Strengthen the supervision of criminal case filing to ensure the healthy development of non-public economy
——The head of the Tenth Procuratorate of the Supreme People’s Procuratorate answers reporters’ questions on the twenty-fourth batch of guiding cases
The procuratorial organ has the responsibility of supervising criminal case filing. It shall supervise and correct prominent problems involving non-public economic cases such as not standing and not standing, and resolutely prevent and correct various illegal acts such as intervening in civil disputes and economic disputes in the name of criminal cases. .
Recently, the Supreme People's Procuratorate released the twenty-fourth batch of guiding cases under the theme of "non-public economic case filing and supervision." Xu Xiangchun, Director of the Tenth Procuratorate of the Supreme Procuratorate, answered reporters' questions on related issues.
Reporter: The Supreme People’s Procuratorate has issued a batch of guiding cases on non-public economic case filing and supervision. What are the background and main considerations for the preparation?
Xu Xiangchun:
As an important part of the socialist market economy, the non-public ownership economy and the public ownership economy together constitute an important foundation for China's economic and social development.
Since the reform and opening up, the non-public economy has continued to grow and develop. It has played an important role in supporting growth, promoting innovation, expanding employment, and increasing taxation. It is also an important support for promoting my country's economic transformation and upgrading.
Since the 18th National Congress of the Communist Party of China, the Party Central Committee with Comrade Xi Jinping at its core has attached great importance to the development of the non-public economy. General Secretary Xi Jinping has issued important instructions many times to provide fundamental guidance for the sustainable and healthy development of the non-public economy.
The Fifth Plenary Session of the Nineteenth Central Committee of the Communist Party of China made important arrangements to promote the high-quality development of the non-public economy, proposing to stimulate the vitality of various market entities and build a high-standard market system.
Protecting the legitimate rights and interests of non-public enterprises in accordance with the law and supporting the healthy development of the non-public economy are inevitable requirements for upholding and improving my country's basic economic system, and it is an important responsibility of procuratorial organs.
In recent years, judging from the types of complaints and complaints received by the procuratorial organs, the number of cases involving non-public economic disputes is increasing, and it reflects the problems of ultra vires jurisdiction over non-public economic cases, violation of regulations, violation of regulations and interference in the execution of civil judgments. Relatively prominent, some companies report that their legitimate rights and interests have been violated by criminal acts, but they do not file a case or shirk their case.
Such violations of laws and regulations have caused great harm to the enterprises involved, and sometimes they are even difficult to make up. They severely damage judicial authority and judicial credibility, disrupt fair competition and a healthy and orderly market order, and also affect and shake the people’s confidence in fairness and justice. It is necessary for the procuratorial organs to base their supervision on their duties, increase the intensity of criminal case filing and supervision, and promptly supervise and correct them.
Therefore, from July 2019 to March this year, the Supreme People’s Procuratorate deployed special activities to supervise the filing and supervision of non-public economic cases, specifically to resolve cases that should be filed but not, and cases should not be filed, especially in the name of criminal cases to intervene in civil disputes, Economic disputes and other issues.
During the special activities, the procuratorial organs of various regions handled 3,472 non-public economic case registration and supervision cases, and issued 2,077 notices to the public security organs requesting to explain the reasons for filing or not filing the case, deeming that the public security organ’s reasons were unfounded, supervising and canceling the case and supervising the filing of 1,150 cases The supervision and correction rate is 55.4%.
At the same time, the procuratorial organ also issued 257 notices to correct violations to the public security organs.
This special event not only allowed non-public enterprises and non-public economic individuals to experience the actual actions and positive results of the procuratorial organs in protecting the non-public economy in accordance with the law, but also helped non-public enterprises and non-public economic individuals to improve their awareness of the rule of law and rules. Enhance corporate management capabilities and safety prevention and control capabilities.
In July this year, the Supreme People’s Procuratorate issued the “Opinions on Giving Full Play to the Procuratorial Function to Serve the “Six Stability” and “Six Guarantees” (hereinafter referred to as the “Opinions”), emphasizing the requirement to strengthen the supervision of criminal case filing and focusing on correcting cases involving private enterprises. Prominent issues such as standing up and not standing up, resolutely prevent and correct various illegal acts such as intervening in civil disputes and economic disputes in the name of criminal cases.
