[] is typing and revision

 

             The complainant (criminal and civil and application)

 

The complainant (Petitioner): Duan Qigui, female,Years old, culture:.

Address: Zhongshan City, Guangdong Province, overseas Chinese Village Lake Street No. 6

 

True identity and qualification:

In December 20, 1999 1, the return of Macao to the motherland, in December 19, 1994 in Macao, registered private enterprises: Chairman, Macao Tai Chi International Investment and Development Co., the legal representative of the company, the registration number: S09762.

2, January 4, 1995, advanced to the equity transferor "Yinhua Macao investment and Development Co. Ltd." equity transfer deposit 3000000 yuan of the drawee.

3, January 6, 1995, on behalf of the Transferee "Macao Tai Qi International Investment Development Limited company", and the equity transferor "Yinhua Macao investment and Development Co. Ltd., signed the" equity transfer contract, namely: "the January 6, 1995 agreement", is the transferee (b) of the signatory. The transferor (Jia Fang) signature is Liu Gui dilute.

During 4, January 6, 1995 to August 8, 1997, the newly established after the reorganization of the joint venture corporation: the big shareholders chairman, Macao Tai Qi International Investment Development Limited legal representative of Shanghai Taiqi Real Estate Co. Ltd holds 95% equity and rights and interests of the people. The chairman, is also a joint venture corporation Shanghai Taiqi Real Estate Co., the company's legal representative, general manager.

5, July 28, 1995, January 6, 1995 is to fulfill the "agreement", paid to the equity transferor Yinhua Macao Investment Development Company Limited equity transfer payer gold 8000000 yuan.

6 1995, January to July, is the equity transferor Yinhua Macao investment and Development Co. Ltd., received the equity transfer gold 16000000 yuan at.

7, in August 8, 1997 August 8, 1997, is the replacement of assets "agreement" signed the legal representative of Party B: Shanghai Taiqi Real Estate Co. Ltd..

The complainant (Petitioner): Duan Qigui, refuses to accept the Guangdong Provincial Higher People's court, in May 27, 2005 (2003), Guangdong high punishment two final No. 385th "criminal judgments", make "section Qigui committed illegal embezzlement, sentenced to 14 years in prison" and the civil rights disputes, illegal the so-called "recovered Duan Qigui embezzlement 44030688690000 yuan, return to the equity transferor" Yinhua Macao investment and Development Co. Ltd. "wrong decision! Against the Guangdong Provincial Higher People's court, in December 10, 2010, (2010) the wrong conclusion of the review of Guangdong high punishment Shen Zi No. 197th "rejected the appeal notice" to make! Special appeal to the Supreme People's Court (for trial).

The facts and reasons and requirements are as follows:

▲One, the appeal (to apply for a retrial reason)

Appeal (to apply for a retrial): section Qigui appeal (application for retrial, in conformity with the relevant provisions of the law) and the Supreme People's Court:

(a),Comply with the "Criminal Procedure Law" of the people's Republic of China article 204th (a), article (two), article (three), (four) the provisions of the state.

(two),In accordance with the Supreme People's court. Judicial interpretation (1998) No. 23 "the Supreme People's Court on some problems in the implementation of" Criminal Procedure Law "interpretation" six, incidental civil action, the eighty-ninth article of the cases.

(three),In accordance with the Supreme People's court, Law No. [2002]13 "the Supreme People's court opinions on regulation of filing a case for retrial by the people's Court (for Trial Implementation)" article seventh (a), article (two), article (four), article (eight), the (nine) and article eighth (a) item, article (two), (eight) the provisions of the state.

(four),In accordance with the Supreme People's court, France - [1998]23 "the Supreme People's Court on some problems in the implementation of the explanation" article 176th (three): "the case facts are clear, the evidence is sufficient, and the defendant is not guilty, according to law, shall decide that the defendant is innocent" under any of the circumstances.

The above laws, judicial interpretations attached.

▲ two, appeal (to apply for a retrial request items)

(a),If the Supreme People's court, according to the procedure for trial supervision, certiorari arraignment (retrial), revoke the Guangdong Provincial Higher People's court, without the public security organs in accordance with the investigation ended, nor by the procuratorial organs prosecution, illegal made "section Qigui commits embezzlement, sentenced to 14 years in prison" the wrong decision! And please the judgment shall be amended according to the complainant, declare: (Petitioner) segment Qigui innocence.

(two),If the Supreme People's court, according to the procedure for trial supervision, certiorari arraignment (retrial), revoke the Guangdong Provincial Higher People's court, without the right to file an incidental civil action in accordance with the law to file an incidental civil action case, the civil rights disputes, make illegal set and the error decision!

Namely: illegal to: "continue to pursue the defendant Duan Qi GUI has not quit bribes 44030688690000 yuan, return to (the equity transferor) Yinhua Macao investment and Development Co. Ltd." wrong decision. Please according to the decree Yinhua Macao investment and Development Co. Ltd. the return of property, compensation for all losses.

