Entrepreneurs-Don't go to jail for getting financial funds

Introduction: "Entrepreneurs in China are either in prison or on their way to prison" This sounds a bit exaggerated, but it is by no means alarmist. The Criminal Law of the People's Republic of China stipulates a lot of charges for enterprises from establishment to cancellation, production and operation, investment and financing, such as the crime of falsely reporting registered capital, the crime of obstructing liquidation, the crime of illegal operation, and the crime of defrauding loans. Many of these crimes have attracted the attention of entrepreneurs because they are obvious and direct. However, the author thinks that entrepreneurs have not paid attention to the fact that enterprises are suspected of defrauding financial funds and are investigated for criminal responsibility.

as we all know, in order to promote economic development, the government has set up various special funds and financial subsidy projects to support enterprises to become bigger and stronger. Enterprises, on the other hand, have racked their brains and exhausted their efforts to obtain financial funds, and often take pride in obtaining financial funds as an important reference factor to measure the soft power of enterprises. Why, thirty years in Hedong, thirty years in Hexi. In recent years, because of anti-corruption, officials have been tried for corruption, while enterprises and entrepreneurs who have obtained financial funds through their approval or instructions, mediation, activities, etc. cannot escape the law for various reasons. Of course, anti-corruption is not the only reason to trigger such cases, but one of the triggering factors. More importantly, enterprises and entrepreneurs pay insufficient attention to the declaration conditions of financial funds.

1. Two typical cases

These two cases were both obtained by searching and screening by/,setting the keyword as "special fund for fraud" and the region as "Yunnan".

(1) Tai Junlin's fraud case, the case numbers are: (215) Kun Xing Yi Chu Zi No.71, (215) Yun Gao Xing Zhong Zi No.1341. In this case, Tai Junlin, the chairman of Yunnan Pu 'er Tea Factory Co., Ltd., was closely related to Shen Moumou, the then vice governor (who was in charge of the agricultural development office at that time and was mainly responsible for organizing, managing and implementing the national agricultural development funds and projects), knowing that Yunnan Pu 'er Tea Factory Co., Ltd. did not meet the clear conditions for project establishment in the "Guidelines for the Application of National Agricultural Comprehensive Development Support Leading Enterprises to Drive Industrialization and" One County, One Special "Industrial Development Pilot Project in 213". Upon Shen's instruction to Zhao Xiao, then director of the Agricultural Development Office of the Yunnan Provincial Department of Finance, Tai Junlin arranged for the company's employees to prepare false application materials, including false cooperation agreements and false audit reports, and passed the project approval smoothly. The financial subsidies of 15 million yuan applied by the company for project establishment were allocated to the special fund account of Ninger County Finance Bureau. Later, due to the censorship of Shen Moumou, the company finally did not receive the financial subsidy of 15 million yuan. The Kunming Intermediate People's Court found Tai Junlin guilty of fraud (attempted) and sentenced him to four years in prison. On appeal, the Yunnan Higher People's Court upheld the original judgment.

(2) Li's fraud case, the case number is: (216) Yun 112 Criminal Chu No.533. In this case, Li Moumou, the chairman of Yunnan Moumou Co., Ltd., with the help of Yang (another department), deputy director of the Market Operation Regulation Department of Yunnan Provincial Department of Commerce, violated legal procedures to declare the project, fabricated facts, concealed the truth, and deceived the business department and the financial department to get the project and the corresponding special financial funds, but only made simple investment or even failed to invest in the project. In order to cope with the acceptance, a series of fraudulent acts were carried out, and a large number of false contracts, false invoices and false audit reports were provided, but they were not seriously fulfilled or created conditions for the active implementation of the project. In 211 and 212, the company * * * defrauded the financial subsidy of RMB 1.1 million, and used the special subsidy funds for non-project purposes such as internal lending of affiliated companies and repayment of arrears, resulting in the failure to return the special funds after the project acceptance. In the end, Li Moumou, the chairman and legal representative of the company, was sentenced to 14 years in prison and fined RMB 1 million for committing fraud.

By analyzing these two cases, it is found that the legal representative and chairman of the enterprise committed the crime of fraud because they declared special financial funds, which has the following important characteristics: knowing that the enterprise does not meet the conditions for project declaration; Actively organize and compile false declaration materials for declaration; Obtain the support of relevant leaders during the declaration process; The financial department allocates financial subsidy funds; Enterprises receive huge financial subsidies.

So, are enterprises suspected of defrauding special financial funds or financial subsidies, and all entrepreneurs are investigated for criminal responsibility? That was not the case.

second, administrative responsibility or criminal responsibility?