In order to implement the spirit of the "Opinions", give play to the role of demonstration, guidance and guidance, strictly distinguish between criminal crimes and economic disputes, supervise and withdraw cases involving non-public economic cases that should not be opened, and prevent violations of the legal rights and interests of non-public enterprises The Supreme People’s Procuratorate sorted out and screened the typical cases summarized in the special activities, followed strict standards and selected the best, and compiled these guiding cases.
Reporter: The guiding cases released in this batch are based on the theme of "non-public economic case filing and supervision". They have strong practical relevance and business guidance. What are their distinctive features?
Xu Xiangchun: The
Supreme People’s Procuratorate compiles and issues guiding cases, requiring that they have guiding significance for handling similar cases in terms of fact identification, evidence use, law application, policy grasp, and case handling methods. The fundamental feature is to focus on prominent issues, deepen and implement precise supervision, and timely Supervise and correct illegal acts, safeguard judicial justice and the legitimate rights and interests of the people.
Specific to this batch of released cases, it mainly reflects the following four characteristics:
One is to highlight criminal case filing and supervision services and fully demonstrate its value function.
As one of the basic functions of procuratorial supervision, criminal case filing supervision bears the important responsibility of standardizing criminal case filing procedures. The performance of case filing supervision duties must run through the procuratorial and case handling. Supervising during the handling of the case, handling the case under supervision, leaving the case, the supervision of criminal case filing is Water without a source, wood without a root.
Among the cases released this time, the first two cases are cases of supervising and dismissing cases, which reflect the timely and effective avoidance of criminal cases from adversely affecting enterprises and protect the healthy development of the non-public economy; the latter two cases are cases of effective guilty verdicts after the supervision of the case The case reflects the protection of the legitimate rights and interests of the company and promotes the formation of a good business environment.
At the same time, among the cases released this time, there are cases in which the supervision procedures are initiated based on the application of the parties, such as the first three cases, and there are cases in which the procuratorial organ actively initiates the supervision procedures according to their powers, such as the fourth case.
On the whole, the characteristics of this batch of case prosecutions are very distinctive, and they comprehensively cover the business scope, handling procedures and work content of criminal case filing and supervision cases.
The second is to adhere to the concept of equal protection and strengthen the application of policies.
Ideas and policies are the forerunners of actions, and it is vital to determine the direction, methods and effects of case handling.
In recent years, the Supreme Procuratorate has attached great importance to the leading role of the concept of equal protection in non-public economic cases, strengthened policy guidelines, case guidance, education and training, and required our prosecutors to effectively deal with state-owned enterprises, private enterprises, domestic and foreign investment, Large, medium, small and micro enterprises are treated equally, to ensure that enterprises of all types of ownership have equal litigation status, equal litigation rights, and equal legal protection. There should be no judicial differential treatment based on different identities.
For example, the parties involved in the first three cases released this time are all private enterprises and entrepreneurs, and the victim company Mars in the fourth case is a well-known foreign-funded food manufacturer. The procuratorial organs treat them equally when supervising the performance of their duties. Equal protection.
The third is to implement the criminal policy of both leniency and strictness to promote legal and compliance operations of enterprises.
It not only emphasizes that cases must be handled and guilty must be investigated, but it also insists on statutory crimes and punishments, both leniency and strictness, insisting on letting enterprises "survive", "run" and "developing well", and strive to help enterprises restore normal business order, and standardize business operations, and promote The long-term development of the enterprise is unified and balanced.
For example, in case three, the defendant company A is a private enterprise, and Lu is the person in charge of the enterprise. He should have executed the legally effective judgment made by the people’s court according to law, but Lu deliberately changed the company name and legal representative and concealed the expiry Income, thereby concealing and transferring property, making the judgment unenforceable. For such serious circumstances, the crime of refusal to execute the judgment should be prosecuted.
In the process of prosecution, the procuratorial organ severely criticized and educates the company’s person in charge, Mr. Lu, to realize the legal obligation to execute the court’s effective judgment on time and the legal consequences of refusing to execute the effective judgment, and actively urged Company A to execute the judgment and report to the victimized company. Perform legal obligations and apologize.
