Whether the punishment of a Zhejiang real estate company boss selling his own real estate to pay off debts is due to occupation of duty

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 Whether the punishment of a Zhejiang real estate company boss selling his own real estate to pay off debts is due to occupation of duty


Xu Yufang said that in the companys development of real estate, three people have borrowing behavior, but it belongs to personal debt. The borrowed money can only be used as shareholders investment funds, so the company should not bear the responsibility of repayment. Zhao Guopings behavior is occupation.

A partnership of three shareholders

According to the commercial bidding document of Jingjiang garden of Huajiang real estate on December 27, 2012, Zhejiang Jinggong Century Construction Engineering Co., Ltd. (hereinafter referred to as Jinggong company) bid for the whole project of Jingjiang garden contracted by Huajiang real estate with an offer of 97.65 million yuan and won the bid. Upstream news reporters learned that Xu Yufang is the project leader of Jinggong company in Jiashan County.

In the whole development process of the project, Seiko did not arrange for other people to connect. Huajiang real estate has been communicating with Xu Yufang, including quotation, progress, acceptance, etc Zhao Guopings civil case Lawyer Wang Yueming introduced.

Xu Yufang believes that he is not only the shareholder of Huajiang real estate, but also the project leader of Jinggong company. However, real estate development and construction contractor contracting are all corporate behaviors, which have nothing to do with personal identity.

The upstream news reporter noted that it is clearly stipulated in the contract price adjustment method of the special terms of construction project construction contract that the engineering quantity shall apply the land installation engineering quota of Zhejiang Province 2010 edition, and the rate shall be calculated according to the project category and relevant regulations. However, it is mentioned in the supplementary agreement of construction contract that the quota shall be implemented according to the budget quota of Construction Engineering in Zhejiang Province (1994 edition), the budget quota of installation engineering in Zhejiang Province (1994 edition) and the quota, documents and relevant supplementary provisions of provinces and cities in the supplementary agreement.

The upstream news reporter inquired and found that there were obvious differences in labor costs, building materials and installation costs between the 2010 edition and the 1994 edition. Due to the large difference in the labor cost of the same engineering quantity, the engineering cost of the 1994 version was higher than that of the 2010 version. In 2012, when the two sides signed the construction contract, the quota standard of 2010 version has come into effect.

It is the different versions of the pricing standards in the two contracts that have brought controversy to the subsequent debt disputes.

The three shareholders jointly developed Huajiang real estate Jingjiang Garden community. Photos provided by interviewees

The difference between the two quota standards is more than 20 million

On June 27, 2016, Jinggong construction filed a lawsuit against Huajiang real estate because some project funds were not paid in place. On July 12 of the same year, Huajiang real estate counterclaim. On August 8, 2016, the case was heard in Jiashan County Peoples court.

According to the court record, Jinggong construction proposed to complete the project by December 31, 2015, with a total of more than 140 million yuan, while Huajiang real estate only paid 78 million yuan. It is hoped that the court will rule that Huajiang real estate will pay more than 51.8 million yuan of project funds and delay interest of more than 1.12 million yuan. Huajiang real estate pointed out that the payment term agreed in the contract is that 95% of the price review part should be paid after the completion of the project filing and the project settlement is determined, and Huajiang real estate has suffered losses due to the construction period delay.

The reporter noted that the main controversial point of this case is Jinggong construction, which thinks that the standard of project payment quota should be implemented according to the 1994 version of the supplementary agreement, but Huajiang real estate thinks that it should be implemented in accordance with the quota standard in 2010 in the record contract.

Why did the two sides sign a supplementary agreement with the 1994 quota standard when the 2010 quota standard has been implemented? Xu Yufang said that as long as the two sides discuss, which settlement method to use can be used. Since both parties have already agreed in the supplementary agreement, it should be implemented in accordance with the quota standard of 1994 edition.

Lawyer Wang Yueming explained that this is actually a secret disclosed by the private real estate company and the construction contractor. The purpose of signing the supplementary agreement is that if the profit of the real estate project is too high, the profits of the real estate company can be cashed out through the accounts of the construction company according to the settlement method of the supplementary agreement, so as to avoid the amount of enterprise income tax and other related taxes It should be implemented according to the quota standard in 2010. According to this standard, the overall project price should be around 95 million.

On May 21, 2017, the peoples Court of Jiashan County made a civil judgment (2016) zh0421 MCH No. 2442. The Court confirmed that as of February 3, 2016, Huajiang real estate had paid more than 79 million yuan to Jinggong company. In addition, according to the engineering cost consultation report issued by the audit company, according to the quota standard in 1994, the project cost involved is 125 million yuan, if calculated according to the 2010 version, the project cost is 104 million yuan.

