About the corruption case of Xu Pulai legal advice
Case synopsis:
    Xu Pulai, male, born 28 April 1946, university culture, former vice chairman of the Shexian real estate development company, Shexian urban and rural construction and Environmental Protection Committee of the CPPCC, Shexian. In June 15, 2007 for alleged corruption by the Huangshan City people's Procuratorate decides, on the same day by the Huangshan City Public Security Bureau criminal detention, in June the people's Procuratorate of Huangshan City 27 Nikkei decided, in June 29th by the Huangshan City Public Security Bureau arrest.
   Xu Shuanggui, male, born 8 April 1969, college culture, the original Shexian real estate development company, Shexian real estate development company manager. In June 15, 2007 for alleged corruption by the Huangshan City people's Procuratorate decides, on the same day by the Huangshan City Public Security Bureau criminal detention, the people's Procuratorate of Huangshan City in June 27 the decision by the Huangshan City Public Security Bureau, the execution of arrest.
   In January 22, 2008, the Huangshan City people's Procuratorate accused the defendant Xu Pulai, Xu Shuanggui, Sun Xiaobo, Zhou Junfan corruption, to the Huangshan City intermediate people's Court (hereinafter referred to as the Mount Huangshan intermediate people's court) to initiate a public prosecution, the Mount Huangshan intermediate people's court held a public hearing of the case, and in June 24, 2008 made (2008) yellow French early penalty No. third criminal judgments.
   The four defendants were dissatisfied, to appeal. In March 10, 2009, the Anhui Provincial Higher People's Court (hereinafter referred to as the Anhui High Court) to (2008) the penalty criminal No. 294th final ruling, revocation, remand. The Mount Huangshan intermediate people's court shall form a collegial panel, held a public hearing of the case.
   Mount Huangshan intermediate people's court after hearing the facts ascertained as follows:
   The defendant Xu Pulai, Xu Shuanggui corruption, in 2004 in Shexian real estate development company restructuring in fact
   Shexian real estate development company formerly known as Shexian municipal housing development corporation. In 1988 March 24 by the Shexian government approved the establishment of the Shexian Municipal Housing Development Corporation, nature of national enterprises, and China housing construction and Development Corporation of Anhui province Shexian company, revoked the company's financial under the newly established company, and agreed to the housing owned "housing construction team" membership development company leadership. In 1988 October, according to the executive meeting of the county government decided to "municipal engineering team" and "build team" from the Shexian municipal engineering into separate housing development company, the establishment of the Shexian municipal project management office. 1991 May Shexian Municipal Housing Development Corporation changed its name to the Shexian real estate development company.
   The defendant Xu Pulai in 1988 March to 1998 February as Shexian real estate development company, from February 8, 1998 to 2002 September Shexian urban and rural construction and environmental protection committee director, during the period of 2001 was added to the Ninth CPPCC Vice Chairman of Shexian (not in), in 2003 February was elected vice chairman of the Shexian tenth session of CPPCC; the defendant Xu Shuanggui in March 27, 1998 Shexian urban and rural construction and environmental protection committee appointed as Shexian real estate development company, in March 25, 2005, after the restructuring of Shexian Real Estate Development Co. Ltd. manager.
   The second half of 2004, by the Shexian enterprise reform leading group decided, Shexian real estate development company is a state-owned enterprise restructuring, the defendant Xu Pulai, Xu Shuanggui to the Shexian Enterprise Restructuring Office provides the company with 472 employees of the virtual list, so as to achieve the government agreed to the "debt" restructuring plan, and to determine the September 30, 2004 as a baseline assessment day. In 2004 December, and by the Shexian enterprises Deputy Director of the office Xing Zilin introduced, specially commissioned Anhui South accounting firms on the Shexian real estate development company assets evaluation and determine. In the assessment process, the defendant Xu Pulai by providing false materials, hiding a large number of state-owned assets, the state-owned assets of the company are not included in the assessment, the assessment of the net assets of the accounting firm Shexian real estate development company is RMB 66 yuan.
