騰訊財經報道：民營企業財產屢遭非法沒收

Private enterprises face judicial risks due to repeated illegal confiscation of property

Recently, several seminars were held in Beijing, Guangzhou, Shanghai, Zhejiang, Henanand other places to discuss the judicial risks of private enterprises in China. Some casesdisclosed in judicial practice are shocking. Some experts and lawyers have already concludedthat the development thinking and concept of “allowing some people to get rich first” in China’s30-year reform and opening-up process is facing unprecedented challenges. The phenomenonof the economic and business circles has already forced ideological concepts. If the status andnature of the private economy in China cannot be accurately determined at this stage, thedanger of the “second land reform” is accumulating and coming, which will seriously affectChina’s next reform. towards.

The judicial risk of private enterprises is increasing day by day

In recent years, private enterprises have faced extremely high judicial risks due to factors such as local public power hating the rich and destroying the rich, the expansion of anti-criminalism, the transfer of wealth and power, and the politicization of economic behavior. Entrepreneurs in some cases have been accused of “participating in the underworld”, theirproperties have been deprived and illegally confiscated by the public security and judicial organs under various pretexts, and their wealth resources have been redistributed through judicial intervention. At present, some “judicial group corruption” has made the courts lose their neutrality and objectivity, and cannot protect the bottom line of social fairness and justice.

Many powerful private enterprises that have accumulated and grown in the past 30 years of reform and opening up have gone bankrupt and closed one after another under the multiple squeezes of administrative orientation, state-owned economy and judicial power. Enthusiasm for investment, turning to investing in speculative and short-term industries, has a serious and destructive impact on the long-term and stable development of China’s economy.

The vast majority of Chinese private enterprises are cautious, more law-abiding and more self-reliant than state-owned enterprises. The very serious judicial risks currently facing them are not because they do not abide by the law or deliberately violate the law, but because our ideological foundation, political concept foundation and legal concept foundation all naturally have the genes to suppress and destroy the private economy and the private economy.. With the full involvement of public power in the economy, the corporatization of local governments, the existence of powerful state-owned enterprises, and the status quo that state-owned assets are held by local governments, private entrepreneurs have formed a competitive relationship with the public power economy. The result of competition must be that private economists are in a weak position, and even the behavior of public power plundering the private economy.

Relying on their power, individual officials wantonly plundered the property of private entrepreneurs, and even tortured them for fabricating crimes. There are mainly two types. One is to deprive private entrepreneurs of their wealth illegally for various reasons, confiscate them into the state treasury, and use them as a way to “hit criminals.”” and the beautiful slogan of “Equalizing the rich and the poor”, to carry out the second “beating of local tyrants” of wealth; the other is mainly to intervene in the game of interests between civil subjects, use judicial power to serve their related people, and illegally re-divide, looting and redistribution of wealth. The property rights and personal freedom of some private entrepreneurs have been arbitrarily infringed by local public power, and the property rights of private enterprises have been violated, resulting in the hollowing out of China’s private economy and the lack of innovation.

In recent years, there has been a kind of hatred of wealth in China, especially since the reform and opening up, the idea of “letting some people get rich first” has produced a growing negative sentiment. It can be seen not only from individual cases, but also in the ideological and theoretical circles. The same is true for the expropriation of foreign-invested enterprises in the two recent cases I defended in Guangzhou. This is a very dangerous sign.

In fact, the risk of private enterprises also includes the risk of constitutional concepts and legislative trends. With the establishment of China’s “market economy legal system” and the eight consecutive amendments to the “Criminal Law”, a large number of criminal clauses in the market economy order have been added. To clean up and manage private enterprises, party and government agencies are increasingly used to interfering with the private economy by judicial means.

The case of judicial destruction of private enterprises

Judicial issues are very complicated. For many obvious wrongful convictions, due to the complexity of the elements of legal right and wrong judgment and the difference in concept, there has been no socially accepted conclusion, and it has become very difficult to expose and investigate. The control and guidance of public opinion also made it impossible to uncover a large number of shady stories.

