The prospect of the sand mining project is too optimistic, and it has been losing money after attracting investment funds, and there is no fraud and no intention

Source: Judgment Network

The gist of the adjudication: The key to the declaration of this case is that there is insufficient evidence to prove that Qiu Mouwei had the subjective intention of fabricating facts, concealing the truth, and illegally taking possession of the victim's investment funds.

Case Index (2017) Yue 09 Xing Zhong No. 324

Basic facts of the case: On December 3, 2009, the appellant Qiu Mouwei, Zhao, Wu Mou1, Liang Mouwu, Wu Mouming, and Mo Mou invested a total of RMB 500,000 to establish a city mining company in Maoming City (hereinafter referred to as a city company), and Qiu Mouwei served as the legal representative of the company, which was changed to a sole proprietorship of Qiu Mouwei after 2013. On March 9, 2012, Che Mou1 (fugitive) and Che Mouling invested a total of RMB 500,000 to establish Maoming Moufeng Mining Co., Ltd. (hereinafter referred to as Moufeng Company), and Che Mou1 was the legal representative of the company, which was changed to a sole proprietorship of Che Mou1 on June 18, 2013.

　　In April 2011, Qiu Mouwei learned that there was placer mining in the sand field of Shawan District, Leshan City, Sichuan Province, so he successively sent the ore samples to the 704 Geological Brigade Laboratory of the Guangdong Provincial Geological Bureau in Zhanjiang City in September, October, November, January and August 2012 for chemical analysis, and the analysis results showed that the samples contained vanadium ore, solitary (a rare earth mineral), yttrium phosphate, rare earth, rutile (titanium ore), tin, Au10-6 (gold) and other components, but did not explain in writing whether there was mining value. Since June 2011, Qiu Mouwei has set up a Leshan office of a city company in the name of a city company using local sand mining in Shawan District, Leshan City, Sichuan Province, with an office address of Leshan High-tech Zone (located in Shizhong District, Leshan City). In November 2011, Qiu Mouwei reached a cooperation agreement with Wang Mouxiang, a native of Sichuan, on behalf of a city company, in which Wang Mouxiang invested 200,000 yuan and was responsible for the sand field relationship of the Dadu River, and a city company was responsible for the construction of a sand pumping and mining platform, and was responsible for the production management of the platform, and the profits of the two sides were equally shared.

　　Che 1 provided a copy of the "Investment Cooperation Agreement" signed on January 30, 2012 with a city company as Party A and a Feng company as Party B, indicating that Party A had expanded and developed the business of collecting black sand in Sichuan Province, and Party B decided to invest in the mining project with Party A due to insufficient funds and needed to find investors to cooperate. The two parties agreed on the cooperation method as follows: 1. Party A shall provide the sand field for the production of black sand, and Party B shall be responsible for the funds required for multiple production platforms of the mining project, that is, Party B shall have a one-time investment of a total of RMB 1.08 million to Party A, and Party A shall be responsible for the installation technology and production technology of machinery and equipment, and the overall management after the completion of installation and normal production. Party B decided to invest in multiple production platforms for joint investment. 2. When both parties confirm the signing of the contract, Party B shall invest in a production platform to cooperate with Party A for every RMB 1.08 million paid to Party A on the date of signing the agreement. The responsibilities of the two parties agree to cooperate are: 1. Party A is responsible for all the costs of the entire black sand mining project, including workers' wages and other expenses, which have nothing to do with Party B; Party A is responsible for all production safety accidents that occur in production management, and Party B has nothing to do with them. After Party A receives any payment for the installation of the production platform from Party B, it must install, debug and put the production equipment into use within three months, and if there is any delay, Party A shall be deemed to have breached the contract; Wait a minute. The two parties have agreed on the profit distribution as follows: Party A guarantees that the net profit of the black sand produced by the production platform cooperated by Party A and Party B will be given to Party B at the agreed price of RMB 300 yuan/ton, and Party A will not be subject to the market price adjustment of the product. The tonnage of black sand is calculated on a dry basis, and the actual output of black sand is subject to the confirmation and signature of the staff of both sides, and the settlement time between Party B and Party A is January 1, that is, the 18th to 20th of the next month is the settlement date. The agreement also stipulates the term of cooperation and liability for breach of contract.