(three),If the Supreme People's court, according to the procedure for trial supervision, certiorari arraignment (retrial), revoke the Guangdong Provincial Higher People's court, December 10, 2010, (2010) the wrong conclusion of the review of Guangdong high punishment Shen Zi No. 197th "rejected the appeal notice" to make.

(four),Please revoked on attachment, seizure, and the lifting of the attachment, seizure, ordered the return of property, compensation for all losses.

▲Three, the application of fact and reason and evidence, the legal basis for retrial

(a) a new original documentary evidence, evidence and the relevant laws, regulations, judicial interpretation as the basis, to prove: the court of second instance (2003Guangdong high punishment two) with the word no.385No. "criminal judgments", a serious violation of the statutory "functional jurisdiction", without the public security organs in accordance with the investigation ended; without the approval of the people's Procuratorate of "embezzlement" in accordance with the law to prosecute; the civil part, without the right to file an incidental civil action in accordance with the law to file an incidental civil action case; the second instance the court hearing the case is not in accordance with the law; no plaintiffs of the supplementary civil action with the request, no collateral civil proceedings the defendant and counterclaim; unlawful deprivation of civil rights in the main section of Qi Guangxi personal freedom and other related litigation rights case, the court of second instance and the judges make the cognizance of illegal secret password: "section Qigui commits embezzlement, corruption (the equity transferor) of private enterprises in Macao investment and Development Co. Ltd. RMB Yinhua4403068869Million yuan (including: lack of RMB1202427Million yuan, fiction should profit of 32006418690000 yuanWrong judgment)!" This decision, inconsistent with the facts, contradiction! This decision, not based on facts, no legal basis, the facts and judgment, there is a serious error.

New original documentary evidence, evidence and the relevant laws, regulations, judicial interpretations on the basis of the following:

(1),In November 9, 1989, the equity transferor (or party): in Macao registered private enterprise name "Yinhua Macao Investment Development Company Limited", legal representative, chairman Liu Gui dilute. Registration number: S04018, 3 copies of original documents.

(2),In December 19, 1994, equity transferee (falsely accused person) section Qigui: in Macao registered private enterprise name: "Macao Tai Chi International Investment and Development Co., Ltd.", legal representative, chairman Duan Qigui. Registration number: S09762, 2 copies of original documents.

(3),The return of Hongkong to the motherland date: December 20, 1999. (as everyone knows the fact).

(4),In September 22, 1994, the transferor shall: Yinhua Macao investment and Development Co. Ltd., made due to the inability of the real estate business, Australia: silver paper (94) No. eighteenth "about the exit ramp Lu base and Shanghai Huaxing Real Estate Company report", a solemn statement and requirements: from the original three shareholder joint venture established "Shanghai Huaxing Real Estate Investment Co. company 95% of the shares," exit "in Shanghai City, Xujiahui road 60 plots of land development and real estate projects.

Therefore, the transfer of equity method representative is Liu Guixi, repeatedly to the legal representative Duan Qigui issued the "offer", expressing willingness will be above 95% shares transferred to Duan Qigui. After numerous consultations, both sides reached a "verbal agreement", Duan Qigui pay a deposit 3000000 yuan, the two sides signed the "equity transfer agreement".

Attached: "September 22, 1994, Macao silver paper (94) No. eighteenth" report "1".

(5),In January 4, 1995, equity transfer legal representative Duan Qigui, to pay the equity transfer legal representative Liu Guixi designated bank account of 3000000 yuan. Receiving, payment voucher, 5 copies of original documents.

(6),In January 6, 1995, the transferor shall: Yinhua Macao investment and Development Co. Ltd. and its legal representative Liu GUI dilute, invited the equity transferee: Macao Tai Qi International Investment and Development Co. Ltd. and its legal representative is Duan Qigui, in the Liu Guixi Office (Zhongshan city Overseas Chinese Building, Liu Gui Lean Office), both sides agreed, signed the equity transfer contract, namely: "agreement" in January 6, 1995 1.

(7),In July 28, 1995, equity transferee segment Qigui perform "agreement" in January 6, 1995, Liu Gui again according to dilute the specified account, to pay the equity transfer payments 8000000 yuan, vouchers, 3 copies of original documents.

(8),In September 26, 1995, a joint venture enterprise newly established: legal representative of Shanghai Tai Chi real estate company, big shareholders (holding 95%) Liu Qigui, presided over the construction project "Shanghai Tai Qifeng building" ceremony! 3 copies of original scene.

(9),Shanghai Tai Chi Real Estate Co., Ltd., the major shareholder Duan Qigui (holding 95%) and shareholder of Shanghai Luwan District construction development company Pan Xiaofeng legal representative, Gu Yiran, mutual recognition and cooperation, have meal, picture 1.

