Lawyer

Chapter 127 tit for tat
"Now it's up to the prosecutor to speak." The presiding judge said.

"This court believes that the actions of the appellant Cao Yueshan constituted the crime of contract fraud. The reasons are as follows:
5000. Red Sea Company failed to pay the start-up capital of [-] million yuan for the new residential project in Gaojiazhuang Village on schedule, and the project development rights were in a state of uncertainty. Cao Yueshan did not inform Lianda Company of the relevant situation when signing the construction contract, and there was fraudulent behavior.

300. According to the investigation, Red Sea Company is small in scale and seriously insufficient in its own funds. After prepaying Gaojiazhuang with a security deposit of [-] million yuan, there is no funds in the account.

Although it is common for real estate development to finance while building, the appellant Cao Yueshan and Honghai Company’s financing capabilities should be taken into account to comprehensively consider their ability to perform contracts. Obviously, in the field of real estate development, a real estate development company of the size of Honghai needs financing from the society. ability is weak.

Red Sea Company lacks reliable financing channels, and objectively, it has not raised any funds as of the time of the case, so it can basically be determined that it has no ability to perform the contract.

[-]. In this case, part of the security deposit collected from the construction unit was used to return the security deposit paid by other companies and the company’s daily expenses. It can be determined that Cao Yueshan had the purpose of illegal possession, so the appellant’s behavior constituted the crime of contract fraud. " said the female prosecutor.

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

"Okay, regarding the defender's defense, we express our views as follows:
[-]. Although the new residential project does exist, because Honghai Company failed to pay the project start-up funds, Gaojiazhuang Village has the right to choose other partners according to the contract. Therefore, Honghai 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.

[-]. Although there is a situation in the real estate field where people get on the bus first and then buy a ticket, it cannot be said that such behavior is legal. If the ticket cannot be bought, or they are not qualified to buy a ticket at all, then the subsequent behavior will be suspected of fraud.This is the behavior of Red Sea Company.

[-]. Lianda Company came to the door many times to request the return of the security deposit, but the appellant was unable to pay. In this case, the appellant fled to the capital under the pretext of financing in an attempt to avoid debts. It can be seen that the appellant subjectively had intentionality and his behavior was fraudulent. sex……

It's over!" said the female inspector.

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

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

[-]. The real estate projects of Red Sea Company actually exist.

It is a fact that Honghai 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 start-up capital of 5000 million yuan on schedule, Honghai Company carried out land leveling and road construction on the temporary construction land, and built workers' housing, and made preliminary preparations.

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

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

Although Red Sea Company only provided the renderings of the project, due to the situation of "approving while doing work, buying tickets after boarding the car" is common in the real estate industry, and the evidence provided by the public prosecutor shows that Cao Yueshan told Lianda Company when signing the contract The other party's project is the construction of new residential buildings, and the project procedures are being processed, and they will come down soon.As a professional unit engaged in construction projects, Lianda Company should have been aware of the uncompleted or incomplete project procedures when signing the contract.

300. There is insufficient evidence to determine that Cao Yueshan illegally occupied Lianda Company's [-] million security deposit.

Judging from the evidence provided by the public prosecutor in the first instance, Red Sea Company invested in the new residential project in the early stage, and most of the security deposit obtained from Lianda Company was used for the normal expenses of the project (the refund of the security deposit of the subsidiary of the Urban Construction Group was also for the project. normal development).

Red Sea Company’s initial investment in the temporary construction land formed relevant property rights and interests, and the security deposit it collected from Lianda Company was used to repay project arrears, engineering costs and the company’s daily expenses. Cao Yueshan did not take the security deposit as his own Or squandering, subjectively want to operate the project successfully and make money through the project.

Although the 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 it is impossible to distinguish the authenticity from the false, and it is impossible to determine it.

Judging from the entire case, Cao Yueshan has been working hard on new residential projects. Although he concealed some behaviors 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 the financing is appropriate, the possibility of its ultimate profitability cannot be ruled out.

Therefore, the defender believes that in this case, it is necessary to comprehensively consider various factors such as the project background, Cao Yueshan’s efforts for project development, the whereabouts and uses of the security deposit, etc., to determine whether Cao Yueshan has the purpose of illegal possession. It is concluded that it subjectively has the purpose of illegal possession.

300. The loss of Lianda Company in this case can be remedied through civil means.As of the time of the incident, Honghai Company still had a security deposit of [-] million yuan in the account of the Gaojiazhuang Village Committee, and had also formed relevant property rights and interests in the temporary construction project.

This case is different from common contract fraud crimes. The security deposits collected by Cao Yueshan from the subsidiaries of the Urban Construction Group and Lianda Company were all used for the temporary construction facilities of the new residential project, the company's normal expenses, or the return of the previously collected security deposits. There is no possibility of squandering. Condition.

At the time of the incident, Red Sea Company was unable to repay Lianda Company's security deposit, but Xinhai Company still had certain property rights and interests in the completed temporary construction facilities of the new residential project. The company's overall assets and liabilities are not very prominent.If handled properly, the 300 million yuan loss of Lianda Company can be made up.

The defender believed that although Cao Yueshan had deceitful behavior in the process of signing the agreement, it did not affect the victim, Lianda Company, to provide relief through civil means. Therefore, the first-instance judgment held that Cao Yueshan constituted the crime of contract fraud, which did not conform to the principle of modesty in the criminal law of.

To sum up, Cao Yueshan did not constitute the crime of contract fraud.complete. "Fang Yi said.

(The principle of modesty, also known as the principle of necessity. It means that the legislature can set a certain behavior that violates the legal order only under the condition that the norm is really necessary—there is no other appropriate method that can replace punishment. become a crime)

(End of this chapter)