NorthBeijingCityJunMaoLawDivisionThingsWuThe

 

Lawyers acting for opinions

 

(Fan Yongzheng and Fuyuan County Bureau of industry and commerce administrative lawsuit)

Qujing Administration for Industry and commerce.

Beijing Jun Mao law firm lawyers Fan Yongzheng and assign this Fuyuan County Administration for Industry and commerce administrative licensing dispute case, Fuyuan County Administration refuses correction, Fan Yongzheng according to your office filed application, apply for your agency to carry out the supervision of law enforcement in Fuyuan County Administration for Industry and commerce. Therefore, the law gives the following agents:

A, facts, reasons and evidence

River town 1, Fuyuan County Chuang-tzu mountain coal mine is the collective ownership enterprise in 2001 2001 restructuring into Fan Yongzheng, the sole proprietorship enterprise. A sole proprietorship enterprise all formalities are handled by Wang Guangshun, Wang Guangshun to the enterprise into a fan and a sole proprietorship enterprise without objection.

In October 8, 1999, Fuyuan County People's Government of township collective enterprise assets leading group office issued Fu Ching office word [1999] ninth document "on the enterprises to change the economic nature of applications replied", agree he Xiang Chuang-tzu Shan Coal Mine of change for the private enterprises.

In January 6, 2000, Fuyuan County People's Government of township collective enterprise assets Leading Group Office of Fuyuan County Bureau of township enterprise management issued a "clean-up" identification certificate definition of river Xiang Chuang-tzu Shan Coal Mine of personal investment enterprises.

In July 21, 2001, Yunnan province Fuyuan East certified public accountants Co. Ltd made rich in word (2001) thirty-first, the capital verification report, confirm he Xiang Fuyuan County Chuang-tzu Shan coal mine is Fan Yongzheng personal investment.

(According to the facts mentioned above, confirm the Fuyuan County town of Chuang-tzu coal mine is Fan Yongzheng personal investment, Wang Guangshun in the registration of the enterprise without objection. In addition, if Wang Guangshun had invested in the enterprise, only in the name of Fan Yongzheng, at this time, should have the corresponding document agreed between Wang Guangshun and Fan Yongzheng, Fan Yongzheng also shall apply to the Wang Guangshun issued by the corresponding certificate.)

In July 24, 2001 2, a fan and a sole proprietorship enterprise between the two years to August 1, 2003, as the Fan Yongzheng mine is still king smoothing in accounting, in this two-year period, Wang Guangshun also raised no objection.

In July 24, 2001 3, a fan and a sole proprietorship enterprise to August 1, 2003 after two years of time, the coal mine all revenues to the fan are all individuals, no bonuses, partnership records. Wang Guangshun only accountant.

4, March 24, 2003, Fan Yongzheng was awarded the Fuyuan County Government "2002 annual coal work advanced individual", Fan Yongzheng owned coal mine in Qujing Coal Industry Association"Qujing coal industry 50 strong enterprises" [in Qujing City, a total of more than 500 coal mine].

5, in 2003 7--8 months of annual business license, the inspection authority responsible for the convenience of Wang Guangshun,Using the Fan Yongzheng name signatureProviding false materials, not apply for the cancellation of the Fan Yongzheng, the sole proprietorship enterprise. All application documents deregistration is Wang Guangshun false, no one is really. AndNot mine, not stamped with the seal provides a liquidation reportEtc.. Wang GuangshunHas admitted, cancellationFan YongzhengThe file is owned enterprisesWang GuangshunForgery, (2009) at the beginning of the word no. 196th Fumin "civil Award" and 2009 people end No. 725th "civil Award" which have been identified.)

6, at the same time (2003 7--8 months), Wang Guangshun used to be responsible for the annual business license convenience, with annual need to sign the name Fan Yongzheng in "materials for the partnership agreement", "Charter of partnership" last signature (Fan YongzhengDid not see the first few pages also does not sign the partnership agreement; in addition, according to the last page of content, the agreement should be five, and the fact that only aFan YongzhengSignature, several other areWang GuangshunFraudulent use of the), and used Fan Yongzheng's name and signature, forgery of the capital contribution certificate, the establishment of partnership enterprises false materials, for the partnership enterprise registration [Coal mineThe name has not changed, the legal representative has not changed, the official did not change(written off enterprise should recover the original seal issued a new stamp), also did not cover seal(against Guan Gongzhang)In order to deceiveFan YongzhengThe enterprise has not changed]. 2009 "civil Award" award: "true partnership enterprise shall not be recognized."