(10),Duan Qigui personally to the "Shanghai Tai Qifeng building project" command of the construction site. 2.

(11),Since January 4, 1995, until August 8, 1997, Duan Qigui to the Shanghai Tai Chi Real Estate Co. Ltd and its "Shanghai Tai Qifeng building project" total investment to pay the equity transfer of gold, land use fees, the relocation costs, construction costs, the total amounting to 328000000 yuan, of which: section Qigui "Tai Qi group" and its subordinate enterprises investment of more than 140000000 yuan of funds, listing 1,

(12),Since September 26, 1995, "Shanghai Tai Qifeng building" project commencement ceremony date, until August 8, 1997, the period of Qigui efforts and self financing, and built a "Shanghai Tai Qifeng building", a live picture 1.

(13),The transferee Qigui section, has been to the equity transferor Yinhua Macao Investment Development Company Limited equity transfer RMB total: 16000000 yuan payment. Still owed $4000000 yuan, 2218500 yuan, HK $430000 (above three total: RMB 22000000), a negotiation documents and share transfer party claims and admit documents, a total of 4, namely: "meeting minutes" in September 17, 1997 1; written "file" Qigui transferee section 1 to in February 25, 1998 March 20, 1999, the equity transferor; written "files" section of the transferee Qigui 1 copies to the equity transferor; in March 27, 1999, the transferor shall issue written "file" Qigui transferee section 1.

(14),In August 8, 1997, asset replacement Objective: section Qigui as Shanghai Taiqi Real Estate Co., the major shareholder of the company (holding 95%) and legal representative, for the construction of the project "Shanghai Tai Qifeng building" project, investment 328000000 yuan of funds, in addition to 140000000 yuan is a private enterprise group of funds, there are foreign debt. In order to pay off the debt, to make the replacement of assets, back post also debt, no illegal possession of the property of motive and purpose, is "August 8, 1997 agreement" content. "The August 8, 1997 agreement", Party A: Hongkong super Li Investment Co. Ltd., the legal representative Wang Zhiwei signature and company stamp. Party B: Shanghai Taiqi Real Estate Co., Ltd., the legal representative Duan Qigui signature and company stamp. The legal representative is a signatory on behalf of an enterprise as a legal person to exercise the right, legal and effective.

"The August 8, 1997 agreement" clearly documented: pay shareholders of Shanghai Luwan District construction company 5% of the shares, 15100000 yuan. Payment owed Yinhua Macao investment and Development Co., Ltd. 20000000 yuan. (see: "the August 8, 1997 agreement" attached).

(15),In December 11, 1997, the Hongkong super Li Investment Co. Ltd. and its legal representative Wang Zhiwei issued a "guarantee the repayment period of Qigui owed ninety million yuan guarantee" and the guarantor Guangdong Development Bank issued the "guarantee contract", 1. In 1999 December 10 Japan agreed: interest paid. However, are still under section Qigui this section!

(16),In May 8, 1999, the people's Procuratorate of Zhongshan City, Guangdong Province, illegal and ultra vires, breach of privilege, help Yinhua Macao investment and Development Co. Ltd., dun dun, illegal for the principal plus storm amounts to about 73000000 yuan, to blackmail and impose exactions on purpose, the debtor to Duan Qigui as the "quality", illegal seizure in the designated "Zhongshan Fu Hua Hotel", illegal detention for 83 days, and any unlawful detention, arrest, prosecution to the Zhongshan City Intermediate People's court, "Qigui fiction section of the crime of embezzlement, corruption 44030688690000 yuan" in the name, the court of First Instance sentenced to death 2 times! Is the court of second instance Guangdong Provincial Higher People's court. Proof: a Qigui innocence! Attempted murder for money.

See: the court of second instance in August 28, 2002 (2001), Guangdong high punishment by the end of the word no. 175th "criminal ruling" and May 27, 2005, (2003) a copy of the Guangdong high punishment two final No. 385th "criminal judgment".

(17),According to "the people's Republic of China enterprise legal person registration management regulations" Eleventh; "Regulations of the people's Republic of China Administration of registration of enterprise" rules for the implementation of the twenty-seventh National Committee of the economic system reform; "Limited by Share Ltd" standard opinion on fifty-ninth, sixtieth: "the chairman is the legal representative of an enterprise as a legal person, shall exercise its functions and powers on behalf of the enterprise legal person's signature people" and other regulations, enough to prove that: "the January 6, 1995 agreement" and "agreement" in August 8, 1997, in accordance with the law, the legal establishment, protected by law. (laws, regulations attached)