Finally, the court held that the construction contract included in the settlement data submitted by Huajiang real estate before the dispute occurred was the compensation agreement signed by both parties, and Huajiang real estate made a judgment based on the quota standard in 1994 and ruled that Huajiang real estate should pay Jinggong company 33 million yuan and interest of more than 720000 yuan.

After Huajiang real estate appealed, Jiaxing intermediate peoples court and Zhejiang Provincial High Court upheld the original judgment. At present, the real estate has been seized by the court, and the seized assets are about 120 million. Wang Yueming said.

On February 2, 2016, the shareholders meeting decided to temporarily borrow Zhao Guoping for capital turnover of some residential buildings. Photos provided by interviewees

Two shareholders punished for embezzlement

During the appeal period of the contract dispute between Huajiang real estate and Jinggong company, Zhao Guoping was investigated by the public security organ for suspected job encroachment. The informant said that Xu Yufang was the informant.

According to the criminal judgment no.741 of the peoples Court of Jiashan County (2019) zh0421, Huajiang real estate has borrowed money from three shareholders in the process of operation due to the shortage of funds, and then repayments in succession. As of 2016, Huajiang real estate still owed the defendant Zhao Guoping a loan of 5096135 yuan.

Shaoxing Jingyuan, a small amount of loans to a company limited by Shaoxing Jingjiang, will be sold to a small amount of RMB 4.39 million yuan for sale of a small amount of RMB 4.39 million yuan of loans to a company limited by Shaoxing Jingjiang, a small amount of RMB 4.39 million yuan, which was sold to a company limited by Shaoxing Jingjiang for six months Two shops in Jingjiang garden were sold to Hu, Zhangs wife, at a price of 2478456 yuan to repay his personal debt.

In the same year, Zhao Guoping also raised 7.5 million yuan from fan for 21 shops in Jingjiang Huayuan in the form of commercial housing sales. Of this, 1.5 million yuan was used by Zhao Guoping to repay his personal debts.

The public prosecution accused Zhao Guoping, as the legal representative, executive director and shareholder of the company, embezzled more than 7.6 million yuan of the companys property by taking advantage of his position, with a huge amount, and his behavior has constituted the crime of occupation. However, Zhao Guoping argued in the trial that it was not occupation. He lent money to the company and sold the property to repay the companys debts and informed the companys shareholders.

According to the three resolutions of the shareholders meeting in 2015 and 2016 obtained by the upstream journalists, Zhao Guoping had asked to temporarily borrow the real estate financing of Huajiang company to repay his personal debt due to the urgent need for capital turnover. All shareholders signed their consent and clearly made it clear that Zhao Guoping was responsible for the recovery.

Zhao Guopings defense lawyer said that due to the development of Jingjiang garden project, Zhao Guoping lent more than 40 million yuan to Huajiang company in his own name. In two and a half years, because the company had no source of funds, the loan interest was paid by Zhao Guoping, resulting in a large number of personal debts. Therefore, it is proposed to the shareholders meeting to borrow houses for capital turnover. Therefore, Zhao Guoping did not take advantage of his position to occupy the assets of Huajiang company. At the same time, Zhao Guoping did not intend to encroach on the companys assets, and his behavior was not in line with the official occupation and had certain hidden characteristics.

However, Zhao Guopings defense lawyers defense opinions were not accepted.

Finally, Zhao Guoping was sentenced to seven years and two months imprisonment for the crime of embezzlement, and was ordered to pay back the loss of Huajiangs property. Zhao Guoping appealed.

Whether the personal debt paid by Zhao Guopings real estate contract is caused by corporate financing, the court of first instance has not made a specific determination.

Before Zhao Guopings sentence, another shareholder, Li ADA, was sentenced to six years and six months in prison for the crime of embezzlement.

According to the (2018) zh0421 xingchu No. 374 criminal judgment issued by Jiashan County Peoples Court on November 27, 2018, Huajiang real estate successively borrowed money from Li ADA and other shareholders, of which the total amount borrowed from Li ADA was 24506550 yuan. During the operation period, the real estate under the name of lia general Huajiang real estate company paid off his personal debts, totaling more than 2.55 million yuan.

From June 27 to the end of November 2016, Li ADA was fully responsible for Jiashan Huajiang real estate. While he knew that part of the real estate under the companys name had been sealed up by the court, he still sold the property to the public. A total of 11 houses and 4 shops were illegally disposed of, with a total value of about 11 million yuan.