   Then the defendant Xu Pulai orchestrated the defendant Xu Shuanggui and Zhou Jun in Shexian real estate development company bids, Xu Shuanggui 4000000 yuan to the auction price to buy the ownership of the Shexian real estate development company, after the defendant Xu Pulai, Xu Shuanggui with 472 staff and workers of the company should be placed as false, cheat the local government's trust, and not the 4000000 yuan into the Shexian financial reform accounts.
   After the reform of enterprises, the March 25, 2005 changes registered in Shexian industrial and commercial bureau, state-owned enterprises by the Shexian real estate development company is changed into a private enterprises in Shexian real estate development company, shareholders, Mao Shujiao Xu Shuanggui. According to the identification of the Shexian real estate development company net assets in restructuring the benchmark day of September 30, 2004, 46641300 yuan (not including land value, the current assets 65037500 yuan, long-term investment is RMB 8703200 yuan, fixed assets of 2433500 RMB, current liabilities 29532900 yuan).
   Two, Xu Pulai, Sun Xiaobo, Zhou Jun common corruption facts
   The defendant Xu Pulai in 2002 to 2004 years 37 times by defendant Sun Xiaobo, Zhou Jun by making up Shexian real estate development company false wage claims table way, fictitious payout cash funds 2540432.8 yuan, for Xu Pulai to buy ancient residential building components, and Xu Pu to personal possession.
   Mount Huangshan then think: the defendant Xu Pulai colluding with the accused Xu Shuanggui of using the convenience of duty, while state-owned enterprises restructuring of the machine, to conceal, embezzlement of state-owned assets of RMB 46641300 yuan; the defendant Xu Pulai colluding with the defendant sun wavelet, Zhou Jun, taking advantage of the illegal possession of state owned property of 2540432.8 yuan, which constituted the corruption sin. In September 1, 2009, the Mount Huangshan intermediate people's court in France (2009) at the beginning of the word no. eighth yellow penalty criminal judgment decision are as follows: first, the defendant Xu Pulai committing the crime of corruption, sentenced to life imprisonment, deprived of political rights for life, the confiscation of one million five hundred thousand yuan; two, the defendant Xu Shuang in your committed the crime of corruption, sentenced to twelve years in prison, the confiscation of five hundred thousand yuan; three, the defendant sun wavelet committing the crime of corruption, sentenced to three years in prison; four, the accused Zhou Junfan of the crime of corruption, sentenced to three years in prison, four years probation.
   The four defendants were the verdict of the first trial, appeal to the high court of Anhui. The Anhui high court after another to find out:  In 1988 March, Shexian people's Government approved the establishment of the enterprise nature of the Shexian Municipal Housing Development Corporation, the Xu Pulai manager, at the same time will cancel national enterprises China housing construction and Development Corporation of Anhui province Shexian company property to the company, and the Shexian real estate business unit "of the Commission of housing construction team" under the company leadership. Shexian municipal real estate development company was first established, Xu Pulai lent RMB 171000 yuan as a part of the registered capital of the company. In October the same year, Shexian Project Construction Committee will "municipal engineering team" and "housing construction team" to draw from the Shexian municipal engineering construction company.
   The Anhui High Court also found: originally identified Xu Pulai, Sun Xiaobo, Zhou Jun common embezzlement amount is 43020 yuan, Xu Pulai colluding with Sun Xiaobo, Zhou Jun common corruption for lack of evidence, the Anhui Higher People's court shall not be recognized. Xu Pulai together with two other people virtual listed 37 wage payment voucher, misappropriation of public funds for the cash amount shall be RMB 2497412.8 yuan.
   The Anhui high court that: the judgment of the first instance found four appellant's criminal facts are clear, the evidence is sufficient, accurate, conviction, the appellant Xu Pulai, Sun Xiaobo, Zhou Jun of the appropriate sentencing. Legal proceedings. But the appellant Xu Shuanggui inappropriate, should be amended. To discuss the decision, by the Anhui High Court judicial committee decides as follows: first, to maintain the Huangshan City intermediate people's Court of Anhui province (2009) the first, three or four, five and second convictions for the defendant Xu Shuanggui part yellow French early penalty No. eighth criminal judgment; two, the revocation of Anhui Province, the Huangshan City intermediate people's Court (2009) yellow France early penalty No. eighth criminal judgments of second of the accused Xu Shuanggui of sentencing part; three, the appellant (defendants) Xu Shuanggui committing the crime of corruption, sentenced to eight years in prison, confiscation of personal property of one hundred thousand yuan.