(18),According to the "January 6, 1995 agreement" and "the people's Republic of China on the basis of general principles of civil law" article seventy-second, article seventy-first, article Seventy-eighth paragraph three; "the people's Republic of China criminal law," article ninety-second (four); in August 19, 1990, "Regulations" on the encouragement of overseas Chinese and Hongkong Macao investment seventh, eighth etc. provisions, section Qigui and private enterprises in Macao, enjoy 95% equity and equity in Shanghai Taiqi Real Estate Co. Ltd and its "Shanghai Tai Qifeng building". And, have the right to his own share or transfer to others. (laws, regulations attached)

(19),According to the "agreement", "January 6, 1995 August 8, 1997 agreement" and the laws and regulations, and according to the "PRC Criminal Law" Twelfth article; the Supreme People's court, the Supreme People's Procuratorate (85) high will (Research) No. 3 of fourth (two); the Supreme People's court and Law (the) the [1987]28 number "on the trial of the Hong Kong and Macao economic dispute cases a number of unanswered questions" the first paragraph (a) of first Mu and the Supreme People's court and Law (the hair) (1989) No. 12 "national coastal foreign, Hong Kong and Macao economic trial work summary of the Symposium on" (five) the relevant provisions of the applicable law, problem: "enough to prove that the January 6, 1995 agreement" in August 8, 1997 and "agreement", the nature of the dispute between the parties, is "Hong Kong and Macao economic dispute cases", applicable law, general principles of civil law to apply, the relevant provisions of the civil procedure law, foreign-related economic laws and regulations.

(laws, regulations, judicial interpretations attached).

(20),In October 19, 1987, the Supreme People's court and Law (the answer) [1987]28 "on Several Issues concerning the trial of the Hong Kong and Macao economic dispute cases"

(sectionProceedings)

A range of issues, about the case

(a), the people's court cases, those with one of the following circumstances, belonging to the Hong Kong and Macao economic dispute cases:

1, one party or both parties is the Hong Kong and Macao compatriots or registered in Hongkong, Macao region of the enterprises or other economic organizations;

2, economic disputes of the subject matter in the Hongkong, Macao area;

3, economic relations, change or destroy in the Hongkong, Macao area.

(21),The Supreme People's court and Law (the hair) (1989) No. 12

"National coastal foreign, Hong Kong and Macao economy of trial work forum"

(five) the applicable law.

The Supreme People's court clearly stipulates: hearing a foreign, Hong Kong and Macao economic dispute cases, must be in accordance with the provisions of the general principles of the civil law, civil procedure law and foreign economic contract law, correctly solve the problems of application of law.

(22),In this case, the procuratorial, judicial organ, in violation of the statutory functions of jurisdiction, breach of privilege, be forgetful of one's duties, making the miscarriages of justice!!!

▲ theAccording to the criminal procedure law, "" the people's Republic of China in eighteenth and January 19, 1998 the Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security, the Ministry of state security, the Ministry of justice, Law Committee of the NPC Standing Committee issued "several issues concerning the implementation of the criminal procedure law provisions," in a jurisdiction, the relevant provisions of article first, article sixth the crime of corruption and bribery, by: People's Procuratorate investigation. The criminal case years (including "embezzlement" case) the investigation conducted by the public security organs.

According to the division of the Ministry of public security criminal cases under the jurisdiction of "Regulations"

Rule seventy-second: "criminal law" the fifth chapter 271st special provisions of the first paragraph of "of duty embezzlement case", by the public security organ for investigation.

According to the provisions of the statutory jurisdiction and according to the higher people's Court of second instance court of Guangdong Province were 2, the revocation of a trial court of Zhongshan City Intermediate People's court "section Qigui committing the crime of corruption, sentenced to death 2 times" judgment! Enough to prove that: "Qigui charges and that section of the crime of embezzlement" section, especially serious error! "Not true crime of corruption", section Qigui innocence. Therefore, to prove: the people's Procuratorate of Zhongshan city and Zhongshan City Intermediate People's court, accused the party to help Macao Yinhua investment and Development Co. Ltd., dun dun, murder for money behavior, serious violations of law, tort! The facts and judgment, is particularly serious error, has constituted illegal ultra vires, breach of privilege, be forgetful of one's duties, malfeasance!

It is enough to prove that: the court of second instance, knowing that the period of Qigui does not constitute a "corruption", is innocent, but deliberately violate the Supreme People's court, judicial interpretation (1998) No. 23 "on some problems in the implementation of the explanation" article 176th (three), (four) regulation, "should be the judgment shall be amended according to some Qigui innocence and declared:", but not as! And not only so, but also violate the legal authority under the jurisdiction, without the public security organs in accordance with the investigation ended, also without the approval of the people's Procuratorate prosecution case, illegal identification and make: "section Qigui committed embezzlement sentenced to 14 years in prison, continue to pursue (fictional) corruption 44030688690000 Yuan" the wrong decision! Constituted illegal jurisdiction, breach of privilege, illegal conviction and perverting the law behavior.

