Viewpoint... An effective defense of contract fraud from a commercial acceptance bill case.
Published:
2024-07-12
Financial cases often involve the intersection of criminal and civil. This paper combines its own practical experience in handling cases, and takes the issues involved in commercial acceptance bills in financial cases from the perspective of criminal and civil intersections as the direction of discussion for reference.
Financial cases often involve the intersection of criminal and civil. In general, the intersection of criminal and civil occurs when the subject of the case, the legal facts, the legal relationship or the subject matter involved overlaps with the criminal procedure. This paper combines its own practical experience in handling cases, and takes the issues involved in commercial acceptance bills in financial cases from the perspective of criminal and civil intersections as the direction of discussion for reference.
Summary of 1. merits
Company A purchased the rubber involved from Company B and resold it to Company C, which then sold it to Company D. At the same time, Company C and Company A signed a "Fund Occupation Service Contract", agreeing to lend funds to Company C. According to the above-mentioned contract, Company C shall first issue a commercial promissory note to secure the loan and use it as a payment to Company A. In addition to the rubber contract involved, there is also a contract relationship between the above-mentioned companies for the purchase and sale of aluminum alloy rods, and Company A has actually lent 24 million yuan to Company C.
After the above-mentioned contract was signed, Company A endorsed the commercial ticket to Company B to pay for the goods. When performing the second "Fund Occupation Service Contract" and planning to lend funds to Company C for the second time, after market due diligence, it was found that Company C's capital solvency was seriously insufficient and many commercial tickets issued could not be paid on schedule. As a result, Company A exercised its right to defend its uneasiness and suspended lending funds to Company C. Because Company D and Company A are affiliated companies, based on the debt dispute between Company C and Company A, Company D did not pay Company C for the rubber contract involved in the case for the consideration of risk prevention and for the sake of timely stop loss. In view of this, Company C reported the crime of contract fraud to the public security organ because it did not borrow the funds from Company A and did not receive the payment from Company D. Under the circumstances that Company D had agreed to pay the payment for the goods and Company A requested to cancel the endorsement of the commercial ticket involved, the commercial ticket was cashed to a third party, resulting in financial losses.
2. legal analysis
The case is complex, in order to avoid the breach of contract, economic disputes are wrongly characterized as the crime of contract fraud, it is necessary to accurately define the relevant issues of the commercial acceptance bill involved.
1. On the nature of the instrument
Article 4 of China's Bill Law stipulates that the right of bill refers to the right of the holder to request payment of the amount of the bill from the debtor, including the right of payment request and the right of recourse. In view of this, the right expressed by the bill is the right of the bill holder to request the bill obligor to pay a certain amount of claim, is the right of claim in the law of debt, not property rights or equity, and this right is to pay a certain amount of money as the content, rather than to pay other things or for a certain act. Therefore, in an essential sense, the bill is a kind of credit certificate of monetary claim.
2. How the instrument in question should be understood.
As mentioned above, the issuance of a commercial acceptance bill is only a form of payment. A promissory note has the effect of payment only after acceptance. Therefore, in the case of commercial bills of exchange are not accepted, the effect of payment of goods does not arise. Thus, Company C should not be deemed to have incurred a loss when it issues a commercial promissory note. In this case, Company C issued the note primarily to secure its commercial financing and not to settle the purchase price. The reason for the failure of the financing is mainly due to the market research and analysis of Company D and Company A, which found that Company C's external solvency is poor, and the payment of bills has defaulted, so it is difficult to continue to lend funds to Company A, which may be difficult to recover. However, the above-mentioned behavior was discovered only after Company A received the bill, and according to the analysis of the unique importance, context and causality of the bill, Company A must endorse the transfer when using the bill in question to pay, and once endorsed, if the bill in question is not paid, Company A will also bear the same payment responsibility, this situation has already occurred in the aluminum alloy rod purchase and sale case related to this case [case number:(202X) Lu xxx min Chu xxxx]. therefore, this case cannot be determined to have the purpose of illegal possession.
From the perspective of the holder of the bill involved in the case, when the electronic commercial bill involved in the case cannot be accepted, it can still claim the right to Company A based on the contract claim obtained by the sales contract. At this time, the holder can exercise the creditor's rights based on the sales contract between both parties, and can also exercise the bill rights according to the relationship between the creditor's rights and debts of the bill. To a certain extent, Company C does not have the realistic urgency to pay the bill immediately.
In view of this, the bill involved in this case is only a payment method of credit endorsement. If the promise is general, the bill itself does not have property rights and interests. The initiative to perform lies with Company C. If it thinks that the transaction involved is controversial, it can completely refuse to pay the bill or resolve it through other civil channels. The act of issuing the bill cannot be regarded as a loss. More attention should be paid to the motivation of Company C to pay.
3. Company C's payment of the note is not based on a misconception.
The business cooperation model in this case was determined after consultation among the transaction subjects. It is not a criminal method and should not be evaluated by the criminal law. Regarding all aspects of the transaction involved, there is also sufficient communication between the parties, and there is no fictitious facts or concealment of the truth. Especially the issuance of the bills involved.
Of particular concern is that after the maturity of the bills involved (the maturity date is May 10, 2022), Company C has more than five times of refusal to pay, and it has a clear understanding of whether the bills should be paid in this case. Since October 2022, Company D and Company A have been actively communicating with Company C and have commissioned a professional auditor to audit the associated claims and debts and sent the relevant reconciliation documents to verify the accounts, but Company C has not responded. According to the verification with the third-party company, under the condition that Company A requested to cancel the endorsement of the commercial ticket involved, Company C actually paid the commercial ticket to the third party, which was suspected of maliciously causing capital losses. Obviously, it wanted to intervene in the civil dispute through criminal means. The payment of the bill involved was not caused by other people's misunderstanding, and the property was delivered based on the misunderstanding.
In summary, the bill in question was not paid by Company C based on a misunderstanding, but was deliberately performed for its own business needs or for other purposes, and because there are multiple legal relationships in this case, it is an economic dispute rather than a criminal case. And the flow of funds in this case are in accordance with the contract for the purpose of the contract, rather than unauthorized disposal or squandering, did not lose the possibility of continuing to perform the contract, A company, D company does not have fictitious facts to conceal the truth and illegal possession of other people's funds of the objective behavior and subjective purpose. On the contrary, in this process, Company A and Company D have always taken a positive attitude towards resolving disputes between the two parties and have taken the initiative to negotiate with Company C to resolve payment disputes.
This case can not be presumed to have the purpose of illegal possession, such as C company believes that it has economic losses, it can be fully through civil litigation to carry out the right relief, this case is not a contract fraud crime.
3. the results of the case and reflection
After the defender submitted the above-mentioned defense opinions in this case, the investigative agency terminated the investigation of the case, and the company involved and the actual prosecutor were acquitted. As mentioned above, criminal-civilian cross-cases do not presuppose crimes committed by the enterprise itself, but even enterprises operating in accordance with the law may be passively involved in criminal-civilian cross-cases. The author believes that it is particularly important to properly choose criminal and civil litigation strategies and deeply analyze the legal facts and legal relations involved in the case. At the same time, we should give full play to the advantages of various procedures and formulate a disposal plan as a whole, so as to protect the legitimate rights and interests of enterprises and property interests, so as to realize the effective defense of criminal cases.
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