   According to the principal A case of evidence, related criminal legal problems involved in the case, China legal consultation center of legal affairs professionals and the science of criminal law experts, analysis, research and demonstration.
    A court has identified, the state-owned assets investment lack of factual basis for the Shexian real estate development company
   Shexian real estate development company formerly known as Shexian municipal housing development corporation. When the company was founded, the government will State-Owned Company China housing construction and Development Corporation of Anhui province Shexian company assets and property to the company, and the business unit housing construction team under the management of the company. Accordingly, the court of second instance are identified, a Shexian real estate development company with state-owned assets investment, its nature belongs to State-Owned Company. We think, the court recognized that still lacks factual basis.
    (a) the Shexian Municipal Housing Development Corporation set up at the beginning, the specific amount of state-owned assets investment or net assets, lack of evidence
   Shexian Real Estate Company's predecessor is the Shexian municipal housing development corporation. In March 24, 1988 the government of Shexian approved the Shexian urban and rural construction and Environmental Protection Committee (hereinafter referred to as the Project Construction Committee): agreed to set up a "Shexian Municipal Housing Development Corporation" for the national enterprises, will be revoked "China housing construction development company Anhui Shexian company" property into the company, and agreed to the housing owned "housing construction team" belonging to the company leadership.
But from the prosecution point of view, the property transferred to the Shexian municipal engineering housing development companies, is there a net assets, and whether the debt of third people, all did not provide the asset appraisal report, the appraisal confirmation as evidence to prove. In the case of the court entered a stage, a court of second instance, nor of the above to find out.
   We believe that, if the inception of the company does not actually the transferee or no evidence in the net assets, debt to third people, and the registered capital of the company and start-up funds are not from within the enterprise assets, is unable to determine the enterprise state asset investment.
    (two) prosecutors did not prove "municipal engineering team", "housing construction team" from the Shexian municipal engineering housing development company set aside, there are still state-owned assets retained by the company
   In September 6, 1988, the executive meeting of the Shexian government decided: to draw the "municipal engineering team" and "housing construction team" from the "Shexian Municipal Housing Development Corporation", separate the establishment of Shexian municipal engineering construction management office. As a real estate development company, "municipal engineering team" and "housing construction team" should be the key departments of the company, if the state-owned assets investment (really need evidence to prove it), should also be embodied in the actual operation of the two departments. Because the designated two department set up another, actually, "tunneling" Shexian city housing development company, make it become a de facto "shell" enterprise owned by the whole people. This in the early years of the many "enterprise owned by the whole people", many of their cases, therefore, need to the judicial authority of the "essence" of judgment.
   At the same time, according to the parties concerned to provide "municipal engineering team" in 1988 April to August "ledger (a)", the former Shexian municipal housing development company was established in December 31, 1988 to "ledger (b)", that "municipal engineering team" separate accounts, independent accounting, the company did not merge with the "municipal the project team", only the implementation of management. As of December 31, 1988, Shexian Municipal Housing Development Corporation to the "housing construction team", "municipal engineering team" disbursement of funds and materials, a total of 73938.54 yuan. The original Shexian city housing development company was founded in March 25, 1988, Shexian housing management will be transferred to the receiving of the original "housing construction team" material price, 37673.39 yuan, the original China housing construction development company of Anhui Shexian branch bank deposit 30427.89 yuan, two total 68101.28 yuan, has been in the two teams draw another document issued after the by the end of the year is the consumption and away. According to the parties concerned to provide case, Xu Pulai took over the management of Shexian municipal housing development company, the company has 23 employees, purchase more than 3 yuan, due to various reasons, after it took over the company for half a year, about 23 employees arranged by the government, the original purchase 3 Wan Yuyuan should also be refunded government disposal.