In particular, the cancellation of proprietorship and the establishment of a partnership enterprise completed in August 1, 2003 the same day![Trade and Industry Bureau officials efficiency is hasty, rapidly]

In fact, according to China's "sole proprietorship enterprise law" the fourth chapter "the sole proprietorship enterprise dissolution and liquidation", a sole proprietorship enterprise shall apply for the cancellation of, is to go through the liquidation procedure, at least more than 45 days after the time limit it, another "partnership enterprise law" also provides detailed procedures, this should be the two independent administrative behavior, the establishment of an individual proprietorship enterprise registration and partnership, how can be done at the same time?

7, Wang Guangshun in the false registration of partnership enterprises to provide "a capital verification report", as Wang Guangshun impostor fake "fan are" cheating. Therefore, the accounting firm shall be revoked. (Withdrawal of capital verification report behavior is out ofWang Guangshun forged documentsTo be found after the).

8, August 1, 2003 to July 28, 2008 5 years, the enterprise all income to Fan Yongzheng of all individuals, no bonus record, no partner meeting records effective evidence that Wang Guangshun advocates, Wang Guangshun only salary, no stock dividend is open it[Wang GuangshunUnilateral writingOnly a "bonus" record of 8 yearsNot having the force of law].

9, the coal mine 2007 annual income seventeen million four hundred and ninety-two thousand six hundred and ninety-four yuan nine cents (sixRMB17492694.69 yuan), to pay the tax: 2810000 yuan, net profit of six million one hundred and nineteen thousand two hundred and eighty-one yuan (seven - four centsRMB[6119281.74 yuan)Books, stamps, irrefutable evidence].

10, 1 2008 to May production of raw coal 4578.30 tons, sales inventory:: 12097.43 tons of raw coal. The average sales taxes not included price: 280.48 yuan / ton. Sales: three million three hundred and ninety-three thousand eighty-seven yuan (seven pointsRMB[3393087.17 yuan)Account books, vouchers and other irrefutable evidence].

11,In July 26, 2008 the "river Zhen Chuang-tzu Shan Coal Mine No. two Ishita Ayumi operating agreement" is all the evidence in this case only a signed by Fan YongzhengHandwriting, handwritingAgreement, before or after the file is printed. Fan Yongzheng low cultural level, knowledge, scribbled cannot read the contents of the agreement, the agreement is Wang Guangshun et al (the next day) to the illegal transfer of shares and deliberately cheating. And, the agreement content and the actual situation of coal mine in contradiction: from 2001 to 2008 all income 8 years all fan and all, Wang Guangshun only salary, no bonus [Wang Guangshun unilateral writing 8 years the only a "bonus" record obviously bogus:Each participating in nearly 700000 yuan financial vouchers and bank account vouchers in where?!In the agreement signed on the same day, Wang Guangshun will invade the coal mine about 1600000 yuan funds through the Agricultural Bank of China transfer toFan YongzhengThe wife, can also see that the transactions between them is accomplished through bank transfer mode].

12,In July 27, 2008, facing the operation good, profitable coal mine, Wang Guangshun coal mine operating difficulties, shortage of funds in the grounds, and the cashier Gu Huizhen Fan Yongzheng coal mine "56.66% shares" transferred to others for each received 1060 Wan Yuanzhan himself, and assist others in coal mine. Fan Yongzheng found after being cheated, Wang Guangshun from the transfer of shares to mine belongs to Fan Yongzheng private owned enterprises on the grounds, and prevent others in coal mine is the act of self-defence.If the mine is 3 of the partnership, the other partners external transfer of share is not against the interests of Fan Yongzheng Fan Yongzheng, there's no need to abandon profitable business and mine is not prevent others in coal mine cooperation, also not to hesitate to death that occurred.

13, 2011 5--6 month, Wang Guangshun led more than 40 people forced into the Fan Yongzheng coal mine, coal mine and keep staff, causing casualties accident,And thenFan YongzhengOut of coal mine, coal mine has been forcibly occupied, and unauthorized forcible recovery of production.

Two, Wang Guangshun's alleged conduct constitutes fraud, robbery crime, criminal responsibility shall be investigated according to Fan Yongzheng has the suspicion of fraud, robbery crime

In fact, Wang Guangshun used false materials, fictional facts, for cancellation of the registration of sole proprietorship enterprise and Fan Yongzheng for the business license for the partnership enterprise, illegal possession of Fan Yongzheng and others 10600000 yuan property, has been arrested for fraud.