Recently, Caixin Media (Weibo) held a seminar on judicial risk of private enterprises in Beijing, and presented a number of cases and evidence in detail. Among them, the Wuhan Wanquan City Real Estate Project Lou Hengwei case, the Jiangsu Muyang Group Xu Ronghua case, the Tianjin Bohai Group Zhu Menghe case, the Heilongjiang Yichun Guangming Group Feng Yongming case, and the Hubei Jingzhou Tianfa Group’s case of Gong Jialong have been rehabilitated. Cases such as the case of Yang Jinde of Nanyang Aoben Company and Yang Jinde’s “gang-related” case show that the methods of deprivation of private enterprises are very bad.

Among them, there is only one case of Tianfa Group, which has been completely rehabilitated and acquitted. Shortly after Gong Jialong, chairman of Tianfa Group and chairman of the Petroleum Chamber of Commerce of the All-China Federation of Industry and Commerce, was arrested in 2006, the Jingzhou Municipal Government took an emergency action. Gong Xian was sentenced to one year and seven months in prison. After appeals, the court commuted his acquittal, but all the property of his listed company S*ST Tianyi has been deprived. On November 22, 2006, Gong Jialong and Tianfa Trade Union held 65% and 35% of the shares of Tianfa Group respectively. By the time he was released, the property looting had been completed. These entrepreneurs are actually very kind Chinese. Such cases have occurred in all provinces and regions across the country, and a large number of them are not as lucky as him, and it is impossible to rehabilitate them.

In the case of Jiangsu Muyang Group, the facts are also very clear. The chief prosecutor went to the detention center to force entrepreneurs to sign contracts to sell equity at a low price; The highest authority of a private enterprise is its general meeting of shareholders, not the government or party committee. Such illegal interference with the autonomy and property rights of private enterprises is a serious violation of the law. The “Legal Daily” published “Why Is Public Power So Involved in Private Enterprises’ Family Affairs”, exposing this interference in the internal equity competition of civil enterprises. The local industry and commerce, public security, procuratorial, and discipline inspection commissions were all dispatched under the command of the top party committee.

These cases show that the use of judicial power to plunder in disguised form is already a very serious phenomenon in China today. Some scholars have vividly said that in the past it was “beating the local tyrants and dividing the land”, but now it is “beating the local tyrants and returning to the government”. After the fight, the property wil not enter the state treasury, the government wil become rich, and the entrepreneurs wil be finished. In some places, tens of billions of dollars have been seized and seized by the government. Send a document, the illicit money and stolen goods wil not be auctioned after the court’s judgment according to the law, and the public security wil directly deal with the auction, and they also say that this is a major

achievement of cracking down on gangsters. This is the second land reform, once again depriving the rich. If the rich are wiped out and driven away, there will be no economic motivation, no capital, and if you return to the old path before the reform and opening up, there wil be serious sequelae in two or three years, and social debt wil be very serious. “The result is to seriously destroy social productivity and achieve common poverty.

The current risk factors of China’s private enterprises

Looking back at the current risk sources of Chinese private enterprises, what are the

factors?

The first is the risk of political ideology. The absolute egalitarian trend of thought in the revolutionarv beriod would rather be poor together than let others get rich first. The rich are sinners. It is believed that being rich is definitely not benevolent, and only by destroying the rich in the world can there be social justice. This is a kind of rogue proletarian thinking. “Equalizing the rich and the poor” is their simple ideal, and the result will be that society will re-enter common poverty.

The second is the risk of expanding blackmail. China’s private enterprises have grown spontaneously from the environment of public ownership and planned economy. Many private enterprises have certain original sins. Decades of corporate and personal failures, centralized liquidation and accumulation, no entrepreneur can withstand such scrutiny. In some local jurisdictions, individual criminal acts in normal enterprises are characterized as criminal bases and criminal capital tools formed for the purpose of committing crimes. Completely disregarding the fact that it has been operating legally for decades, the corporate wealth will be confiscated as soon as a person is convicted of a crime. The accumulation of wealth in private enterprises always has some inherent problems. In the past 30 or 40 years, some security guards have always beaten people, evaded taxes by themselves, and improperly handled accounts… It is easy to find a few charges. Accumulate a pile of charges, you can put on the hat of the underworld. With this set of hats, people can be killed or sentenced to life, and all property can be confiscated.