▲ second,The second instance court and judges, law, justice, but deliberately illegal! The higher people's court that the Institute of Guangdong Province in August 28, 2002, made (2001) by the end of the Guangdong high punishment by Law No. 175th "criminal Award" and in May 27, 2005 made (2003), Guangdong high punishment two final No. 385th "criminal judgments", 2 times to withdraw the first instance court made the so-called "illegal section Qigui committing the crime of corruption, sentenced to death 2 times" the referee, and has taken legal effect! But deliberately violated the law the Supreme People's court release [1998]23 "the Supreme People's Court on some problems in the implementation of the explanation" article eighty-eighth, the provisions of article eighty-ninth, the "civil", without the right to file an incidental civil action in accordance with the law to file an incidental civil action in the case before the first trial. Sue; in the absence of attached civil plaintiff and incidental civil pleadings and not with the defendants in civil and incidental civil pleading the case according to law; in the absence of the trial case, illegal identification and make "section of Qi Guitan. (the equity transferor, false accusations) Yinhua Macao investment and Development Co., Ltd. 44030688690000 yuan (and claim: should be paid in capital of 12024270000 yuan, profit of 32006418690000 yuan of illegal blackmail and impose exactions on storm)" wrong decision!

To sum up the facts and reasons and provide the new original documentary evidence, evidence and the relevant laws, regulations, judicial interpretations, enough to prove that: the second instance court cognizance and make the so-called "section Qigui commits embezzlement, corruption 44030688690000 yuan" judgment, and the fact the truth does not match, against! Not based on fact, no legal basis, is particularly serious mistake.

Therefore, the Supreme People's Court of the people's Republic of China on please, the procedure for trial supervision, certiorari arraignment (retrial), cancel the wrong judgment, the judgment shall be amended according to the court of the second instance, declared: the complainant (Petitioner) segment Qigui innocence! And please the Supreme People's court, in accordance with the decree Yinhua Macao investment and Development Co. Ltd. the return of property, compensation for all losses.

(two) the court of second instance: Guangdong Provincial Higher People's court,2005Years5Month27Day, (2003Guangdong high punishment two) with the word no.385No. "criminal judgments", article1Page first, finds that: "Duan Qigui is a state-owned enterprises in Guangdong Province, Zhongshan CTS Group Chairman, general manager of Tai Qi" Shanghai real estate limited section, inconsistent with the facts, contradiction! Not based on fact, no legal basis, there is a serious error!

As everyone knows, correct identification of the identity of the parties and subject qualification, is an important part and key to correctly handle the case.The court of second instance, that Duan Qigui's identity and subject qualification, there is a serious error, completely mistaken!

[The facts and evidence]

(1) according to the trial court "criminal judgments" page second confirmed: in July 14, 1992, 5% in Shanghai, Luwan District municipal construction investment company ($110925 yuan), Macao Shengxing Architectural Engineering Limited company is contributive 5% ($110925), the private enterprises in Macao Yinhua investment development limited company is contributive 90% ($1996650), the three party shareholders invest $total: 2218500 yuan, the purchase of the Shanghai City, Luwan District No. 60 Xujiahui Road neighborhood (Mao Di) the right to use the land, no other property. The three shareholders, in December 13, 1992, registered in Shanghai, a joint venture corporation: Shanghai Huaxing Real Estate Investment Development Co., ltd.. Proof: Shanghai Huaxing Real Estate Investment Development Co., Ltd., and China Travel Service Group Company of state-owned enterprises in Zhongshan City Guangdong Province, no affiliation.

(2) according to the new original documentary evidence, evidence, the equity transferor (Jia Fang): Yinhua Macao investment and Development Co. Ltd. and its legal representative Liu Gui lean, in January 6, 1995 and the equity transferee (b): Macao Tai Qi International Investment and Development Co. Ltd. and its equity legal representative section Qigui signed the transfer contract, namely: "agreement" in January 6, 1995 and October 27, 1995 the equity transferor Australia Yinhua Investment Development Co., Ltd., issued to the equity transferee segment Qigui "for the equity transfer procedures document" evidence, enough to prove that: since January 6, 1995, Liu Guixi and Macao Yinhua investment and development Co. Ltd. in the original "Shanghai Huaxing Real Estate Development Company Limited has 95% (the original after 90%, increased by 5%, total 95%) shares, has been transfer to segment Qigui and Macao Tai Qi International Investment Development Limited company all." After January 6, 1995, large shareholders segment Qigui holding 95%, and served as chairman, general manager, legal representative office.

After January 6, 1995, corporate restructuring, joint venture corporation new name: "Shanghai Tai Chi Real Estate Co. Ltd", large shareholders and some Qigui Yinhua Macao investment and Development Co., Ltd. holding 95%, the other shareholders of Shanghai Luwan District municipal construction company (later: Luwan District Shanghai City Construction Development Corp.) holding 5%. Duan Qigui served as chairman of the board and general manager, legal representative. Proof: with the CTS group company of state-owned enterprises in Zhongshan City, Guangdong Province, no affiliation.