2011 5--6 months, Wang Guangshun led more than 40 people forced into the Fan Yongzheng coal mine, coal mine and keep staff, causing casualties accident,And thenFan YongzhengOut of coal mine, coal mine has been forcibly occupied, has been suspected to constitute the crime of robbery.

Fan Yongzheng has been to propose to Wang Guangshun on suspicion of fraud, the crime of robbery charges, the Public Security Bureau will also be investigated for criminal responsibility of the crime of fraud is suspected of King smoothing, in accordance with the law.

Three,Fan Yongzheng and the County Bureau of industry and commerce administration litigation appeal case, the procuratorate has acceptedAt the same time, Fan Yongzheng also has been mentioned to the two judge court of perverting the law, the criminal charges.

(a) and two level trial court ruled that the fact is not clear, can not conclude that the Fan Yongzheng from October 31, 2006 or November 27, 2007 already know Fuyuan County town of Chuang-tzu coal mine has been secretly registered partnership facts.

After the lawyer take in two grade the trial court to recognize more than two years longest limitation of two case files material: Fuyuan County People's Court (2006 min) at the beginning of Fuyuan County labor dispute arbitration No. 581st civil judgments and the Committee of rich old Zhong (2006) No. 21 award and the Qujing City Intermediate people's Court (2007) in the final seventy-third civil judgments; Fuyuan County People's Court (2007) No. 175th Fu early penalty criminal incidental civil judgment, the lawyer thought, from two level trial court ruled that the fact is unclear. The reasons are as follows:

1,Fuyuan County labor dispute arbitration committee rich old Zhong (2006)21Confirmed, award and files:

    The labor dispute arbitration committee did not make any definition of the nature of the enterprise in Fuyuan County town of Chuang-tzu coal mine, there is no business license related enterprises. On the contrary, the award content display"Court trial, the defendant to the plaintiff appealed to did not understand the content on the grounds, refused to reply."

    Fan Yongzheng's cultural level is low, the labor arbitration cases did not hire an agent ad litem,It do not understand to the labor arbitration matters which, in this case no relevant business license conditions, the how can according to this case to understand their own personal owned enterprises have been others had changed to the partnership enterprise fact.

2,Fuyuan County Court (2006Min) at the beginning of the word no.581Number of civil judgments and case materials confirmed:

(1Fuyuan County People's court) Notice of proof, litigation notice, civil litigation risks prompt, litigation fee receipt, subpoenas and other materialsThe receipt by Wang Guangshun in2006Years9Month22On receipt ofFan Yongzheng didn't know;

(2)2006Years10Month29Day, Fuyuan County town of Chuang-tzu coal mine to the Yunnan Optima Fan Fei law firm lawyersThe power of attorney only stamp, Fan Yongzheng did not signFan Yongzheng may not know the nature of the enterprise;

3.Fuyuan County People's courtThe verdict of the receipt by Wang Guangshun2006Years11Month28Day of receipt, Fan Yongzheng did not sign, Fan Yongzheng nor Chuang-tzu knows Fuyuan County town of mountain coal enterprise natureHas been changed;

(4Fuyuan County People's court transcripts) isBy Wang Guangshun2006Years11Month28Day of receipt, Fan Yongzheng did not sign, Fan Yongzheng nor Chuang-tzu knows Fuyuan County town of mountain coal enterprise property has been changed.

What the nature of the enterprise all the above materials were not involved in Fuyuan County town of Mount Chuang-tzu coal mine is an individual proprietorship or partnership issues.

3,Qujing City Intermediate Court (2007The final section of the word)73Civil judgement and records confirm:

    Second instance not hearing, Fan Yongzheng himself did not participate in the,What the nature of the enterprise and its contents have not been involved in Fuyuan County town of Mount Chuang-tzu coal mine is an individual proprietorship or partnership issues.

4,Fuyuan County People's Court (2007Rich penalty) at the beginning of the word no.175Number of criminal incidental civil judgment and records confirmed: Fan Yongzheng made no record, no statement in Fuyuan County town of Chuang-tzu coal mine for the partnership, Fuyuan County People's court nor on the nature of the enterprise of coal mine are defined.

  (two) two counties class trial court ruled Fan Yongzheng request exceeds the limitation of action, erroneous application of the law.