The third is the transfer of wealth and power. In the past, social wealth could be redistributed through violent revolution, but now it is impossible to redistribute wealth through judicial means, and use public power and judicial machinery to redistribute and redistribute wealth. The large number of cases that have occurred across the country fully illustrate this real risk.

The fourth is the risk of politicizing economic behavior. Today’s entrepreneurs have to approve a project, obtain various licenses, deal with mayors and county magistrates, and in an environment of widespread corruption in officialdom, they must succumb to power rent-seeking. There is no way to avoid government power in all corporate actions in China. Many behaviors of entrepreneurs are mixed with administrative power, resulting in a lot of power rent-seeking. Once the official bribery case broke out, entrepreneurs are all bribes. Many entrepreneurs now have accidents because officials are involved in crimes, involving bribery.

The fifth is the risk of officials’ short-term performance outlook. Infighting in the officialdom brought disaster to Chiyu. When I become mayor and county magistrate, I hope that when I take office, I can come up with several major projects, which are good for my image and career. A new official often has his own circle of entrepreneurs who want projects and opportunities to make a fortune. Therefore, the original regional projects should be reshuffled. Such a kind of infighting between new officials and old officials over projects, the power will be restored. The infighting caused by the configuration also caused some entrepreneurs to have accidents.

The sixth is the concept of a planned economy, where power intervenes in private enterprises. Many officials are accustomed to using public ownership thinking, managing private enterprises as state-onouromor/omorees in the use of dower. And wanton meddling in the internal affairs of private enterprises. There is no basic corporate law legal concept. They do not respect the operating autonomy and private property rights of private enterprises, and never understand that the highest authority of a private enterprise is its own general meeting of shareholders.

The seventh is that people don’t pay much attention to – the pan-criminal legislation of crimes in China’s criminal law today. Since the implementation of market-oriented reforms in China, one of the features of the establishment of a market economy legal system is the highly developed “economic criminal law”. The Criminal Law has been amended eight times, adding hundreds of crimes related to market economic order. It should be admitted that in a country where the judiciary is clear and judiciary strictly guarded, the refinement of such charges will not jeopardize the operation and survival of enterprises. It is very beneficial to standardize the behavior of market economy. However, today’s judicial personnel in China have serious corruption and rent-seeking problems, and their legal literacy and level are not high. The expansion of such crimes has greatly increased the space for judicial personnel to fall into crimes and conduct power rent-seeking.

The eighth is extortion from the corruption of the executive and judicial powers.