(I) Administrative Responsibility

As far as the current laws and regulations are concerned, the main legal basis for an enterprise to be investigated for administrative responsibility for defrauding financial funds is the Regulations on Penalties and Punishment for Financial Violations. Article 14 of the Regulations stipulates: "Enterprises and individuals who commit one of the following acts shall be ordered to make corrections, adjust relevant accounting accounts, recover relevant funds used or defrauded in violation of regulations, give a warning, confiscate illegal income, and impose the relevant funds defrauded." The person in charge who is directly responsible and other persons who are directly responsible shall be fined between 3, yuan and 5, yuan: (1) defrauding financial funds, loans from foreign governments and loans from international financial organizations by means of false reporting or impersonation; ..... "Of course, there are also many regulations or normative documents that regulate the punishment of specific projects for violating financial discipline. For example, the Measures for Handling Violations of Financial Funds for Comprehensive Agricultural Development is to specifically regulate violations of financial funds for comprehensive agricultural development projects.

Generally speaking, after an enterprise is investigated for administrative responsibility for defrauding financial funds, the case is rarely transferred to the judicial organ for re-handling, and the risk of entrepreneurs taking criminal responsibility is greatly reduced. For example, on September 8, 216, the Information Office of the Ministry of Finance published five cases in official website, the Ministry of Finance, in which new energy vehicle manufacturers defrauded and illegally sought financial subsidies. The summary of the results was: the enterprise was disqualified from financial subsidies, the central government refused to grant subsidies, all the pre-allocated central financial subsidies were recovered, and a fine was imposed according to a certain proportion of the financial subsidies obtained, which was not transferred to the judicial organs.

(II) Criminal Responsibility

Compared with administrative responsibility, criminal responsibility has dealt a heavier blow to enterprises and entrepreneurs. Entrepreneurs usually think that obtaining financial funds is mostly based on the interests of the company, and it is carried out in the name of the company. Even if it constitutes a crime, it should be a unit crime. It is really wrong to bear criminal responsibility. In some cases, some defenders did suggest that entrepreneurs should not bear criminal responsibility, but the court rejected it. According to "the NPC Standing Committee on <: Criminal Law of the People's Republic of China > Interpretation of Article 3 stipulates that "companies, enterprises, institutions, organs, groups and other units commit acts that endanger society, and those who organize, plan and implement such acts shall be investigated for criminal responsibility according to law if the specific provisions of the Criminal Law and other laws do not stipulate that the criminal responsibility of the unit shall be investigated". If the company commits acts that endanger society as stipulated in the Criminal Law, but the law does not stipulate that it is a unit crime, the person who organizes, plans and implements such acts may be investigated. Therefore, the crime of fraud has become a sword of Damocles hanging over entrepreneurs.

III. Overview of the crime of fraud

(1) Provisions on charges

Article 266 of the Criminal Law stipulates that whoever defrauds public or private property in a relatively large amount shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also or only be fined; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; If the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 1 years or life imprisonment, and shall also be fined or confiscated. Where there are other provisions in this Law, such provisions shall prevail.

according to the document No.145 of Yungao Law [213] issued by Yunnan Higher People's Court, Yunnan People's Procuratorate, Public Security Department and Justice Department, the Notice on Implementing Specific Amount Standards in Handling Criminal Cases of Fraud in Yunnan Province is determined to start with 5, yuan for "large amount", 5, yuan for "huge amount" and "extremely huge amount".

(II) Definition and basic structure

The crime of fraud refers to the act of defrauding a large amount of company property by deception for the purpose of illegal possession. The basic structure is as follows: (1) the actor commits deception (including fabricating facts and concealing the truth); (2) Deception causes the deceived person to have or continue to maintain a wrong understanding; (3) The deceived person disposes of the property based on wrong understanding; (4) the actor or a third person related to the actor obtains property; (5) The victim suffered property losses as a result. Combined with two important cases, it is not difficult to conclude that the basic behavior structure of entrepreneurs being investigated for criminal responsibility for fraud because of enterprises defrauding financial funds is: (1) knowing that enterprises do not meet the qualifications and conditions for obtaining financial funds; (2) concealing the fact that the enterprise does not meet the conditions for obtaining financial funds, compiling and providing false materials for declaration; (3) The department in charge of financial fund projects and the disbursement department believe that the enterprise meets the conditions for obtaining financial funds based on false materials; (4) the financial department allocates financial funds; (5) Enterprises obtain financial funds.

to sum up, it is enough to be proud and boastful for enterprises to obtain financial funds from government departments. However, if financial funds are obtained by fabricating facts or concealing the truth, enterprises may face administrative and legal risks, while entrepreneurs may be suspected of fraud. Therefore, enterprises should think twice and pay enough attention when declaring financial funds. Of course, although this article focuses on enterprises obtaining financial funds by deception, entrepreneurs may be suspected of fraud. However, it cannot be ignored that if ordinary people obtain financial funds by fictional facts or concealing the truth, they may also be investigated for criminal responsibility for committing fraud. It can be said: Skynet is long, sparse but not leaking!