    In two level trial court for legal basis,The Supreme People's court "about some problems in the implementation of" the people's Republic of China Administrative Procedure Law > interpretation of "the first paragraph of article forty-first: the executive specific administrative acts, did not inform the citizens, legal persons or other organizations the right to appeal or the prosecution, prosecution deadline from the citizen, legal person or other organization knows or should know right or calculation prosecution deadline date, but he knows or should know that the content of specific administrative acts date not exceeding 2 years.

Forty-fourth sixth: any of the following circumstances, should be ruled inadmissible; have to accept, reject: (six) the prosecution than the statutory time limit without a justifiable reason;

"Administrative procedure law of the people's Republic of China in sixty-first" paragraph 1: the people's court, processing separately according to the following circumstances: (a), in the original judgment, applicable laws, regulations and correct judgement, dismissed the appeal, upheld the.

In fact, from two level trial court erroneous application of the law.

The Supreme People's court "on the implementation of people's Republic of China Administrative Procedure Law" interpretation of several issues "forty-second provides that: citizens, legal persons or other organizationsDo not know the specific administrative act of an administrative organ of the contentThe prosecution deadline, from knew or should have known that calculate the content of the specific administrative acts of the day.To not move the specific administrative act made from the date of making more than 20 yearsOther specific administrative acts, from the date of making more than 5 years of litigation, the people's court shall not accept the.

"The transfer of management Interim Provisions" third transfer of mining rights:Exploration rights, mining rights as property rights, do not apply to the dynamic adjustment principle of laws and regulations.A legal person or any other economic organization of natural person, the mining rights in accordance with the law called the right of mining people. The right of mining people according to the law of the mining right to possess, use, benefit from and dispose of the right to.

In this case are in fan2009Years7Months before, do not know the specific administrative act in Fuyuan County Administration for Industry and commerce, and mine belongs to property right, is still the law, made so, even under the legal basis and two levels of the trial court, Fan Yongzheng know from day infringed rights since there is no more than2The prescription of years. Moreover, the limitation of action in the case of Fan Yongzheng should be a specific administrative act from the date of making administrative organs20Years.

In addition, on the basis ofThe Supreme People's court "about some problems in the implementation of" the people's Republic of China Administrative Procedure Law > explanation "forty-fourth article sixth:" any of the following circumstances, should be ruled inadmissible; have to accept, reject: (six) the prosecution than the statutory time limit without a justifiable reason "and the ninety-seventh" people's court the trial of administrative cases, except in accordance with the administrative procedure law and the relevant provisions of this interpretation, can refer to civil litigation." The provisions of the administrative litigation, should also adapt to the provisions of the civil litigation limitation suspension, interruption, continued. Fan Yongzheng take toThe central, province, city, county, the Department of industry and commerce, requesting revocation of the partnership, the restoration of the original enterprise behavior, as the limitation of action, interrupt, continue to cause, in conformity with the provisions of justifiable grounds.

    Therefore, the court ruled that the fact, erroneous application of the law. Obviously, the crime of misuse law in adjudication, Fan Yongzheng has been in accordance with the law to prosecute prosecution, shall be investigated for criminal responsibility of judges.

    Administrative act four, Fuyuan County Administration for Industry and commerce registration Fan Yongzheng owned enterprises is wrong, shall restore owned enterprises

1, Wang Guangshun Fan Yongzheng owned enterprises apply for cancellationThe lack of Fan Yongzheng's power of attorney;

2, Wang Guangshun Fan Yongzheng owned enterprises apply for cancellationWithout Fan Yongzheng, the official seal of the enterprise;

3, Wang Guangshun Fan Yongzheng owned enterprises apply for cancellationLack of Fan Yongzheng to permit;

4, Wang Guangshun Fan Yongzheng owned enterprises apply for cancellationThe lack of a liquidation report Fan Yongzheng;

5, Wang Guangshun Fan Yongzheng owned enterprises apply for cancellationThe lack of liquidation list Fan Yongzheng;

6, Wang Guangshun Fan Yongzheng owned enterprises apply for the cancellation of a signature on a document, and Fan Yongzheng himself for enterprise registrationSigning is not consistent;[evidence]

In these circumstances, Fan Yongzheng advocated to rights, Fuyuan County Administration for Industry and Commerce for the cancellation of registration owned enterprises, individual proprietorship business recovery, Fuyuan County Administration for Industry and the relevant responsible person should close partnership, restoring the Fan Yongzheng owned enterprises.