Serious harm from judicial risk

What are the consequences of these risks for private enterprises? (1) It has led to a large number of unjust, false and wrongful convictions, resulting in a large number of destructive cases. For example, the unjust case of Hubei Tianfa Group, the Wuhan Wanquancheng case, the Jiangsu Muyang Group case, the Tianjin Bohai Group Zhu Menghe case, the China Furniture King, and the actual controller of the Guangming Group, Feng Yongming. In fact, going a little further, there are also the Mou Zhong case, the Yang Rong case, the Jiangsu Tieben case, and the Huang Guangyu case, who have been complaining and arguing for a long time and seem to have reached a conclusion. The handling of their property and the characterization of their charges are worth exploring. The place. (2) It triggers the emigration and capital flight of a large number of successful business people. Uncertainty about property  and personal safety has caused many private entrepreneurs to emigrate overseas. According to the “2011 China Private Wealth Report” jointly released by China Merchants Bank and Bain & Company, 27% of entrepreneurs with investable assets of more than 100 million yuan in China have invested in immigration. But in fact, according to our daily understanding, up to 60%-70% of the rich have immigration tendencies. Without perseverance, there is no hope for a country and nation that cannot retain the rich. Their main motivation is that they are afraid that China’s policy of killing the wealthy, “killing local tyrants” will come at any time, and they are afraid of the plunder of private economic wealth caused by conceptual factors. The investment immigration of such people will cause the greatest damage to the national economy, production capacity and employment. (3) Without a sense of security, private enterprises have no long-term plans, and manufacturing, innovative industries, and long-term industries shrink. No business feels safe and legal property can be preserved. This leads to the short-term behavior and speculative psychology of private business owners, and has no intention to engage in long-term industries and basic industries. financeSpeculative, short-term profiteering, and power-based profits are prevalent, and the short-term behavior of enterprises is serious. They are all short-term speculative competitions, not efficiency competitions and innovation competitions. (4) T a n and stahle sunort China’s profiteering, and power-based profits are prevalent, and the short-term behavior of enterprises is serious. They are all short-term speculative competitions, not efficiency competitions and innovation competitions. (4) The national economy lacks long-term and stable support. China’s private economy already occupies an important proportion of the national economy. More than 70% of the fiscal revenue of some coastal provinces relies on the taxation of private enterprises and private enterprises. The state-owned economic profit model mainly relies on monopoly rights, licensing rights, pricing rights, and exclusive ownership of natural resources. The country has become inseparable from the private economy. If judicial injustice will hinder and destroy the private economy, the momentum of national economic development will be seriously affected. (5) Trigger the demonstration effect of short-term social behavior. The socially successful people and the middle class have unstable ideology and lack of loyalty and sense of belonging to the country, which has a great negative impact on the mentality of the entire society. The society lacks a stable backbone, the social mentality is impetuous, and the short-term behavior is rampant.

Effectively protect the development of China’s private economy

The judicial risk of private enterprises has a big environmental problem. If the reform of the national political system is not advanced, the concept of the constitution and the concept of ownership are not advanced, and some fundamental problems are not resolved, the private economy will never have a safe haven. Therefore, we must adhere to the path of reform and opening up, adhere to the strict protection of citizens’ private property rights, and protect and support the development and growth of private enterprises.

First, in terms of political concept, we must adhere to the path of further reform and opening up, and unswervingly adhere to the path of “letting some people get rich first” determined since the Third Plenary Session of the Eleventh Central Committee. The government can carry out a “gentle” secondary distribution of social wealth through taxation and leveraging, adjust the polarization problem, and resolve conflicts. The method of “beating local tyrants and equalizing the rich and the poor” cannot be used again to forcibly deprive the rich to achieve social justice. Through stable economic policies, efforts should be made to strengthen China’s middle class and achieve harmony based on high living standards, rather than low-level egalitarian stability in common poverty.

Second, rectify the name of private legal wealth and private ownership, and establish the legal principles and values of the sacred and inviolable private property. China’s Constitution stipulates that public property is sacrosanct and private property is equally protected. In China’s current political ethics and judicial concepts, the sanctity of public property is still adhered to, while the protection of private property is still very weak. In the bank’s credit policy and national key investment, investment in state-owned enterprises and national key projects, even if a large number of losses and huge losses are audited, neither the bank nor the finance department is responsible. And if it is invested in private enterprises and Chinese enterprises, and losses are caused, criminal law means will be used to investigate. The inequality in the concept of ownership has led to the natural inequality of judicial standards.

Third, the relationship between government and enterprises should be clearly defined, and the executive power should not interfere arbitrarily with the autonomy and property rights of private enterprises. Private enterprises have the autonomy to operate, and the executive and judicial powers cannot interfere at will. Entrepreneurs should guard themselves and avoid excessive dependence on the government. Government actions should be made public, rules of affairs should be procedural, and room for rent-seeking should be reduced. Although our general environment is a power economy, which cannot be changed for the time being, private enterprises should try their best to keep a distance from the government, especially not to cater to power rent-seeking, bribery and collusion.

