Loaning restricted to registered companies and divestiture of how qualitative


Published on.

2013-12-19

Case : Left To register a Huisheng Coal Limited , registered capital of 500 million needed , but no funds for the verification of their registration . After Hanson legal representative of the Financia

Case : Left To register a Huisheng Coal Limited , registered capital of 500 million needed , but no funds for the verification of their registration . After Hanson legal representative of the Financial Advisory Co., Hwang know , and left a convention, by the constant Xindagongsi responsible for Loaning 500 million, industrial and commercial registration, Loaning interest at 1.5% per day basis . February 23, 2011 , Hwang and Commercial Manager Heng Wang will make the company $ 5 million into the Xindagongsi Loaning be established Huisheng Coal Limited established capital verification account verification end of the day , and the 5 million yuan and interest to Hwang personal account . Huisheng Coal Limited on February 24, 2011 successfully registered .

Disagreement : a left and Hwang , Wang, there are different views constitute the crime of capital flight .

The first one view, a left and Hwang , Wang did not constitute the crime of capital flight . Implementation of the Companies Act 2006 the company set up in January significantly reduced the threshold is to be able to successfully enter the private capital market , promote economic development and the expansion of employment , the current behavior of the species is more common , not as a crime .

The second opinion , constitute capital flight left a crime , Hwang , Wang does not constitute a crime. Penal Code section 159 provides: "The promoters of the Company , shareholders in violation of the provisions of the Act did not deliver cash or kind or transfer property rights , false investment , or the company set up after withdrawing their capital , and the consequences are serious, or if there are other serious circumstances the ...... "From the look of the provisions of the law clearly stipulates the main crime crime capital flight can only be special subject, namely promoters or shareholders , legal representatives of other institutions do not meet the main elements of the crime of capital flight , do not constitute a crime.

A third opinion , Hwang , Wang left a flight of capital contribution constitutes the crime of complicity .

Comment : I agree with the third opinion.

First, the behavior of the left constitute a crime of capital flight . From the subject of crime , crime subjective aspect , the object of the crime watch , left a flight of capital contribution in line with the crime of crimes constitute no objection . From the business registration process perspective, the audit department and the registration requirements of the competent authorities for the establishment of the company accounting firm proof of funds , bank payment vouchers and CPA verification report , these are the shareholders have the obligation to fulfill the statutory form of capital . For the use and whereabouts of registered capital , the law explicitly prohibits provisions set , which prohibits arbitrary reduction withdraw the registered capital , the company's aim is to ensure the normal operation , maintenance, other parties such as shareholders or counterparty public interest. After the establishment of the company left a withdrawing its entire registered capital of 5 million yuan , in violation of the law prohibiting sexual , belonging to the company set up after withdrawing their capital , and the consequences are serious , shall constitute the crime of capital flight .

Secondly , Hwang , Wang left a different division of the Department of common crime in the capital flight behavior . Hwang was charged high interest and capital risk prevention , Wang is responsible for the instigation of a company established with the capital flight left throughout the entire operation and transfer of funds, capital flight is a direct perpetrator . Left some , but their behavior is consistent with the purpose of Hwang , Wang capital flight in the entire process , although the division is different from each other with the implementation . Hwang , Wang Loaning registered company, the company set up after capital flight , and capital flight left constitutes a common criminal .

( The writers are Changge People's Procuratorate , the director of the political department )