   Therefore, whether it is because the government decided to set aside two departments, or the Xu Pulai initiative will refund the staff arrangement and purchase land disposal to the government, that took over management of Shexian municipal housing development company in Xu Pulai, personnel and assets nature of the company occurred a significant change. If the identified the nature of the company belongs to the "state", the judicial organ shall confirm the personnel and assets after the changes, the company still have the state-owned assets and rely on the state-owned assets operation of enterprises. If the proof of this fact can not be, can not be identified the state-owned assets actual investment in Shexian real estate development company. Therefore, also cannot prove the state-owned assets restructuring of the Shexian real estate development company has existed, its essence is no longer in state owned enterprises.
    (three) the Shexian capital construction commission confirmed that the government of Shexian to Shexian real estate development company has no funds, state-owned assets management departments have not confirmed that the company has owned assets exist
   In this case, a court of second instance, are identified, in Municipal Engineering in Shexian Housing Development Corporation was established, the industrial and commercial registration for state-owned enterprises, registered capital of 200000 yuan.
   We note that, in March 14, 1988, Shexian Capital Construction Commission issued to the Shexian Municipal Housing Development Corporation investment certificate 200000 yuan. But in September 8, 2008, the Commission has also confirmed that the registered capital of 200000 yuan is not the actual place. The evidence to explain, the government was not for the enterprises to the actual investment, the industrial and commercial registration in the "investment", in fact is a kind of state-owned capital "false capital contribution" behavior when the social context of common, in criminal justice should not carry out substantive identification of actual investment.
   According to the evaluation report. "Shexian real estate development company" (Anhui an investment rating (2007) the word no. 70) (hereinafter referred to as the 70 assessment report) said, the company registered capital of 200000 yuan, the Department of the Shexian Project Construction Committee from the repair cost of municipal engineering and new development fund. But the report content significantly and Project Construction Committee to prove the facts do not coincide, and the fact that, in the case of second instance, the Anhui high court ruling has not adopted the evaluation report on the registered capital of the company's origin. Therefore, the so-called Shexian Project Construction Committee of evidence that the country has investment in the Shexian Real Estate Company said, there is no basis in fact.
   Note that, in January 25, 1996 the implementation of the "registration of state owned property management approach" clearly stipulates, state-owned assets management departments on behalf of the government for the registration of the possession of state-owned assets of enterprises of all types of assets, liabilities, owner's equity, property rights, property ownership confirmation according to law. The state-owned assets management departments to the enterprise issued by the state-owned assets property right registration form. Implementation of the April 6th 2000 year "registration of state owned property management implementation details (2000)" stipulates that the fourth, Finance (state-owned assets management) departments audited and the people's Republic of China state-owned assets property right registration certificate issued by the "" (hereinafter referred to as the property right registration certificate), is to confirm the basis of enterprise property ownership between the legal documents and the government to the enterprise authorized operation of state-owned capital.
   According to the above provisions, the state-owned asset management department is the legal authority to define property rights of state-owned assets, the state-owned assets property right only after the state-owned assets management departments to make formal recognition or registration, to have legal effect, can be used as an effective evidence, any other departments, person's "definition" is the lack of authority, do not have the force of law.
   In this case, a trial court, the procuratorial organs are not provided, produced the company of state-owned property rights registration materials submitted by any state assets management departments of the state owned assets and property rights registration certificate and other evidence. Therefore, determination of the existence of the state-owned assets of the enterprises, and from the judicial determination of the enterprise belongs to the essence of the state-owned enterprises, the apparent lack of facts and legal basis.
   February 1, 2004 implementation of the "transfer of state-owned property rights in enterprise management Interim Measures" provisions of article twelfth, the transfer of state-owned property right of the invested enterprise to the transferors loss of the controlling position, organized by the state owned assets supervision and administration institutions at the same level for assets and capital verification, and entrusted the agency to carry out the relevant business in society. But in the case of material point of view, the Shexian real estate development company restructuring, the state-owned assets supervision and administration institutions in Shexian did not launch any assets of the enterprise, this is not a state-owned assets management departments of lax regulation, but that the enterprise is not state-owned assets, without the need for the so-called "state-owned assets supervision" and management.