(3) as everyone knows, Macao came back to China in December 20, 1999. According to the issued by the relevant department of the government of the Macao Special Administrative Region "business registration documents written report" show: in December 19, 1994, a Qigui registered in Macao, the establishment of private enterprise, name: Macao terchy international investment and Development Co. Ltd., chairman, legal representative office. Registration number: S09762.

Proof: with the CTS group company of state-owned enterprises in Zhongshan City, Guangdong Province, no affiliation.

(4) according to the August 8, 1997 asset replacement contract, namely "August 8, 1997 agreement", section Qigui is B: legal representative of Shanghai Tai Chi real estate limited person (signature). Party A: Hongkong super Li Investment Co. Ltd., the legal representative Wang Zhiwei (signature). To prove, and China Travel Service Group Company of state-owned enterprises in Zhongshan City Guangdong Province, no affiliation.

(5) according to the "general rule of the civil law" article thirty-sixth and rule forty-third, "an enterprise as a legal person is independently enjoy civil rights and civil obligations of the organization." Proof: corporate "Shanghai Tai Qi Real Estate Co. Ltd" and its chairman (legal representative), general manager of Duan Qigui, and the travel group company of state-owned enterprises of Zhongshan City Guangdong Province, no affiliation.

(6) according to "the people's Republic of China enterprise legal person registration management regulations" Eleventh; "the people's Republic of China enterprise legal person registration management rules" in twenty-seventh and May 15, 1992 National Economic System Reform Commission issued the "opinions" Limited by Share Ltd specification fifty-ninth, sixtieth and other relevant provisions, Macao Tai Chi International Investment Development Co. the chairman of the company (legal representative) and chairman of Shanghai Tai Chi Real Estate Co. Ltd. (legal representative), general manager Duan Qigui, have the right to exercise its powers on behalf of the enterprise legal person, the chairman of the board is the legal representative of enterprise, chairman of enterprises with foreign investment is the legal representative, the legal representative (Chairman) is a signatory shall exercise its functions and powers representative of an enterprise as a legal person. Proof: a Qigui and company, and China Travel Service Group Company of state-owned enterprises in Zhongshan City Guangdong Province, no affiliation.

According to the facts and reasons, enough to prove that: "the court of the second instance verdict", that "section Qigui is state-owned enterprise Guangdong CTS Group Chairman, general manager of Tai Qi" Shanghai real estate limited section, the facts and judgment, there is a serious error.

(three) the higher people's Court of second instance court, Guangdong province,2005Years5Month27Day (2003Guangdong high punishment two) with the word no.385No. "criminal judgments", that the nature of the case and the case: "section Qigui commits embezzlement, sentenced to fourteen years in prison, continue to pursue corruption RMB4403068869Million "section, inconsistent with the facts, contradiction! Not based on fact, no legal basis, there is a serious error!

As everyone knows, is a concentrated expression of the nature of the case by case, established is an important part and key to correctly handle the case.

The complainant (Petitioner): Duan Qigui, according to the above provide new original documentary evidence, evidence, the equity transferor and the transferee to sign the "January 6, 1995 agreement"; transfer of shares issued to the transferee Qigui "section October 27, 1995 for conversion procedures document"; equity transferee segment Qigui, pay the equity transfer of gold 16000000 yuan voucher and not part of the equity transfer payments 4000000 yuan, 2218500 US dollars, HK $430000 (RMB 22000000 yuan), the parties to this agreement issued "September 17, 1997 meeting minutes"; the equity transferor Yinhua Macao investment and Development Co. Ltd., is issued to the transferee of the period of Qigui "March 20, 1999", "file in March 27, 1999 the file" and in August 8, 1997 "asset replacement agreement" clearly documented: payment owed Bank of Macao Hua investment development limited evidence of RMB 20000000 yuan, according to the Supreme People's court and Law (by) [1987]28 "on Several Issues concerning the trial of the Hong Kong and Macao economic disputes solution" and the Supreme People's Court (of law the No. [1989]12) "national coastal areas, involving foreign Hong Kong and Macao trial work summary of the Symposium on "and other relevant laws, regulations, judicial interpretation of the relevant provisions, enough to prove that: the nature of the case and the case of" Hong Kong and Macao economic dispute cases ". (see: the evidence and legal documents attached).

Therefore, to prove: the court of second instance identification and judgment of the case of "the nature of the case and the case is serious error,".

(four) the court of second instance, the385No. "criminal judgments" that: "Macao Yinhua investment and Development Co. Ltd., Shanghai Taiqi Real Estate Co. Ltd.95%Company and the rights and interests of RMB4403068869Million "section, inconsistent with the facts, contradiction! Not based on fact, no legal basis, there is a serious error!