After the procuratorial agency informed Lu of the law of litigation rights and the legal provisions of pleading guilty and punishing, he voluntarily pleaded guilty and pleaded guilty. The procuratorial agency put forward a definite sentence for probation and was accepted by the court.
The handling of the case not only fully and effectively protects the lawful rights and interests of the applicant for execution, but also allows the private enterprises involved in the case to fully realize that the law is the bottom line of business operations, and the operators must bear corporate responsibilities in accordance with the law and perform the legal obligations determined by the court’s effective judgment on time. Only by operating in compliance with the law can the long-term and healthy development of an enterprise be ensured.
Fourth, strictly grasp the boundary between crime and non-crime, and clarify controversial legal application issues.
The case released this time adheres to the problem orientation, pays attention to the distinction between economic disputes and economic crimes, prevents arbitrary infringements on the legitimate rights and interests of non-public enterprises, and accurately grasps the boundaries of laws and policies, strictly distinguishes general violations of laws and regulations from criminal crimes, and ensures The quality and effect of case handling.
For example, case one reflects the reiteration and adherence to the principle of legally prescribed crimes and punishments, and the supervision has cancelled the criminal case that classified auction collusion as collusive bidding.
Case 2 involves the distinction between contract disputes and contract fraud. Through this case, it is clear that when handling criminal cases involving civil legal relations, it is necessary to comprehensively analyze the different legal relations of the case, judicial policy orientation and other factors, and accurately grasp the boundary between crime and non-criminal To prevent mechanical justice, for civil fraud, contract breach and other creditor’s rights dispute cases, we must substantively study and analyze the legal relationship involved, the legal actions of the parties and their subjective intentions, and the identification of "criminal fraud" and "contract fraud" cannot be simplified, so as to prevent criminal prosecution. Intervene in civil disputes, illegally intervene in public power and damage the legitimate rights and interests of the parties.
Reporter: Please give a specific introduction. If a non-public enterprise disagrees with the public security organ's decision to file a case, or thinks that it should not be filed, how to apply to the procuratorial agency for supervision?
Xu Xiangchun:
According to the provisions of the law and judicial interpretation, the procuratorial organ is responsible for the supervision of case filing. The scope of supervision mainly includes that the public security organ should file the case but not and the public security organ should not file the case.
If a non-public enterprise and a non-public economic person believe that their actions do not constitute a crime and the public security organ opens a case in violation of the law, or if the legal rights and interests of the enterprise are violated by a criminal act and the public security organ should not establish a case, they may request the procuratorate to file a case for supervision.
When submitting an application for supervision, the procuratorial organ shall submit the application materials, identity certificate, and legal documents for filing or not filing the case with the public security organ, etc.
The procuratorial organ shall accept the application for supervision and review it in accordance with the facts and laws. If the conditions are met, the public security organ shall be required to explain the reasons for filing or not filing the case.
After necessary investigation and verification, if the procuratorial organ believes that the public security organ’s reasons for filing or not filing the case cannot be established, it shall notify the public security organ to cancel the case or file the case in accordance with the prescribed procedures.
Moreover, if the procuratorial organ notifies the public security organ to cancel the case or file a case, it shall supervise the execution according to law.
In addition, in accordance with the provisions of the law and judicial interpretation, the procuratorial organ may also initiate the supervision procedure for filing a case based on its power or transfer by the administrative law enforcement agency.
Procuratorial organs should establish the work philosophy of “good supervision means cooperation” and “win-win, win-win”, cooperate with the public security organs, check each other, accurately grasp the criminal case filing standards, ascertain the truth of the case, and pass laws and regulations. Initiate criminal procedures to prosecute crimes, terminate criminal procedures in accordance with the law to protect innocents from criminal prosecution, ensure the unified and correct implementation of the state's power of prosecution, effectively safeguard the legitimate rights and interests of enterprises, and demonstrate fairness and justice.
It should be noted that, according to relevant regulations, a request to withdraw a case through the supervision procedure for filing a case should be submitted before the approval of arrest or transfer for prosecution. If the criminal suspect has been submitted for approval of arrest or transfer for prosecution, it can be in the review and arrest procedures Request the procuratorial organ not to approve the arrest, or request the procuratorial organ not to prosecute and obtain relief during the review and prosecution process.