    Two, Shexian urban construction, Shexian municipal engineering team to the Housing Development Corporation to 171000 Yuan Property Analysis
   In this case, the second instance court confirmed in May 3, 1988 June 16, 1988, Shexian Hui town construction team (the team building Xu Pulai individual all) two to paragraph 171000 yuan to the Shexian Municipal Housing Development Corporation, cheque "temporary loans.". The two level courts have recognized the debt between the two transfers between Xu Pulai and the company's relationship, rather than the personal investment of Xu Pulai. But from the analysis of the case materials, we believe, to the company of the two payments, should be identified as Xu Pulai personal investment and non substantial borrowing.
   First of all, from the methodology of legal interpretation perspective, including contract, check and other related terminology understanding, interpretation of the text of the law, not only in the literal sense, need antecedents and consequences, legal relationship with the legal fact occurring substance, for system analysis and objective interpretation. In this case, the court in determining whether Xu Pulai belongs to the status of national staff, the appears to be a substantive theory standpoint, it is through the form of substantive judgment, the judgment that the defendant is not conducive to (identified as a national staff) knot theory. In contrast, in the determination of the legal nature of Shexian emblem urban construction team two times of cash, but only pay attention to the cheque "temporary loan" this words, adhere to the same is not conducive to the defendant's formal interpretation. We believe that, in the same case different fact judgment, the court the contradictory interpretation of the position and method, and is unfavorable to the defendant, its conclusion is hardly convincing. Therefore, should according to the characteristics of criminal justice, based on the essence of the interpretation, the actual nature of the two funds were a fact, according to the judgment, not only writing from a check on the "temporary borrowing" literally, to determine its true nature.
   Secondly, from the objective conditions of Xu Pulai management of Shexian municipal housing development companies at the beginning of the term, the company is the Shexian government red head file form approved and registered by the national business units, therefore, that in the circumstances, Xu Pulai was unable to shareholders, investors appear, also cannot make its investment to reflect the "the investment fund", borrow "temporary loan" in the name of investment, should be more reasonable, credible. At the same time, trial court in fact part shall be separately identified, also confirmed that the "temporary loan" as a part of the registered capital of the company, the court in a company involved in nature, Xu Pulai also confirmed from the private enterprise, town construction team into the 171000 yuan for the company as the company's liquidity situation.
   Thirdly, from May 3, 1988, June 16, 1988, urban construction team two times to 171000 yuan to the Shexian municipal housing development company until now, after 23 years of time, during which the company name change, enterprise restructuring, change of the legal representative, in such a long time, Xu Pulai never claimed that he "creditor's rights" housing development company, Shexian municipal engineering, Shexian real estate development company did not the "loan" to the Pulai xu. After 23 years, so long "temporary loan", even in the civil law is also untenable. Therefore, the court only from a check written form of debt, between the "temporary borrowing" interpreted as simple Xu Pulai relationship with the company, only that the decision fundamentally flawed in full arguing.
   Finally, in August 20, 2008, the testimony of witnesses Ling Liping also made clear, Xu Pulai to the establishment of the company, the government only to brand, do not put. Therefore, Xu Pulai can only from his private enterprises transfer funds input. In addition to Ling Liping confirmed that the company was first established, Xu Pulai not only turned the two paragraph, but also took a lot of cash for starting and operating company. This is the nature of the enterprise, an important witness testimony that the defendant to influence behavior, the court should carefully examine and verify.
   Based on the above analysis, two "temporary loans" shall be deemed to be the Xu Pulai investment on the enterprise is appropriate, the court of second instance, a "temporary loans to" determination and the facts of the case of discrepancy.
