Filing standards and sentencing rules for the crime of breach of trust harming the interests of listed companies


Xian some actual control of PIP PIP company (Shanghai duolun industrial Co., LTD., hereinafter called duolun company) and Hantong company in December 1993, duolun company listed on the Shanghai Stock Exchange;Hantong Company was established in August 2009 and became a 70% subsidiary of Duolun Company around 2010.In May 2012 or so, the defendant Xian and the actual controller of duolun company li mou, the purchase of Li mou by Duolun Investment (Hong Kong) Co., LTD. Duolun 11.75% shares of 40 million shares.In November 2012, duolun company and Hantong company’s legal representative changed to xian mou.In June 2015, Duolun company changed its name to PIP PIP Company.At the beginning of 2016, fresh will be held by the company’s 11.75% stake transfer, no longer as the company’s legal representative.In July 2013 to February 2015, the defendant fresh one with more than the listed company as the company and its subsidiaries han through the legal representative of the company and the position of actual controllers is convenient, the color for the company’s performance, using forged han tong company development of jingmen ChuTianCheng project subcontract ShangLin so-and-so signature, making false money payment application and approval,In the name of the payment due and come-and-go funds, han tong company funds transfer to the company’s actual control Lin so-and-so, jingmen ChuTianCheng projects department account, individual account through the account transfer to fresh one account in the actual control multiple companies, individuals, transfer funds circulating total of more than 120 million yuan (the same as in the following currencies are).Among them, 23.6 million yuan was used by Xian for financial management, trading stocks, etc., until the case has not been returned, and part of the funds have been carried forward to the development cost account.Fresh some behavior has constituted breach of trust damage listed company interests crime.The first instance of the case sentenced to the defendant fresh two years of imprisonment, fined RMB 1.8 million yuan;He was sentenced to fixed-term imprisonment of four years and fined RMB 10 million yuan for manipulating the securities market, and decided to execute fixed-term imprisonment of five years and fined RMB 11.8 million yuan.But given the fresh one in a second trial during the voluntary confession forfeit, under its defenders testimony voluntarily signed the “plea forfeit their declaration”, in the second instance trial said have no objection to the first-instance judgment, willing to accept punishment punishment, and family members to help the next generation in the pay a fine of $11.8 million and pay back all the parts of the illegal income of 5 million yuan.It has the performance of confession and repentance.The defense counsel’s opinion on leniency of punishment to Xian, Shanghai People’s Procuratorate suggested leniency of punishment to Xian, the court accepted.Accordingly, the judgment is as follows: 1. The second criminal judgment of Shanghai No. 1 Intermediate People’s Court shall be upheld, that is, illegal gains shall be recovered.2, the appellant fresh a commit crimes of impairing interests of listed company in bad faith sentenced to eight months of the year, one million eight hundred thousand yuan fine, manipulation of the securities market sin sentenced to three years, four months ten million yuan fine, decided to prison for three months, four years eleven million eight hundred thousand yuan fine.The term of imprisonment shall be counted from the date the judgment is executed.If they are held in custody before the execution of the judgment, one day in custody is deducted as one day of the term of imprisonment, that is, from May 10, 2017 to August 9, 2021.)Article 9 of the Sixth Amendment to the Criminal Law stipulates that an article is added after Article 169 of the Original Criminal Law of the People’s Republic of China as one of Article 169.Article one hundred and sixty-nine of the criminal law of the People’s Republic of China is one of the directors, supervisors and senior managers of listed companies breach of duty of loyalty to the company, use his convenience, the manipulation of the listed company engaged in one of the following ACTS, the interests of listed companies to suffer heavy losses, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and concurrently or independently be sentenced to a fine;Where especially heavy losses are caused to the interests of the listed company, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined:(2) providing or accepting funds, commodities, services or other assets under obviously unfair conditions;(3) providing funds, commodities, services or other assets to units or individuals that obviously do not have the ability to repay debts;(4) providing security for a unit or individual that obviously does not have the ability to repay debts, or for any other unit or individual without justified reasons;(5) waiving the creditor’s right or assuming the debt without justified reasons;(6) harming the interests of the listed company by any other means.The controlling shareholder or actual controller of the listed company who instigated the directors, supervisors or senior managers of the listed company to commit the acts mentioned in the preceding paragraph shall be punished in