Reporter: In the case of non-public enterprises that have not made a decision on whether to file a case for a long time after accepting the report, can the procuratorial agency request the case for supervision?
Xu Xiangchun:
This situation of not making a decision on whether to file a case within the statutory time limit does exist objectively in judicial practice, and the procuratorial organ has noticed this problem.
In 2015, the Ministry of Public Security promulgated the "Opinions on Reforming and Improving the System of Accepting Cases", which clearly stipulated the time for the decision to file criminal cases.
Subsequently, in the relevant work measures for the convergence of the two laws signed by the Supreme People’s Procuratorate, the Ministry of Public Security, the State Food and Drug Administration, and the Ministry of Environmental Protection, the situation that the public security agency did not make a decision whether to open a case beyond the statutory time limit was included in the scope of supervision and filing, and the effect of supervision was strengthened. .
In order to improve the statutory effectiveness of supervision, the Supreme People's Procuratorate revised the "People's Procuratorate Criminal Procedure Rules" in 2019 to clarify and fix the content of this supervision.
According to Article 562 of the Criminal Procedure Rules of the People’s Procuratorate, for this type of situation where the public security organ does not make a decision on whether to open the case within the prescribed time limit after accepting the report, the enterprise can request the procuratorial organ to file a case for supervision, and the procuratorial organ shall accept it. And review it.
After review, if it is deemed that the prescribed time limit has not been exceeded, it shall be transferred to the public security organ for handling and reply to the informant; if it is deemed that the prescribed time limit has been exceeded, the public security organ shall be required to explain in writing within seven days the reasons for not making a decision on whether to open the case within seven days, and reply with relevant evidence materials. Procuratorial agency.
The procuratorial organ shall notify the public security organ to file the case if it finds that it meets the conditions for filing a case after reviewing the relevant evidence materials.
If the public security organ does not give reasons or make a decision to file a case or not to file a case within seven days, the procuratorial organ shall provide corrective opinions.
Reporter: At present, in the development of non-public enterprises, there are some crimes and innocences, crimes and mistakes that are not clear. When handling cases, how do the procuratorial organs grasp the boundaries of economic violations and economic crimes in the business process? How to give more tolerance and help to mistakes and failures in business?
Xu Xiangchun:
In his speech at the 20th collective study session of the Political Bureau of the Central Committee, General Secretary Xi Jinping pointed out that it is necessary to strengthen supervision of judicial activities, unblock judicial relief channels, protect the legitimate rights and interests of citizens, legal persons and other organizations, and resolutely prevent interference in civil cases in the name of criminal cases. Disputes, economic disputes.
The Supreme People’s Procuratorate earnestly implemented the spirit of General Secretary Jinping’s important speech, attaches great importance to solving various legal risks faced by non-public enterprises, and requires a practical change in the "heavy blows and light protection" thinking, fully consider the characteristics of the non-public economy, and give priority to the survival and development of enterprises , Accurately grasp the boundaries of laws and policies, strictly implement the criminal policy of combining leniency and strictness, and handle cross-criminal cases prudently. If the boundary between criminal and civil disputes or economic disputes is unclear, criminal responsibility should be carefully pursued to prevent "handling a case and breaking down It happened that a company smashed the jobs of a group of people.
On December 7 this year, the National Procuratorate’s Conference on the Implementation of the Civil Code proposed to prevent intervening in civil disputes through criminal prosecution, illegal intervention in public power and harming the legal rights of the parties and reducing or restricting the civil rights of citizens.
From the perspective of judicial practice, the current distinction between corporate economic violations and economic crimes focuses on the distinction between legitimate financing and illegal absorbing of public deposits, fund-raising fraud and other crimes, economic violations and illegal operations and other crimes, civil fraud and contracts The limits of fraud and other crimes.
In response to the above-mentioned outstanding issues, the Supreme People's Procuratorate issued 11 procuratorial policies to serve the private economy in November 2018, and determined the relevant law enforcement and judicial standards for handling cases involving private enterprises.