　　In April 2012, a city company built the first sand pumping and mining platform to pump sand and extract mineral sand in the Dadu River. A few days later, the platform capsized and sank at the bottom of the Dadu River. A city company invested 600,000 yuan and Che 1 invested 600,000 yuan to build a second sand pumping and mining platform in May 2012, and the trial operation was successful. At the end of the month, Qiu Mouwei and Wang Mouxiang reached an agreement that Qiu Mouwei would pay Wang Mouxiang RMB 400,000 to buy shares of the platform, and Wang Mouxiang made a profit of RMB 200,000 in the transaction.

　　On July 9, 2012, a city company signed an "Investment Cooperation Agreement" with Song and Li Moujun, Sichuan people, stipulating that Song and Li Moujun would invest RMB 1.38 million to build a mining platform for a city company, and agreed on the return on investment and profit distribution methods. On November 8, 2012, a city company signed an Investment Cooperation Agreement with Song and Li, stipulating that Song and Li Moujun would invest RMB 1.38 million to build a mining platform for a city company, and agreed on the method and amount of the contract rent paid by a city company to Song and Li. On December 6, 2012, a city company signed an Investment Cooperation Agreement with Song, stipulating that Song would invest RMB 1.38 million to build a mining platform for a city company, and agreed on the payment method and amount of the contract fee. From September 2012 to April 2013, a city company successively paid a total of RMB 1.6 million to Song and Li Moujun for the performance of the above agreement, and did not make any further payments to Song and Li Moujun thereafter.

　　After witnessing Song and Li Moujun sharing the profits, Wang Mouxiang also began to invest in a city company in September 2012. On February 3, 2013, the two parties signed the "Investment Cooperation Agreement", stipulating that Wang Mouxiang would invest RMB 1.38 million to build a mining platform for a city company, and agreed on the payment method and amount of the contract fee. From December 2012 to April 2013, a city company successively paid RMB 800,000 in profits to Wang Mouxiang, and did not pay Wang Mouxiang any further money thereafter.

　　On May 8, 2012, a Feng company and Li Moubo signed a "cooperative investment beneficiation agreement", stipulating that Li Moubo would invest 1.2 million yuan in the design and manufacture of mineral processing "Wusha" equipment project in Shawan District, Leshan City, Sichuan Province, and agreed on the operation and management methods, the proportion of investment shares, rights and responsibilities of both parties; A Feng company issued a power of attorney and entrusted Li Moubo to remit the investment money to Che Mouling's bank account. On the same day, a certain Feng company and Che Mou1 issued a receipt to Li Moubo. On May 30, 2012, a Feng company and Li Moubo signed a "cooperative investment beneficiation agreement", which also agreed that Li Moubo would invest 1.2 million yuan in the design and manufacture of mineral processing "Wusha" equipment project in Shawan District, Leshan City, Sichuan Province, and agreed on related matters. On June 7, 2012, a Feng company issued a power of attorney, entrusting Li Moubo to remit the investment funds to Che Mouling's bank account; On the same day, a certain Feng company and Che Mou1 issued a receipt to Li Moubo. From October 2012 to April 2013, Li Moubo received a total of RMB 1.27 million in profits, and has not received profits since then.

　　On May 15, 2012, a city company issued a receipt certificate, confirming that it had received RMB 1.08 million from a Feng company for project cooperation projects, and marked that it had remitted money on May 8.

　　On October 8, 2012, a Feng company and Zhang Mouqin signed an "investment cooperation agreement", agreeing that Zhang Mouqin would invest RMB 1.35 million to collect "tungsten sand" project for a Feng company, and the two parties agreed on the cooperation method, rights and obligations, etc., and Che Mou1 served as the guarantor for the performance of the agreement. On October 12, 2012, Zhang Mouqin transferred RMB 1.35 million to Che Mouling's bank account, and on the same day, a Feng company issued a receipt for the receipt of the above-mentioned money to Zhang Mouqin. On November 27, 2012, Zhang Mouqin transferred another RMB 1.35 million to Che Mouling's bank account, and on the same day, a Feng company issued a receipt for receiving the above-mentioned money to Zhang Mouqin. Since then, Zhang Mouqin has not received any profits.