According to the new original documentary evidence, evidence, the equity transferor and the transferee to sign the "January 6, 1995 agreement"; transfer of shares issued to Duan Qigui's "October 27, 1995 for equity swap file"; the equity transferor Yinhua Macao investment and Development Co. Ltd. acknowledges that it has received Duan Qigui to pay the equity transfer gold 16000000 yuan voucher and issued to Duan Qigui's "September 17, 1997 meeting minutes", "February 25, 1998", "March 23, 1999 file file", "March 27, 1999" and other documents evidence,EnoughProve.

(1) before January 5, 1995, private enterprises in Macao investment and Development Co. Ltd. and chairman of UBS, the legal representative Liu Guixi, has "Shanghai Huaxing Real Estate Investment Development Co., Ltd. 95% shares" (value: $2218500 x 95%=210.7575 yuan), was RMB: 12024270 yuan x 95%=1142.30565 yuan. However, in January 6, 1995, according to the two sides signed the "agreement" in January 6, 1995, transfer, transfer to the assignee segment Qigui and private enterprises in Macao Tai Qi International Investment Development Company limited. (see: "the January 6, 1995 agreement").

(2) Duan Qigui in January 6, 1995, according to the "agreement", has been paid to the transfer of Liu Guixi and the Macao private enterprises transfer of shares of 16000000 yuan, a beneficiary certificate issued by the "March 20, 1999", the above documents and relevant evidence and confirmed that.

(3) according to the above relevant evidence to prove: the corporate segment Qigui in January 6, 1995 after the new established name: Shanghai Taiqi Real Estate Co. Ltd, is the major shareholder of Duan Qigui and the private enterprise "Macao Tai Chi International Investment and Development Co., Ltd.", holding 95%. The other shareholder is the Shanghai Luwan District construction development company, the legal representative is Pan Xiaofeng, Gu Yiran, holding 5%, this is the truth.

(4) in September 26, 1995, Duan Qigui presided over the construction project "Shanghai Tai Qifeng building" ceremony! After Duan Qigui efforts and self financing 328000000 yuan, basically completed in August 8, 1997 of the "Shanghai Tai Qi building" source of investment, not Liu Guixi and private enterprises Macao Yinhua investment development limited invested a penny, a labor! On the contrary, it has received the equity transferee segment Qigui pay equity transfer payments 16000000 yuan, irrefutable evidence! Proof: the court of second instance the facts, there is a serious error.

(5) according to the "general rule of the civil law" article fifty-seventh, article seventy-second, article seventy-first, article Seventy-eighth paragraph three; "the people's Republic of China Contract Law" article thirty-second, article 130th, article 132nd, article 133rd; "the people's Republic of China criminal law," article ninety-second (four) and the "Regulations" of the State Council on Encouraging Overseas Chinese and Hongkong Macao investment seventh and other relevant provisions, enough to prove that: "since the January 6, 1995 agreement" both parties sign, seal up, stock right transfer contract, the subject matter of "95% shares", has been transferred to the company Macao terchy international investment development Duan Qigui and private enterprises all. Therefore, some Qigui and private ownership, right of possession, use, income right, disposition right to 95% of the shares, and has borne and paid construction "Shanghai Tai Qifeng building" construction fund 95% obligations.

According to the facts and reasons, enough to prove that: the court of second instance finds that: "Macao Yinhua investment development limited company has Shanghai Taiqi Real Estate Co. Ltd. 95% shares and equity 44030688.69 yuan" section, is not based on facts, no legal basis, is the palpable lies deceive oneself and others, don't set up! The court of second instance, the facts, is particularly serious error.

In view of the above-mentioned facts and reasons, enough to prove that: the actual investor Duan Qigui and Macao Tai Qi International Investment and Development Co. Ltd., according to the "agreement" in January 6, 1995, with Shanghai Taiqi Real Estate Co. Ltd and its "Tai Qifeng building" 95% shares 95% shares, and enjoy the right and interests, have done 95% obligations. This is the facts, irrefutable evidence.

(five) the court of second instance,2005Years5Month27Day (2003Guangdong high punishment two) with the word no.385No. "criminal judgments", applicable law, there is a serious error!

(the facts and reasons)

The first,The court of second instance, May 27, 2005 No. 385th "criminal judgment" and the second instance court, August 28, 2002 (2001) Guangdong high punishment through 175th "criminal verdict", respectively the 2 judge finds that: "the court of first instance ruling 2 Qigui section of the crime of embezzlement, 2 sentenced to death" is wrong! And in accordance with the law, have 2 revocation of the court of first instance 2 times to "section Qigui committing the crime of corruption, sentenced to death 2 times" the wrong decision. Proof: charges and conviction segment Qigui committed "corruption" is not established, some Qigui innocence. Therefore, should be in accordance with the law and according to law the Supreme People's court release [1998]23 "the Supreme People's Court on some problems in the implementation of the interpretation" of article 176th (three) or (four) the provisions made to section, and declared: Qigui innocence.