accordance with the provisions of the preceding paragraph.Where the controlling shareholder or actual controller of the listed company that commits the crime mentioned in the preceding paragraph is a unit, the unit shall be fined, and the persons in charge who are directly responsible and other persons who are directly responsible shall be punished in accordance with the provisions of the first paragraph.I. Filing standards for crime of breach of trust harming the interests of listed companies “Breach of trust” means that the actor violates the company’s trust and loyalty obligation to the company and causes the listed company to suffer heavy losses by taking advantage of his position.The filing criteria mainly include :(1) providing funds, commodities, services or other assets to other units or individuals free of charge, resulting in direct economic losses of more than RMB 1.5 million yuan;(2) Providing or accepting funds, commodities, services or other assets under obviously unfair conditions, causing direct economic losses of more than RMB 1.5 million yuan to the listed company;(3) Providing funds, commodities, services or other assets to a unit or individual obviously unable to pay off debts, thus causing direct economic losses of more than RMB 1.5 million yuan to the listed company;(4) Providing guarantee for an entity or individual that obviously does not have the ability to pay off debts, or providing guarantee for another entity or individual without justified reasons, resulting in direct economic losses of more than RMB 1.5 million yuan of the listed company;(5) The listed company abandons its creditor’s right or assumes debts without justifiable reasons, resulting in a direct economic loss of more than RMB 1.5 million yuan;(6) Causing the listed trading of stocks, corporate bonds or other securities recognized by The State Council according to law to be terminated or suspended for many times;(7) Other circumstances that cause significant losses to the interests of the listed company.Second, the crime of impairing interests of listed company in bad faith the constitutive requirements of crime subject and not everyone can constitute this crime, the main body of this crime refers to the directors, supervisors and senior managers of listed companies against the duty of loyalty to the company, using the position, manipulation of the listed company engaged in unfair, unfair related party transactions, the interests of listed companies to suffer heavy losses.According to the second paragraph of Article 9 of amendment (VI) of Criminal Law, “The controlling shareholder or actual controller of a listed company who instigated the directors, supervisors or senior managers of the listed company to carry out the acts mentioned in the preceding paragraph shall be punished in accordance with the provisions of the preceding paragraph.”Therefore, the controlling shareholder or actual controller of the listed company who instigated the directors, supervisors and senior managers of the listed company to carry out acts of malicious damage to the interests of the listed company shall also be charged with this crime.The directors and senior managers shall be loyal to the company, and in order to protect the interests of the listed company, they shall file the case and investigate the wrongdoer’s liability in accordance with legal filing standards.Iii. Sentencing Rules for the crime of breaking trust harming the interests of listed Companies As for the specific sentencing standards for this crime, the Criminal Law stipulates that “whoever commits this crime and causes the interests of listed companies to suffer heavy losses shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined;If especially heavy losses are caused to the interests of the listed company, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.If the controlling shareholder or actual controller of the listed company that commits the crime is a unit, the unit shall be fined, and the persons in charge who are directly responsible and other persons who are directly responsible shall be punished in accordance with the above provisions.”This case the defendant fresh one as the chairman and the actual control of listed companies, by taking advantage of his office, the funds of listed company for personal profit activity, transfer funds circulating total of more than 120 million yuan caused serious losses to the listed company, transfer funds and the circulation accumulative total of more than RMB 120 million yuan, the case of standard is far higher than 1.5 million yuan,This behavior is in line with the crime of impairing interests of listed company in bad faith constitutive requirements of crime, the fresh one of first instance sentenced to two years in prison, fine but due to the fresh one in a second trial period with a voluntary confession and take the initiative to pay all fines and pay back part of the case such as the illegal income, with contrition, criminal punishment and sentenced to one year eight months of the fine,This judgment result is also the specific performance of the sentencing rules of this crime in practice.This crime is a result crime, that is, it must “cause the listed company to suffer great loss of interests” due to breach of trust.Combined with judicial practice, the sentencing of this crime should be used in accordance with the rules and procedures.

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