Lawyer

Chapter 126 Defense
"Appellant Cao Yueshan, do you have any objection to the facts and charges identified in the first-instance verdict?" asked the presiding judge.

"I have objections to the facts and charges identified in the first-instance verdict.

The first-instance verdict held that for the purpose of illegal possession, I concealed the facts without the ability to perform the contract, signed a construction agreement for a new residential real estate project with Lianda Company in the name of Red Sea Company, and defrauded 300 million yuan of illegal possession through the agreement, which constituted a contract fraud.I disagree with this.

When I signed an agreement with Mr. Chen of Lianda Company on behalf of Red Sea Company, the project materials submitted to the other party were all true, and there was no fraud.In addition, I also used all of the 300 million yuan security deposit paid by Lianda to Red Sea for the project, and there was no illegal possession. Therefore, I think the facts identified in the first-instance judgment are not clear. "

Cao Yueshan knew that this was his last chance. Once the charges were confirmed, he would face 15 years in prison, so he attached great importance to this trial and made a lot of preparations.

"Next, the prosecutor will question the appellant about the facts found in the first-instance verdict." The chief judge's voice without any emotion echoed in the empty courtroom, making people feel a little chilly.

"Appellant, when you signed the agreement with Lianda Company, were you capable of performing the contract?" the female prosecutor asked sternly.

"At that time, the project had just started, and I was raising funds..." Cao Yueshan was interrupted by the inspector in the middle of his words: "Please answer directly whether you have the ability to perform the contract."

"At that time, the project was financing, and I had already talked to several financial institutions." Cao Yueshan said.

"That means you don't have the ability to perform the contract at the time of signing the contract, right?" the female prosecutor said.

"Yes, there were insufficient funds at that time." Cao Yueshan's voice softened.

"According to the agreement between Red Sea Company and the Gaojiazhuang Village Committee, Red Sea Company will pay the Gaojiazhuang Village Committee 5000 million start-up funds. Will Red Sea Company pay?" the female inspector asked coldly.

"No payment." Cao Yueshan said.

"Are the approval procedures for new residential projects complete?" asked the female inspector.

"No, I'm applying for approval." Cao Yueshan said.

"Judge, I'm done asking." The female prosecutor said with a serious face.

"The defender of the appellant Cao Yueshan asked questions." said the presiding judge.

"Appellant, after Lianda Company paid a security deposit of 300 million yuan, what was the money used for?" Fang Yi asked.

"The construction deposit of 200 million yuan was refunded to the subsidiary company of Urban Construction, and the remaining 100 million yuan was used for the operation of Red Sea Company." Cao Yueshan said.

"During this period, have your salary and bonus increased?" Fang Yi asked.

"No, don't look at me as the boss of Red Sea Company, but my salary is not high. In order to pay employees and promote the operation of new residential projects, I have not been paid for several months. It is recorded in the company's financial account , now the company still owes me tens of thousands of wages." Cao Yueshan said.

"Before you signed the contract with Lianda Company, did Lianda Company send personnel to the site to see the project situation? Did it send professionals to conduct on-site due diligence on the project?" Fang Yi continued to ask.

"No, after Red Sea signed a construction contract with a subsidiary of Urban Construction, it was delayed due to funding problems. After the two sides terminated the construction contract, I was eager to find a construction party, so the conditions I gave were relatively good. I negotiated with four construction companies. Afterwards, Chen Zheng of Lianda Company felt that the project was good, and signed a construction agreement with Red Sea Company only after seeing the project renderings.

Lianda Company did not send anyone to the scene to check the actual situation. " Cao Yueshan said.

"Did the other party mention going to the scene to check the situation, or send someone to the owner to find out the situation?" Fang Yi asked.

"No, Lianda Company and Red Sea Company signed the contract because Chen was optimistic about the project. I showed him the agreement we had with Gaojiazhuang at that time. He had no objection." Cao Yueshan said.

"Judge, I'm done asking." Fang Yi said.His clear purpose was to let the collegial panel know through interrogation that Cao Yueshan did not embezzle the security deposit.

"The next step is to present and cross-examine evidence. Do the prosecutors, defenders, and appellants have any new evidence to submit?" asked the presiding judge.

"No." Three parties replied.

"The court investigation is over, and the court debate is now underway. Before the debate, the court draws the attention of both the prosecution and the defense. The debate should mainly focus on determining charges, sentencing and other controversial issues. Let the appellant and defender speak first. Appellant Cao Yueshan You can defend yourself." The presiding judge said.

"My defense is as follows:
First, the court found that the facts were not clear. The 300 million yuan security deposit paid by Lianda Company was not embezzled by me, but was used for the project and company operation, and I did not take a single cent.

Second, the construction agreement signed by Red Sea Company and Lianda Company is the true intention of both parties. I have never lied to Lianda Company.

Third, the new residential project is real. Although there is a problem with the funds of the Red Sea Company, the agreement it signed with the village committee is still valid and has not been terminated.

Because, I think the facts identified in the first instance were unclear and the evidence was insufficient, so I am not guilty of contract fraud.complete. "Cao Yueshan's self-defense opinion was written by Fang Yi at Fang Yi's prompt after Fang Yi helped him sort out the case during the meeting.

"Next, the defender of the appellant Cao Yueshan will speak." said the presiding judge.

"The defender believes that the appellant does not constitute the crime of contract fraud.

First, the new residential project in Gaojiazhuang Village really existed, and the appellant also subjectively wanted to build the project.Red Sea Company signed an agreement of intent with the Gaojiazhuang Village Committee, paid a deposit of 300 million yuan in advance, and rented villagers’ land to build temporary buildings, and created conditions for the performance of the contract. So far, the Gaojiazhuang Village Committee has not agreed with Red Sea Company terminated the agreement. It can be seen from this that the defense of the defendant cannot be completely denied just because Red Sea Company is short of funds and the project right certificate is being approved.

Second, the appellant went to Beijing to raise funds, not to avoid debts.Taking a step back, even if he is suspected of avoiding debts and his behavior is somewhat fraudulent, Red Sea Company still has a certain amount of initial investment in the new residential project, and has built some temporary buildings. The company still has a large amount of property rights and interests. In addition, Gaojiazhuang Village previously collected a deposit of 300 million yuan from Red Sea Company.Lianda Company can completely recover its losses through civil litigation.

Third, the procedures for new residential projects are not complete. However, in the current real estate development industry, irregularities such as "approving while doing work", "buying tickets before getting on the bus", and misappropriation of security deposits are relatively common. Lianda is a construction company and often communicates with Cooperating with real estate developers, it cannot be ruled out that Lianda Company is well aware of this.

Fourth, the appellant has been financing, and it is very common for the real estate industry to change financing at the sidelines. There is no developer who develops real estate with its own funds, so subjectively speaking, the appellant hopes that the construction contract can be fulfilled , and profit from the development of the project.

As for the unapproved project, it is a commercial risk for Lianda Company. As a professional construction unit, Lianda Company should have the duty of care.

Fifth, although the appellant misappropriated the security deposit paid by Lianda Company, it mainly focused on project expenses and did not squander it. The purpose of illegal possession is not clear.

complete. "Fang Yi said.

(End of this chapter)