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Shaanxi High Court retrials a case of occupation, and the decision is served on the parties 6 years later

Original Title: Shaanxi High Court Re-Examines a Case of Occupation of Duty

As a shareholder of a Xi'an company, Cheng Yingwei was sentenced to 15 years in prison for embezzlement in 2008. Upon appeal, the case was ordered by the Supreme Court in 2010 to be re-tried by the High Court of Shaanxi Province. After the Shaanxi Provincial High Court opened its court in 2013 and made a ruling, Cheng Yingwei received the retrial ruling that rejected his appeal six years ago in December 2019. In response to this, Cheng Yingwei, who is serving his sentence, refused to sign and said he would continue to appeal.

The Beijing News reporter learned yesterday (January 8) from the Shaanxi Provincial People's Court that the case was accepted, that the ruling of the case did not arrive until six years ago, but the specific reason was not acceptable to be disclosed.

The ruling issued by the High Court of Shaanxi Province in 2013. Photo courtesy

Legal representative of an enterprise in Xi'an accused of occupation

Cheng Yingwei, born in 1965, was the legal representative of Xi'an Green Home Shopping Plaza Co., Ltd. before the case.

In October 2007, Cheng Yingwei was charged to the Intermediate People's Court of Xi'an for the crime of embezzlement. The prosecution alleges that on April 6, 2001, Soumou and others registered and established Xi'an Green Home Company, and Soumou served as the legal representative. On March 10, 2003, Somou and others transferred the company shares they held to Cheng Yingwei and Chen respectively, of which Cheng Yingwei contributed 8.58 million yuan, accounting for 78% of the company's equity. Thereafter, Cheng Yingwei and Chen Mou wanted to transfer part of the equity, and then in November 2004 signed a "Shareholders' Transfer Capital Agreement" with Shenzhen Youhua Company in Xi'an. Youhua company. After the change, Shenzhen Youhua Company occupied 80% of the equity of Green Home Company.

In 2005, Cheng Yingwei changed the 80% equity of Shenzhen Youhua Company to himself and Chen again, and instructed others to privately engrav the Shenzhen Youhua Company's official seal to complete the equity change. In August 2005, Cheng Yingwei and Xi'an Siyang Technology Co., Ltd. signed the "Shareholders' Transfer of Capital Contribution Agreement", which once again transferred 90% of the equity of Green Home Company at the price of 14.28 million yuan.

During the trial, Cheng Yingwei argued that he did not constitute the crime of embezzlement. He said that in 2004, the 80% equity of Green Home was changed to Shenzhen Youhua Company, which is his personal loan relationship with Yang, the company's general manager, with equity as the pledge. Shenzhen Youhua Company is Yang's designated equity guarantor. The reason why the equity was transferred to others was that Xi'an Municipal Administration for Industry and Commerce was unable to handle the equity pledge registration at that time, and the equity pledge at that time was by transferring equity. In 2005, it was Yang who agreed to change 80% of the shares to himself and Chen.

In January 2008, the court of first instance sentenced that Cheng Yingwei, as a senior manager of a private company, used his position to engraved the official seal of another person, imitated the signature of another person, and illegally transferred the equity to an individual's name. The first trial sentenced him to 15 years in prison. Cheng Yingwei appealed.

In August 2008, the High Court of Shaanxi Province rejected Cheng Yingwei's appeal and upheld the original sentence.

The Supreme Court ordered a retrial, and the lawsuit was withdrawn after being sued for contract fraud during the appeal.

After the final review, Cheng Yingwei continued to appeal. The reason for his complaint is that the existing new evidence is sufficient to prove that the personal loan between him and Yang was pledged by equity. The original judgment held that the evidence of the equity transfer relationship was insufficient and inconsistent with the facts. Objective evidence, civil disputes are judged as criminal cases.

In October 2010, the Supreme Court decided to retry the case. The Supreme Court's order re-examination decision showed that the court considered that Cheng Yingwei's grounds of appeal met the conditions for retrial provided for in the Criminal Procedure Law, and therefore ordered the Shaanxi Provincial High Court to re-examine the case.

During Cheng Yingwei's appeal, the Xi'an Procuratorate filed a public prosecution against Cheng Yingwei for alleged contract fraud in April 2009. The facts involved also involved Cheng Yingwei's equity transfer. One year after the Supreme Court ordered a retrial, in October 2011, the Xi'an Intermediate People's Court ruled that the prosecution's allegations of Cheng Yingwei's contract fraud were inadequate, inappropriate laws were applied, and the prosecution was allowed to withdraw the prosecution. In December 2013, the Xi'an Public Security Bureau made a decision to cancel the case: "Cheng Yingwei handled by our bureau was suspected of contract fraud, because Cheng Yingwei did not constitute a contract fraud crime, according to Article 161 of the Criminal Procedure Law of the People's Republic of China Rule, decided to dismiss the case. "

Voucher delivered to an attorney in 2019. Photo courtesy

Retrial ruling in 2013, served on the parties 6 years later

"After the Supreme Court ordered a retrial, the Shaanxi Provincial High Court has held a court session. We have always thought that the Shaanxi High Court is still processing the case." Cheng Yingwei's cousin, Mr. Zhao, said in an interview that Cheng Yingwei is still serving a sentence in prison. My cousin went out to handle the complaint.

During the period from the beginning of the court in 2013 to 2019, Mr. Zhao repeatedly asked the court about the result of the Cheng Yingwei case. However, the court responded that "the case is complicated and it is not convenient to disclose it at this time." Mr Zhao said that he thought the case was indeed what the court said.

On January 8, 2020, Mr. Zhao told the Beijing News reporter that on December 6, 2019, Shaanxi High Court delivered a retrial ruling to Cheng Yingwei, who served his sentence in prison, ruling that the results of the first and second trials of the case were clear. , The evidence is accurate, the conviction is accurate, the sentencing is appropriate, and the trial process is legal, so Cheng Yingwei's appeal was rejected.

"But this ruling was made on August 26, 2013." Mr. Zhao said that within six years, the ruling was neither served to Cheng Yingwei nor his agent, resulting in Cheng Yingwei being unable to appeal or Cannot continue to appeal, "Cheng Yingwei cannot accept this result, he said in prison that he refused to sign."

Cheng Qingwei's attorney Zhang Qingmao introduced that after the retrial began in 2013, because he has not sentenced, he also submitted relevant evidence to the High Court of Shaanxi Province.

On December 23, 2019, Wang Dingxue, another attorney for Cheng Yingwei, also received the appeal decision made 6 years ago, served by the Shaanxi High Court. Wang Dianxue said that he started to represent the case in April 2019. In his communication with the Shaanxi High Court, he had never heard of a 2013 ruling. He always thought that the Shaanxi High Court was still handling Cheng Yingwei's case.

Lawyer Wang said that at present, he will continue to appeal to the Supreme Court in this case.

Yesterday (January 8), a reporter from the Beijing News contacted Judge Wang Yi, who was in charge of the case in the Shaanxi Provincial High Court. He stated that the ruling of the case did not arrive until six years ago, but the details were not approved Inconvenient to disclose. In addition, regarding what the family said, whether the case was caused by human intervention factors, Judge Wang said that the relevant department is investigating and cannot disclose it until the results are available.

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