However, the court of second instance is in violation of the functions of the court of jurisdiction, breach of privilege, be forgetful of one's duties, illegal commuted to imaginary so-called: "section Qigui commits embezzlement, sentenced to 14 years in prison, pursue corruption 44030688690000 yuan" the wrong decision!

Therefore, to prove: the trial court and the judges, applicable law, there is a serious error!

Second,As everyone knows, "embezzlement", legal function jurisdiction of public security organs, the public security organs have the right to file for investigation.

According to the "Criminal Procedure Law" provisions of the first paragraph of the people's Republic of China eighteenth, criminal cases "embezzlement" case investigation conducted by the public security organs in accordance with the law. According to the January 19, 1998 the Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security, the Ministry of state security, the Ministry of justice, the NPC Standing Committee issued "on the implementation of the criminal procedure law in the provisions of a number of issues", a jurisdiction, first in the paper: "does not conform to the provisions of any file" Criminal Procedure Law on the jurisdiction the provisions of the division of allInvalid. Article sixth also clearly stipulates: "the people's Procuratorate investigation of embezzlement and bribery cases involving the jurisdiction of the public security organ in criminal cases, shall belong to the jurisdiction of the public security organs in the criminal case to the public security organs". The Ministry of public security according to the provisions under the jurisdiction of the public security organ, issued the "Regulations" stipulates criminal division: "criminal law" the fifth chapter of specific crimes of property violation "of duty embezzlement (section first criminal law, 271st)", owned by the jurisdiction of the public security organ of economic crime investigation department (a total of 76 species, seventy-second kinds of "embezzlement").

Proof: the trial court and the judges, law, justice, but deliberately illegal! A serious breach of statutory functions of jurisdiction, indeed illegal ultra vires jurisdiction, applicable law be forgetful of one's duties, breach of privilege, a serious error! Effects of justice on the ruling! The court of second instance, in violation of the statutory procedures to "embezzlement" behavior, enough to prove that: the court of second instance verdict, applicable law, there is a serious error.

The court of second instance, without the public security organs in accordance with the investigation ended; also without the approval of the people's procuratorate according to law "embezzlement" initiate public litigation case, make the so-called: "section Qigui commits embezzlement, corruption recovered 44030688690000 yuan, return to private enterprises in Macao Yinhua Investment Development Limited" decision, apply law is a serious error, especially!

Third, as everyone knows, in criminal cases, "civil", is "incidental civil litigation procedure". The court of second instance, 2 in accordance with the law and the referee proof: accused the prosecution and the court of First Instance judgement "section of the crime of embezzlement Qigui" untenable!

As everyone knows, "corruption" is not established, enough to prove that: "corruption 44030688690000 yuan" is also not exist!This truth, a few years old children, pupils are known to everyone.However, the second instance court and judges, but the law, judicial sentencing according to law, not deliberately violated the law, the Supreme People's court release (1998) No. 23 "the Supreme People's Court on some problems in the implementation of the explanation" six, incidental civil action, 100th, eighty-eighth and eighty-ninth regulations: "incidental civil action shall be filed in the future of criminal cases of first instance declared previously mentioned. Have the right to file an incidental civil action in the first instance by the people before the announcement did not mention, not to mention the provisions supplementary civil action ". However, the second instance court and judges, but deliberately violates the provisions of the private enterprises in Macao, the parties "equity transfer of economic dispute cases" civil rights disputes, illegal and ultra vires deal! In "the crime of corruption and the corruption money 44030688690000 yuan" the absence; no plaintiff of the supplementary civil action, the defendant, no clear no specific requirements, there is no specific facts, not with the civil petition cases; in the absence of definite defendant and counterclaim cases; in failing to the trial, illegal Deprivation of litigation proof, debate, litigation rights, the court of second instance and judges the fictional facts on the "civil", illegal to make so-called: "continue to pursue the defendant Duan Qi GUI is not out of the corruption money 44030688690000 yuan, return to the (private enterprise, the transferor shall) Macao Yinhua Investment Development Limited" wrong decision!

According to the facts and reasons, enough to prove that: the second instance court No. 385th "criminal judgments", applicable law, is particularly serious error!

Therefore, request the Supreme People's court, the court of second instance wrong judgment is revoked, shall be amended according to the law, and declared: the plaintiff Duan Qigui is innocent.

Six.

Seven.

Eight.

 

 

[Deng]

 

The complainant (criminal and civil retrial applicant): Duan Qigui.

Scrivener and collecting information: Ma Wentao, male, 77 years old.

Duan Qigui private legal adviser.

Date: March 20, 2012