan constituted the crime of contract fraud, which was inconsistent with the modesty principle of the criminal law.

of.

To sum up, Cao Yueshan does not commit the crime of contract fraud. Over." Fang Yi said.

(The principle of modesty, also known as the principle of necessity. It means that the legislative body can only set certain behaviors that violate the legal order under the condition that the norm is indeed indispensable - there is no other appropriate method to replace the penalty.

into a criminal act)
Chapter completed!