　　On October 9, 2012, a Feng company and Liu 1 signed an "Investment Cooperation Agreement", stipulating that Liu 1 would invest RMB 1.35 million in the collection of "black sand" project of a Feng company, and the two parties agreed on cooperation responsibilities and other matters. Liu's brother, Liu2, signed the agreement as a guarantor. On October 22, 2012, Liu X 1 transferred RMB 1.35 million to Che Mouling's bank account, and on the same day, X Feng Company issued a receipt for the receipt of the above money to Liu X 1. On December 31, 2012, a Feng company and Liu 1 signed a copy of the "Supplementary Agreement to the Investment Cooperation Agreement", which changed the settlement and other matters agreed in the original agreement. In April and May 2013, Mr. Liu1 received a total of RMB 160,000 in profits, and has not received profits since then.

　　The above-mentioned funds transferred by Li Moubo, Zhang Mouqin, and Liu Mou1 to Che Mouling's account, in addition to leaving part of the funds in a certain Feng Company for her own use, transferred the rest to the accounts of Jiang Mourong, Xu Moujing, and Gan Mouyan, the designated payees of a certain city company.

　　On October 7, 2013, a city company issued a receipt of arrears, stating that the city company still owed a certain company a principal of RMB 8.54 million and a profit of RMB 3 million; Che Mou1 provided a copy of the Supplementary Agreement I to the Investment Cooperation Agreement signed by the two companies on October 8, 2013, stating that due to the high production cost of Party A, the date for returning Party B's investment principal was continuously delayed, so Party B's investment principal and profit distribution were adjusted and changed. The two parties agreed that Party A originally needed to return a total of RMB 10.16 million to Party B, and the principal of RMB 1.62 million had been refunded and the remaining principal of RMB 8.54 million had not yet been returned to Party B. At least RMB 3 million will be refunded within 6 months after the agreement is signed, and the remaining amount will be returned to Party B within one year after the agreement is signed. Party A shall pay Party B RMB 3 million within two years after the signing of the agreement as the income of Party B from the investment. When Party A pays Party B's full investment of 10.16 million yuan and profit of 3 million yuan to Party B, the property rights of the production platform invested by Party B belong to Party A and have nothing to do with Party B, etc.

　　On December 20, 2013, Zhang Mouqin reported to the public security organs that he had been defrauded by Che Mou1, Che Mouling, Che Moulin, and Qiu Mouwei; On February 26, 2014, Liu X 1 reported to the public security organ that he had been defrauded by Che X 1; On April 9, 2014, Li Moubo reported to the public security organs that he was defrauded by Qiu Mouwei, Che Mou1, Che Mouling, and Che Moulin. On January 27, 2014, Che Mou1 reported to the public security organs that he had been defrauded by Qiu Mouwei and Gan Mouyan; On May 8, 2014, the public security organs conducted an online pursuit of Che XX1. On March 4, 2014, Qiu Mouwei was arrested by the police of the Shizhong District Bureau of the Leshan Public Security Bureau in Room 406 of the Jiasheng Hotel, Chezi Town, Shizhong District, Leshan City, Sichuan Province, and was subsequently handed over to the Maoming police.

　　It was also ascertained that the original business scope of a city company was to sell mineral products, but on September 18, 2012, the business scope was changed to screen and sell mineral products. A city company pumped sand mining in the Dadu River, which was beyond the scope of operation. According to the monthly income and expenditure statistics table of the Leshan office of a city company from February 2012 to March 2013, the company's Leshan office has monthly sales revenue, as well as expenses for production, sales and office, and the monthly profit and income are all losses. The income and expenditure statistics table shows that from February 2012 to March 2013, a city company received a total of RMB 16,601,000 in machinery investment, the company's income was RMB 2955074, various expenses were RMB 16972708, and the loss was RMB 14017634.

　　It was also ascertained that the two agreements signed by a city company and a Feng company provided by Che X 1 to the public security organs were photocopies, and it was impossible to evaluate the time of the formation of Zhu Mo.