On the basis of "administrative punishment law" article twenty-second "illegal act constitutes a crime, the administrative organ must transfer the case to the judicial organ, shall be investigated for criminal responsibility according to law." Regulations, Fuyuan County Administration for Industry and Commerce shall transfer the case to the public security organ, shall be investigated for criminal responsibility Wang Guangshun fraud looting of property in accordance with the law, and to revoke the deregistration and registration of establishment.

In 2011 May 5 to the accused person to apply for cancellation of registration of handwriting identification and Fan Yongzheng owned enterprises. But,Still in Fuyuan County Administration for Industry and the relevant responsible person is not, be forgetful of one's duties, malfeasance prevarication, caused Fan Yongzheng to stop production, resulting in huge economic loss and mental damage Fan Yongzheng.

In addition, according to Fan Yongzheng, the administrative procedure of second instance ruled trial judge personally told him the book issued, although it is rejected a request to exceed the limitation of action for, but at the same time the court to Fuyuan County Administration issued the "judicial proposals",Three advices:

1.Fuyuan County Administration illegal administrative acts;

2.There are errors in Fuyuan County Administration Work in;

3.Fuyuan County Administration for Industry and Commerce shall correction.

Fuyuan County Administration for Industry and Commerce has obviousSuspectedBe forgetful of one's duties, play favouritism and commit irregularities constitute not handing over criminal cases of malfeasance crime, Fan Yongzheng has anti dereliction to county, city procuratorate Bureau filed criminal charges of infringement, the procuratorate has accepted.

Five, Qujing City Administration for Industry and Commerce shall bear the responsibilities of law enforcement supervision, shall be ordered to Fuyuan County Administration for Industry and commerce to restore Fan Yongzheng's sole proprietorship enterprise registration

According to the "State Administration for Industry and Commerce on the Interim Provisions" of law enforcement supervision and administrative departments for Industry and Commerce second: law enforcement supervision referred to in these regulations, refers to the superior administrative authority for Industry and Commerce on the inferior administrative authority for Industry and commerce, inspection, the administrative department for Industry and commerce at all levels of the organization and its dispatched institutions of administrative law enforcement, supervision and evaluation the activity, correct.

Article SixthScope: law enforcement supervision include (six) the act of administrative license.

Article tenth: the superior administrative authority for Industry and Commerce in the supervision of law enforcement found in law enforcement, law enforcement organs at lower levels of illegal or improper do not perform their statutory duties, shall be in accordance with the relevant provisions and put forward rectification opinions, and issued a "correction notice" to lower levels of administrative law enforcement organs, or directly corrected. The lower bodies received "administrative law enforcement" corrective notice, shall be carried out within the prescribed time limit, and to report within ten days after the completion of the execution of the higher authorities the execution result.

According to the "Yunnan administrative law enforcement regulations" article second: Supervision of subordinate administrative departments of administrative law enforcement activities conducted by the administrative department in charge of the.

Article eighthScope: the people's government at or above the county level and the Department of supervision of administrative law enforcement: (two) the specific administrative act is legal, proper;

Article twelfth: the specific administrative act in any of the following circumstances, the people's government at the same level or the department authorized by the legal affairs institution legal institution of the people's government at or above the county level and their subordinate departments, can be issued "administrative law enforcement supervision book" to the lower level people's governments or departments, to limit or the people's government at the corresponding level to correct or department shall be revoked or altered: (four) administrative act is obviously not appropriate; (five) other violations of laws, regulations, rules and regulations to make concrete administrative behavior. [The legal basis]

     The Legal Advice Bureau in three working days to issue "administrative law enforcement corrective notice" or "administrative law enforcement supervision and inspection book", instructed the Fuyuan County Administration for Industry and commerce:

    (1) removed in August 1, 2003 to Chuang-tzu Fuyuan County town hill mine (owned) administrative license cancellation decision in enterprise;

   (2) removed in August 1, 2003 to Chuang-tzu Fuyuan County town hill mine (partnership) administrative licensing decision of enterprise registration;

   (3) recovery business license Fuyuan County town Chuang-tzu Shan Coal Mine of a sole proprietorship enterprise legal person.

    The provisions on the basis of the materials, the facts and the law, the lawyer advised your office to handle the case according to the law, so as to be forgetful of one's duties, breach of privilege and malfeasance crime being investigated for criminal responsibility according to law.

 

                                             Lawyer: Jiang Chaofeng

 

                        March 31, 2012

Tel: 13911860432