    Analysis of the applicable law of state-owned enterprises, three, a court of second instance that the Shexian real estate development company
   According to the November 21, 1993 enactment of the "state-owned asset property right definition and property disputes Interim Measures" fourth stipulation: the definition of property right should follow the "who investment, who owns the property" principle. In the process of defining, maintaining the owner of state-owned assets and business users of the legitimate rights and interests, and shall not infringe upon the legitimate rights and interests of other property owners. Therefore, the state-owned property right is the principle of "who invest all".
   In this case, the court of second instance verdict, has repeatedly stressed that adhere to the "who investment, who all" principle. But because of the enterprise is a state-owned investment lack of evidence, and Xu Pulai on whether the individual is the only form of investment as judged by the absence of court is the basis ", who set up who all" principle to define the nature of the enterprise, therefore, contrary to the provisions of relevant laws to define the nature of the firm.
   First, the court of first instance judgment mentioned in the book: "although the state-owned units and individuals may not have on business investment or less investment, but because the state-owned units is established, the risk of the enterprise is still in the state owned units, therefore, the enterprise property rights should be identified as state-owned property." The verdict from the point of view, the court shall not in who to investment in enterprise and factual situation, obviously taking when the company established a government permit, industrial and commercial registration as a basis to define the nature of the enterprise, still follow the "who is who established the principle of all". In fact, foreign venture set up enterprises is a kind of civil liability, to prevent enterprises set up in false capital contribution, contribution is not real, withdrawing capital may be another commercial subject to trading formation property, management risk, qualitative and criminal justice activities according to recognize the nature of the enterprise to solve the acts of the parties completely different, should be treated differently, were determined by.
   Secondly, the court of first instance shall not find out whether the government in investment and does not confirm Xu Pulai investment situation, think the enterprise meets July 19, 1996 issued by the State Administration for Industry and commerce "on issues concerning approval of enterprises reply" provisions, shall belong to the state owned enterprises. The reply fifth stipulates: "the review the original registration for national or collective nature of the enterprise, the organizers did not actually invested, the legal representative of the enterprise and the main operators are not put into, and mainly rely on loans, loan and policy support and other operations, the original approved enterprise economic properties unchanged". But the confirmation from the judgment of the facts of the case, the provisions of this article do not meet the enterprise nature conditions, because the decision process there is no evidence that the enterprises mainly rely on borrowing and lending policies, support the development of business. On the contrary, the registered capital of an enterprise and start-up funds are from Xu Pulai's "temporary loan", Xu Pulai and other units financing income, these facts have been confirmed by the court of second instance. Therefore, the legal representative of Xu Pulai as the company and main operators, the actual existence of the input, the court accordingly identify the nature of the enterprise owned by the government, should belong to the applicable law errors.
   Finally, trial court in a trial court found the facts and applicable law, also that the company was established and during operation, the relevant government departments has appointed Xu Pulai and Xu Shuanggui as the manager of the company, the company's assets and personnel and the reorganization, the company to exercise the management State-Owned Company. So the company from the establishment, management, corporate type change form elements, to the company sources, assets operating in the change of the legal representative and essential requirements, shall be identified the company belongs to State-Owned Company. We think, from the court of second instance that the nature of the enterprise according to the company, in addition to the sources of assets in accordance with the law, the other is not defined the nature of the enterprise legal requirements. A judgment that, when the company set up individual and state-owned units may not have on business investment or less investment, the second instance court did not overturn a judgment about the nature of firm that part, therefore, the second is the same as in did not identify the enterprises involved in the case of non state owned assets investment, according to "who set up who all" principle.
   In short, a court of second instance, in determination of the nature of enterprise, confusing the civil legal relation "form" cognizance and criminal facts "boundary essence" judgment, the error in violation of the provisions of laws and law application problems. On the one hand, is because of legal consciousness and legal methodology mistakes, on the other hand, is also due to that the enterprises are state-owned assets into the facts and to Xu Pulai personal investment shall not be confirmed due to the lack of evidence.
   We think, enterprise nature is the legal act legal departments of enterprises, determine the nature is based on whether there is state owned assets investment, the court to determine whether the enterprise state-owned property must prove that the enterprise or is not state-owned assets, otherwise the law will not apply. Second, the court on the basis of witness Yu Jishui, Xing Zilin confirmed that the company belongs to the State-Owned Company that the enterprise is state-owned property, it also with legal provisions contrary evidence, because the individual is unable in the validity of the enterprise nature to prove.