For example, on how to accurately distinguish between legitimate financing activities and illegal fund-raising crimes in business activities, it is clearly required that economic activities such as production, operation, and financing of private enterprises shall not be treated as illegal or criminal unless explicitly prohibited by laws and administrative regulations.
Regarding how to strictly apply the crime of illegal business operations to prevent the expansion of criminal crackdowns, it is clearly required that the operation of private enterprises is not clearly prohibited by law and judicial interpretations. Criminal responsibility shall not be investigated for the crime of illegal business operations.
The general principle to grasp this is that the criminal law belongs to the criminal law, and the civil law belongs to the civil law. For the unclear boundaries of laws and policies, crime and non-crime, crime and error, it is necessary to strengthen research and analysis, carefully and properly handle, and resolutely prevent general violations. Violations, work mistakes, and even reforms and innovations are regarded as crimes, and we must effectively punish criminals, support entrepreneurs, rescue those who fail, and educate those who have made mistakes in accordance with the law.
Reporter: Since 2019, the Supreme People’s Procuratorate has deployed the work of “responding to letters and visits from the masses”, which has won widespread praise from the people. How does the procuratorial organ strengthen the protection of the non-public economy in this work?
Xu Xiangchun: The
reason why the Supreme People’s Procuratorate fully promoted the “respondents to letters and visits from the masses” (procedural responses within 7 working days, and responses to the process or results within 3 months), the purpose is to allow the masses to judge, supervise, and force prosecution The agency updates the judicial concept, consolidates work responsibilities, enhances the effectiveness of work, and truly implements the "people-centered" concept.
This work has been implemented, rooted, and effective in the procuratorial organs, and has been fully affirmed by all sectors of society.
In order to protect the legitimate rights and interests of non-public enterprises in a timely manner and unblock the channels for expressing appeals, procuratorial organs at all levels have effectively played the role of 12309 procuratorial service center, and created four “letters, visits, internet, and electricity” in the work of “responding to public letters and visits” The integrated appeal expression system, the specific measures are as follows: First, the opening of a "green channel" for private enterprise legal services.
In September last year, the 12309 procuratorial service center of the four-level procuratorial organs across the country opened a "green channel" for private enterprise legal services, and set up a window for private enterprises, and gave priority to receiving, promptly accepting, and legally responding to complaints and appeals involving private enterprises. It also actively uses the functions of legal consultation and answering questions and interpretation of the law to help private enterprises improve their awareness of the rule of law and legal thinking, promote private enterprises to strengthen prevention, resist risks, and resolve hidden dangers, and help private enterprises improve their security prevention capabilities.
Second, in April this year, a special case-filing and supervision work mechanism was established for non-public economic cases.
Efforts will be made to resolve outstanding issues such as non-public economic cases that should not be filed but should be filed and should not be filed, and focus on supervising and correcting various illegal behaviors such as intervening in civil disputes in the name of criminal cases, economic disputes, seizures, seizures and freezing of excessive amounts.
Since the establishment of this mechanism, procuratorial organs have supervised and corrected 317 illegal cases, and 551 cases should be opened instead of filing. This has become an important channel and way to protect the legitimate rights and interests of non-public enterprises.
The third is the opening of the "Special Zone for Non-public Economic Judicial Protection" on the 12309 China Procuratorate in August this year.
In response to the prominent types of cases that currently reflect non-public economic disputes, 6 divisions have been set up: "Request for supervision of criminal case filing," "Apply for change of compulsory measures", "Complaint", "Criminal appeal", "Apply for civil supervision" and "Apply for administrative supervision". And broaden the sources of complaints and complaints involving non-public economy.
As of November, in only four months, the procuratorial organs have received 6,210 clues related to non-public economic cases through this area, and they have all handled them in a timely manner in accordance with the requirements of “there are responses to the masses’ letters and visits”.
In addition, the Supreme People’s Procuratorate this year also deployed special activities to clean up and supervise non-public economic complaints and complaints, focusing on the comprehensive protection of the legitimate rights and interests of non-public enterprises, focusing on strengthening legal supervision, and striving to provide strong judicial guarantees for the healthy development of non-public economies. A fair and just legal environment.