Jie TIAN from Hylands Successfully Defends Entrepreneur in Custody for 5 Years and Obtains a Not Guilty Verdict - Criminal Settlement of Civil Disputes is Not the Right Way Forward

I.Basic Facts At the end of 2014, an entrepreneur, Wang, was arrested on suspicion of fraud. In early 2016, Wang was prosecuted for alleged fraud, embezzlement and misappropriation of funds. The prosecution alleged that Wang, in the process of jointly financing the acquisition of a company with Wu, used a fictitious "land premium" to defraud Wu of more than 20 million yuan; used his position to illegally appropriate over RMB 10 million of the company for himself, and granted the company's real estate to others without compensation; misappropriated the company's funds to pay for personal residential renovation for more than three months without return. 

II.Case History Upon receiving the commission, the defense lawyers met with Wang and reviewed the files, and learned that Wang was imprisoned because he was framed by the so-called "victim", i.e. Wu, another shareholder of the company. Through the collection and investigation of information related to the case, the defense lawyers combed out the time line of the development of the case, and initially decided that the case is essentially a civil dispute between Wang and Wu in the process of investment and development of real estate. 

Upon reviewing the case files, defense lawyers identified a large number of problems with the case. For example, the investigation authorities failed to obtain legal evidence, the testimony of the witnesses was not authentic, the audit company hired by the public security authorities was suspected of hiding important information or even falsifying it during the audit process, the audit report was not delivered to the defendant, a number of prosecution witnesses said in court that their testimony was made under the inducement and threat of the "victim" side, etc. To address these issues, defense lawyers leveraged their extensive criminal defense experience to deploy a targeted approach to the three counts charged in this case. 

1.For the charge of fraud accused by the public prosecution authorities because Wang self-reported that the investigators in the interrogation of "torture to force a confession", the defense attorney before the trial, according to the law access to the simultaneous interrogation of video recordings, it was revealed that not only the audio and video recordings were not complete, and the existence of "overtime, fatigue interrogation" and other illegal evidence collection practices. In response, the defense attorney resolutely proposed the "exclusion of illegal evidence" in court, and provided the corresponding evidence and clues, and eventually a number of statements involving "fraud" against Wang were excluded in accordance with the law. Meanwhile, the defense lawyers learned through the family and friends of Wang that a number of witnesses who were clear about the facts of the case had been induced and threatened by the "victim" side, so they applied to the court for the appearance of prosecution witnesses to restore the truth in court. 

2.For the charge of "misappropriation", the defense lawyers carefully verified all the fund flows, payment vouchers and related evidences in the case files from the audit report issued by the auditing authority, and made a new chart of fund flows with the flow of funds as a clue and time as the axis. Upon analysis, it was found that the amount of RMB 10 million had been transferred to the pocket of the daughter of the so-called "victim" Wu, and the defendant Wang did not have the fact of misappropriation. 

3.For the charge of misappropriation of funds by the public prosecution, the defense lawyers have requested the family to carefully organize all the information related to the company's operation, and finally discovered the loan vouchers of Wang to the company involved, Wu and Wu's daughter, as well as the loan "memorandum" signed and confirmed by both parties. This proved that the "misappropriation of funds" alleged by the public prosecution was in fact a "loan" known to the "victim". 

III.Case Results From the case filing to the first trial, the entire case was postponed nearly ten times, and more than a dozen court sessions were held for as long as five years after Wang was detained under the arguments of the defense lawyers, the court of first instance finally accepted all the defense views, and finally acquitted Wang. One year later, the verdict was upheld in the second trial, and Wang was finally granted full freedom and eventually received state compensation. Following the second trial to uphold the verdict of acquittal, Wang presented a banner to Jie TIAN from Hylands to express his gratitude. 

Case Reflections 

In the Notice of the Supreme People's Procuratorate on Giving Full Play to its Functions to Create a Rule of Law Environment to Protect the Lawful Rights and Interests of Entrepreneurs and Support Innovation and Entrepreneurship of Entrepreneurs, it is stipulated that "to strengthen supervision of criminal proceedings, promote fair justice, and protect the lawful rights and interests of the entrepreneurs involved in the cases according to law.  Efforts shall be made to intensify the supervision of economic crime investigation power and other public powers, focus on the supervision of investigative organs to intervene in economic disputes by criminal means, intensify the supervision and correction of problems of unrestrained law enforcement and judicial injustice, such as the filing of cases that should not be filed, the failure to file cases that should be filed and selective law enforcement, and strictly prevent the handling of civil disputes as criminal cases.” It is also stipulated in the Opinions of the Supreme People's Procuratorate and the Ministry of Public Security on Improving and Perfecting the Mechanism of Investigation Supervision and Collaboration and Cooperation, "The people's procuratorate shall proceed with the supervision of filing and investigation activities in accordance with the law, timely identify and correct illegal situations where cases should be filed but not filed, should not be filed but filed, long-term 'hanging cases' and intervention in economic disputes by criminal means, etc. Efforts shall also be made to promptly identify and correct illegal acts of investigation, such as extorting confessions through torture, illegal evidence collection, etc., to avoid unjust and false cases at source; to standardize the application of coercive measures and investigative methods, and to effectively safeguard human rights.” The defense lawyers also emphasized repeatedly during the hearing of this case that "resolving civil disputes in the criminal court would result in a disaster for the rule of law, which is a deviation from General Secretary Xi's basic concept of comprehensively promoting the rule of law". The team of criminal lawyers of Hylands also hopes to make the best of professional legal knowledge and profound experience in handling criminal cases to reduce the occurrence of such "civil cases resolved by criminal courts" and to contribute to the spring of the rule of law that the Party and the State emphasize "resolutely eliminating the treatment of economic disputes as crimes".