Anhui Provincial People's Procuratorate

Criminal appeal review decision

WJXSFD [2018] No. 14

The complainant is Anhui * * Materials Co., Ltd., whose legal representative is Mr. Han (now Mr. Zhang), whose address is Room * *, No. * * Road, High tech Zone, Hefei, Anhui Province.

The complainant is * * * United Power Fuel Co., Ltd., and the legal representative is Mr. Wang, whose address is No. * * Road * *, High tech Development Zone, Hefei, Anhui Province.

The non indicted person, Mr. Lu, was born in Jiangyin City, Jiangsu Province on * * * *, 1984, with ID card number of 3202191984 **************, a Han nationality, college culture, and an employee of the former Jiangyin * * Co., Ltd., living in Room * * *, * * Huadu * * Building, Jiangyin City, Jiangsu Province (domicile: Room * *, No. * *, Jiangyin City, Jiangsu Province). On July 10, 2017, he was detained by Hefei Public Security Bureau on suspicion of contract fraud. On November 14, the Hefei People's Procuratorate made a decision not to prosecute him after examination.

The plaintiffs Anhui * * Materials Co., Ltd. (hereinafter referred to as * * Materials Company) and * * * United Power Fuel Co., Ltd. (hereinafter referred to as * * * Company), because the criminal suspect Lu Moumou is suspected of contract fraud, refused to accept the Hefei People's Procuratorate's Joint Inspection Criminal Non prosecution (2017) No. 67 decision not to prosecute, and believed that Lu Moumou helped Jiang Moumou, Chen Mou, Zhang Moumou and others cheat, If it constitutes an accomplice in the crime of contract fraud, its criminal responsibility shall be investigated and a complaint shall be filed with the Court.

The court found through recheck that between 2013 and 2014, Jiang Moumou, the actual controller of Jiangyin * * Electric Fuel Co., Ltd., owed a huge amount of money to Chen, the actual controller of Jiangyin * * Co., Ltd. (hereinafter referred to as Jiangyin * * Company) due to coal trade. Chen arranged Lu Moumou and others to demand the debt from Jiang Moumou, but Jiang was unable to repay the debt, so the demand was fruitless. On April 29, 2014, Jiang contracted the Ministry of Energy of Shanghai * * Development (Group) Co., Ltd. (hereinafter referred to as * * Company). In December 2014, Jiang Moumou lied to * * Materials Company that * * Company is a state-owned enterprise under the Ministry of Commerce, and proposed to purchase coal on the platform of * * Materials Company, and then resell the coal to * * Company, and then * * Company will sell the coal to the powerful state-owned enterprise "South Cement Company" to purchase cement for export. The accounting period is 30 working days. Jiang is solely responsible for the upstream and downstream enterprises and funds of the platform. * * Materials Company can obtain a profit of 1.5 to 2 yuan per ton of coal without using funds. Jiang also lied that both * * Company and "Southern Cement Company" are state-owned enterprises, and there is no payment risk. So Yang, general manager of * * Materials Company, and Li, director of Equipment and Materials Department decided to cooperate with Jiang in this mode. On December 23, 2014, Jiang Moumou and others signed a contract with Guangxi Lijun Trade Co., Ltd. in the name of * * Materials Company to purchase a ship of coal from the company. At the same time, Jiang Moumou and others signed a coal sales contract with * * Company in the name of * * Company to transfer the ship's coal cargo rights to * * Company, and then to Jiangyin * * Company. After Mr. Chen arranged Mr. Lu to confirm the arrival of coal at Jiangyin Port, he transferred the coal cargo right to Shenzhen Pegasus International Supply Chain Co., Ltd. for debt repayment.

On January 23, 2015, Mr. Li went to the headquarters of * * Company for an investigation. In response to the investigation, Mr. Chen, Mr. Jiang, Mr. Zhang and others discussed countermeasures and decided that Mr. Zhang would impersonate the deputy general manager of * * Company to receive Mr. Li, and Mr. Lu would participate in the reception. He lied to Mr. Li that * * Development Company was a state-owned enterprise with abundant funds, The coal purchased in the name of * * Materials Company has been sold to "Southern Cement Company" after being transferred by * * Company, concealing the fact that coal has been used to pay off debts, so as to cheat trust. On March 6, 2015, Yang went to the headquarters of * * Company for investigation. Jiang, Chen, Zhang and others cheated Yang again in the same way to gain trust. Lu also participated in the reception and continued to purchase coal from * * Materials Company. Jiang, Chen, Zhang, Lu and others signed contracts with five coal suppliers including Guangxi Lijun Trade Co., Ltd. through the above means, purchasing 456000 tons of coal with a value of about 204 million yuan, and directly transferred the coal cargo rights to Jiangyin * * Company controlled by Chen according to the previous method Jiangyin * * Power Fuel Co., Ltd. and other companies controlled by Jiang are used for debt repayment.

According to the reexamination of the Court, the person who was not prosecuted in the original case, Mr. Lu, as an employee of Mr. Chen's company, followed Mr. Jiang for a long time to settle his debts as required by Mr. Chen, and was responsible for the daily affairs of the Energy Department of * * Company. According to the arrangement of Mr. Chen, Mr. Lu accompanied Mr. Jiang to the * * company to discuss coal business; He participated in the reception of Mr. Jiang, Mr. Zhang and others for Mr. Yang and Mr. Li's investigation. Mr. Zhang and others lied that * * Company was a state-owned enterprise with strong strength and cheated * * Company. Although Lu has participated in the help of others' fraud in the process, the evidence objectively playing the role of fraud is insufficient, and the evidence on record is not enough to prove that Lu has the subjective intention of illegally occupying the property of * * Company and participated in the planning and conspiracy of contract fraud. To sum up, the evidence of Lu's alleged contract fraud is insufficient and does not meet the prosecution conditions, so the Hefei People's Procuratorate's decision not to prosecute (2017) No. 67 was correct. The complainant failed to provide new evidence affecting the facts and nature of the case, and the complainant's reasons for appeal could not be established.

The court decided to uphold the decision of Hefei People's Procuratorate not to prosecute Lu in accordance with the provisions of Item (1) of Article 40 of the Provisions of the People's Procuratorate on Reviewing Criminal Appeal Cases.

December 7, 2018