Jiashan County Court held that Li a was guilty of the crime of occupation and illegal disposal of seized property. He was sentenced to six years and six months of fixed-term imprisonment.

According to six law experts, Zhao Guopings behavior belongs to the internal contradiction of shareholders. Photos provided by interviewees

Civil or criminal dispute

According to the local people, the reason why Zhao Guoping was sentenced was mainly the report of shareholder Xu Yufang.

On August 11, Xu Yufang told reporters in the upstream that he did not report any behavior, but reflected the situation truthfully in cooperation with the public security organs in the investigation. Xu Yufang believes that the money for the development of Jingjiang garden is the investment funds of shareholders, and the source of investment funds of shareholders is loans, which can only be identified as the individual behavior of shareholders, not the behavior of the company. Therefore, the company should not share the debt and interest of shareholders. Therefore, the behavior of Li ADA and Zhao Guoping has damaged the interests of the company and shareholders, which belongs to the occupation occupation behavior.

In the judgment of the first instance, Jiashan County Peoples court held that although Zhao Guoping had lent funds to the company, Zhao Guoping, Li ADA and Xu Yufang all said that the loan interest lent by shareholders to the company should be settled when the Jingjiang Huayuan project was settled, and the interest was not included in the loans recovered by the shareholders. Moreover, the resolution only listed that the house involved in the case was temporarily loaned to Zhao Guoping. However, Zhao Guoping, taking advantage of his position as the legal representative and executive director of Huajiang company, sold the house involved in the case in the form of commercial housing transaction, which has been used to repay his personal debts and encroach on the companys property, and the amount has exceeded the total amount of the companys loan, and his behavior conforms to the principle of duty occupation crime The objective element is to investigate the criminal responsibility of the crime of occupation.

Meng Jiajun of Zhejiang Tianhong law firm believes that the audit report entrusted by Jiashan County Public Security Bureau in the first instance can prove that the capital source of Huajiang real estate was advanced by Zhao Guoping and others to the company, and Zhao Guopings overseas financing could not not not generate financing costs such as interest. Therefore, Zhao Guopings loan abroad belongs to Huajiang company because of the companys operation Financing.

At the same time, according to the provisions of the interpretation that the legal representative or responsible person of the enterprise signs a private loan contract with the lender in his own name, and the loan is used for the production and operation of the enterprise, and the lender requests the enterprise and the individual to jointly bear the responsibility, the peoples court shall support this interpretation. Zhao Guopings personal loan is used for Huajiang real estate business, and Zhao Guopings creditors can request Huajiang company And Zhao Guoping bear the joint responsibility of repayment. Therefore, Zhao Guopings behavior does not conform to the subjective and objective elements of the crime of occupation.

In addition, all parties have made it clear that the interest and other related matters will be negotiated after the final settlement of Jingjiang Huayuan project. However, it is an objective fact that the shareholders need to repay the principal and interest for the loan to help the company. In fact, combined with the bank statement and current accounts, it can be seen that in recent years, Huajiang real estate has paid the interest of shareholders financing principal. During the operation period, the company has changed the management decisions of shareholders, which conforms to the market operation law and is within the scope permitted by law. Therefore, it is not illegal to use the assets of Huajiang real estate to repay the loan interest. At the same time, Meng Jiajuns lawyer said that Zhao Guoping estimated in the interrogation record that he could eventually obtain equity dividends from the company was about 20 million yuan. Combined with the third partys evaluation report and audit report, it can be concluded that the amount of Zhao Guopings debt repayment by housing is far lower than the benefits he can obtain from the company. Zhao Guopings behavior, to say the least, only advanced his interest in Huajiang real estate in advance, because the final settlement will be made.

In addition, six legal experts, including Gao Mingxuan, honorary director of the Criminal Law Research Association of China law society, Zhao Bingzhi, Professor of Law School of Beijing Normal University and President of the Criminal Law Research Association of China law society, and Chen Zexian, Professor of the Law Institute of the Chinese Academy of Social Sciences and executive vice president of the China Criminal Law Research Association, believed that Huajiang real estate, as an independent legal person, had an independent law It is a fact that Xu Yufang, as a shareholder, has a great interest dispute with Zhao Guoping and Li ADA. However, the internal contradictions purely belonging to the shareholders of the company can be resolved in accordance with the relevant provisions of the company law and the civil law. It is unnecessary for the judicial organs to intervene in the internal disputes of the company in accordance with the criminal law.

Upstream journalist Shi Tingting

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(function(){( window.slotbydup=window .slotbydup||[]).push({id:u5811557,container:ssp_ 5811557, async:true }Source of this article: Yang Qiang, responsible editor of upstream news_ NN6027