Fourth, ensure an independent and fair judicial mechanism and uphold judicial impartiality. The courts are the last line of defense in safeguarding social justice. In a country, if the judiciary is independent and impartial, any administrative abuse of power can stop in the courts, get judicial review and correction, and there will be a final check on wrongful convictions. But in China, this mechanism has basically failed now. Because China’s courts have always emphasized that “the public security, procuratorate and law are closely cooperating in combating crimes”, under the unified leadership of the Political and Legal Committee of the Party Committee, the secretary of the Political and Legal Committee is concurrently served by the chief of public security, and the opinions of the public security department will directly become the judgment of the court. Therefore, once a mistake is made, there is bound to be a mistake in judgment. Because the court cannot review the behavior of the police in handling the case. Especially in cases where the secretary and the mayor directly intervene, the courts are almost at their mercy. There are also cases that are directly investigated and handled by the Disciplinary Committee, and the courts are even less capable of reviewing and checking.

Fifth, play the role of lawyers and the role of public opinion supervision. Judicial injuries to private enterprises are complex, and they are quite professional in legal understanding. Judging from the current judicial practice, all major cases of judicial and administrative abuse of power against private enterprises, and typical cases of violation of private enterprises, were discovered by professional lawyers after reviewing, representing, and defending in accordance with the law. Professional legal issues can only be identified, exposed and corrected after being reviewed by professional personnel. At the same time, it is useless to rely on lawyers to speak in court. Some bad cases have to be made public, so that the society can know the truth and restrain judicial abuse of power and violations of laws and disciplines. Only with the strong support of public opinion can the shady be exposed to the sun and produce a huge containment force.

Sixth, severely punish judicial corruption. For those policemen, prosecutors, and judges who interfere with power and harm private enterprises with impure motives, who violate the law and discipline, deliberately create unjust, false and wrongly made cases, and use judicial power to plunder wealth, they should be held accountable and punished. At present, the punishment of judicial corruption is mainly limited to the bribery of judicial personnel. Those who deliberately fabricated false cases, abused their power to persecute innocent people, and created unjust cases were basically not investigated, and those who used judicial power to help plunder wealth became more and more reckless.

Seventh, considering the simplification of economic criminal law, the standard of criminalization should be raised to prevent the phenomenon of pan-punitiveism in which the whole people violate the law. This is a reflection on the concept of criminal law. For three decades, we have been adding criminal charges. Every amendment is adding crimes, and after each amendment a group of business owners are caught in the law. On the positive side, this safeguards market economic procedures; on the negative side, this phenomenon leads to substantial corporate crime risks. In this part of economic criminal law, there are many paradoxical criminal law standards, and some crimes are too finely divided, which is not conducive to convicting crimes according to the principles of absorbing offenders and implicated offenders. Judging from the current price conditions and economic behavior standards, the starting point of the penalty has seriously deviates from reality. For example, the “10,000-year sentence” for bribery and embezzlement is seriously out of touch with reality. Because the standard of bribery and the standard of bribery are the same. If you send a card worth a few thousand yuan this holiday, you can arrest people now. Shuanggui for half a year, and the company will be the suspect of bribery. If you investigate this way, an entrepreneur and a company will be finished. With such a low standard of crime, the result is that the law does not blame the public, everyone is a criminal suspect, and everyone will not be ashamed of crime and will not respect the law. Therefore, the standard of economic criminal law is a big issue that must be revised a s soon a s possible.

Eighth, be good at resolving conflicts and disputes in market behavior by means of civil law and administrative law. The vast majority of serious incidents that infringe upon the rights and interests of private enterprises that occur now are the direct use of criminal law to adjust legal disputes that were originally regulated by civil law and administrative law. This is an important type of wrongful conviction. The legal norms of the market economy are largely civil law norms and administrative law norms. Criminal law norms are only the last and most severe means, and generally cannot be used easily. It is necessary to remind the public security organs and procuratorial organs to strictly control the filing of market economic crimes, and try to prevent abnormal filing of cases driven by human relationships.

Ninth, it is necessary to prevent the movement of justice, especially to prevent the expansion of “striking underworld”. The concept of underworld crime must be strictly limited to the formation of companies for the purpose of underworld involvement, rather than accumulating the crimes involved in normal enterprises year by year, turning them into “underworld organization bases”. National judicial standards must be stable and rational over the long term, balancing the macroeconomic behavior of society as a whole. (The author is the deputy director of the Constitutional and Human Rights Committee of the Al China Lawyers Association, a first-class lawyer) Return to Tencent.com homepage >>