    Four, the other did not identify the key facts
   In this case, the court of second instance in the evidence isn't really the case, fully identify the enterprise is state-owned property, and that Xu Pulai and other four corruption crime, also has the following problems in the case of other key facts.
    (a) Xu Pulai, Sun Xiaobo, Zhou Jun common corruption part
   The court of second instance that inspired Sun Xiaobo, Xu Pulai, Zhou Jun by making up Shexian real estate development company false wage claims table way, fictitious payout cash funds, for Xu Pulai to buy ancient residential building components, and Xu Pulai was the personal possession of constituted a crime of corruption. But Xu Pulai and other accomplices were argued: virtual listed wage consider tax evasion; virtual payroll basically for the company; primarily for the purchase of "ancient member", and purchased "ancient member" most heap in the company; for emblem park construction, is the company's investment behavior. In addition, the virtual wage income also for other business (such as reception, Sympathy Gift, poverty alleviation student etc.). In this regard, the court should be identified, but the court of second instance verdict has not explained. According to the parties concerned to provide the material display, Xu Pulai buy "ancient member" has been by the Shexian Tourism Bureau of Huizhou City Tourism Company Ltd. (state-owned enterprises) business, for visitors, fees are owned by the state, "the member" and return not by Xu Pulai personal possession. Therefore, the three people such as Xu Pulai inflated wage income property without the right procedure, which is identified as the proceeds of corruption, the lack of factual basis.
    (two) according to the "Shexian real estate development company asset evaluation report" (Anhui an investment rating (2007) the word no. 70) that embezzles problem
   In this case, the procuratorial organs and courts are based on "70 assessment report" cognizance of corruption the specific amount of the case, but the assessment report from the evaluation conclusion, accordingly finds embezzles the following problems.
   First, in the main building and the annex Xi state assessment, assessment of the value of 9334778.77 yuan, the value has been included in the amount of corruption. But from the China Co truction Bank Corp Shexian branch "on the Shexian real estate development company loan note", China Co truction Bank Corp Shexian branch "explanation", the company had to bank loans 3 pen, the principal is 7680000 yuan, 2296088.75 yuan mortgage interest, as with the state building. If that the collateral system proceeds of corruption, corruption in the calculation of the specific amount, should be deducted from the bank loans and interest for loans, belonging to the company shall be made by the company to repay the debt, the future, in the calculation of the amount of corruption, should be identified.
   Secondly, according to the parties concerned to provide the material display, 12 real estate projects in Shexian real estate development company and Associate Company independently developed, and 12 real estate projects, are designed by the Shexian urban construction team, construction. The two unit of Shexian real estate development company and the construction team, the legal representative of urban per capita for Xu Shuanggui, but Xu Shuanggui has always believed that the two companies are their own Private Companies, therefore, has been clearing the project did not. If the project team for the construction project was confirmed as corruption property list, the project does not balance, it should be unliquidated works to deduct that amount, otherwise, corruption also include the company's debt.
   Third, "70 assessment report" said, as the evaluation base periodday tax departments of the assets are not tax settlement, the tax to the tax department inspection data shall prevail. If the assessment report evaluation results contain various taxes and fees, shall be deducted in determining the amount of corruption.
    To sum up, first of all, the court of second instance involving the company, whether state-owned assets investment, and the specific amount of investment of state-owned assets are lack of relevant evidence to prove; secondly, Xu Pulai invested enterprises involved in personal funds should be recognized as investment funds, but the court has not recognized; finally, the court is in the absence of state-owned assets put into evidence, apply the relevant provisions in the enterprise is state-owned property. Therefore, in this case the current evidence is not that the enterprise is state-owned property, the object of crime of corruption is also unable to identify the missing four Xu Pulai constituted a crime of corruption.
   The above views, for your reference.

                                            China Legal Consultancy Center
                                            November 22, 2011