　　It was further ascertained that Che Mou1 participated in the operation and management of the Dadu River sand mining project of a city company, and was responsible for the production and operation of the ore processing plant in Yao Village, Jintang Town, a city company.

The court held that, based on the available evidence, the basic facts that could be confirmed about the operation of the Dadu River Project of a city company were as follows:

　　(1) Before and during the Dadu River sand mining project, Qiu Mouwei sent sand and gravel samples for testing 6 times, and the test results showed that they contained precious metals. Before the first investment partner, Wang Mouxiang, took the initiative to contact and cooperate, a city company had already mined sand in the Dadu River. The Dadu River sand mining project is real and has the potential to be profitable.

　　(2) The investigative organ failed to audit the financial situation of a city company. According to the income and expenditure statements of the Leshan office of a city company from February 2012 to March 2013 and the testimony of the witness Jiang Mourong, the investment funds received by the city company were used in the production and operation of the Dadu River project, and the evidence in the case did not show that Qiu Mouwei used the investment funds elsewhere.

　　(3) According to the income and expenditure statements of the Leshan Office of a city company from February 2012 to March 2013, the Dadu River sand mining project of a city company has been in a state of loss and has not made a profit.

　　Based on the above facts, there is a possibility of profitability in the Dadu River project of a city company, and Qiu Mouwei was overconfident in the profit prospects of the project and blindly invested, but failed to achieve profitability due to various reasons.

　　The original public prosecution accused the appellant Qiu Mouwei of committing the crime of contract fraud, which is when one party to the signed contract defrauds the other party of property, and the direct partner of a city company in this case is a certain Feng company, because the legal representative of a certain Feng company, Che X 1, participated in the operation and management of the Dadu River project of a certain city company, and was also responsible for the screening and sales of Dadu River mineral sand at the Yaocun processing plant of a certain city company, so it should be understood about the production, operation, profit and loss of the Dadu River sand mining project, as well as the performance ability of a certain city company. There is no fact of contract fraud between Qiu Mouwei and Che Mou1. According to the statements of the three victims, Che XX1, did not inform the three victims of the loss of the Dadu River Project when they absorbed the investment. The original public prosecution accused Qiu Mouwei and Che Mou1 of concealing the fact that they were incapable of performing the contract and defrauding the three victims of investment funds, but sufficient evidence is needed to prove that Qiu Mouwei and Che Mou1 had the common intent to commit contract fraud. When the three victims signed a cooperation agreement with a certain Feng company, Qiu Mouwei did not participate, nor did he contact Zhang Mouqin and Liu Mou1. In April 2012, when Li Moubo visited the Dadu River sand quarry, Qiu Mouwei introduced to him that the mineral sand of the Dadu River has high mining value. It cannot be ruled out that being optimistic about the profit prospects of the project is Qiu Mouwei's true idea, and at this time, the Dadu River project has not been started for a long time, and it is not foreseeable that the project will continue to lose money and a city company will lose its ability to perform, so it cannot be determined that Qiu Mouwei introduced the prospects of the sand mining project to Li Moubo with fraudulent intentions. Other evidence in the case also cannot prove that Qiu Mouwei and Che Mou1 had a common intention to commit contract fraud. To sum up, there is insufficient evidence in the case to prove that Qiu Mouwei had the subjective intention of fabricating facts, concealing the truth, and illegally taking possession of the victim's investment funds, so the original public prosecution's accusation that Qiu Mouwei constituted contract fraud was insufficient and could not be established. Appellant Qiu Mouwei and his defender's grounds of appeal and defense opinions that Qiu Mouwei did not constitute contract fraud are sufficient and supported.

　　To sum up, the original public prosecution's accusation that Qiu Mouwei committed the crime of contract fraud was insufficient and could not be established. The original judgment's finding that Qiu Mouwei committed the crime of contract fraud was based on unclear facts and insufficient evidence, and should be corrected. Appellant Qiu Mouwei's grounds of appeal were upheld and supported.

Judgment Result 1: Revoke the Criminal Judgment (2016) Yue 0902 Xing Chu No. 168 of the Maonan District People's Court of Maoming City, Guangdong Province. 　　2. The appellant (defendant in the original trial) Qiu Mouwei is not guilty.

　　This judgment is final.

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