Is it a legal transfer of equity or is it suspected of selling land?

Liu Yonghui, president of Zhejiang Merchants Chamber of Commerce, invested in real estate hotels and was arrested and imprisoned on suspicion of reselling land use rights.

As we all know, the real estate industry is related to the national economy and people's livelihood. Every policy, new regulation and new trend of a certain department has triggered economic shocks and affected everyone's life. In the world of real estate, laws and regulations are chaotic, policies are numerous, and the game is complex and fierce.

Not long ago, new news came from Wuwei County, Anhui Province: Liu Yonghui, a member of Zhejiang Merchants and Wenzhou Chamber of Commerce in Anhui Province, legally invested in real estate in Wuwei County, Anhui Province, but was arrested and imprisoned on suspicion of reselling land to transfer the equity of real estate. Many news media in China have received letters from Zhejiang and Anhui Chambers of Commerce, as well as Liu Yonghui, a member of Zheshang Chamber of Commerce and Wenzhou Chamber of Commerce, reflecting this incident. The letter said that her husband was arrested and imprisoned on suspicion of reselling land use rights, which was related to economic and social development and the environment for attracting investment and could not but attract the attention of the news media.

Recently, many media reporters such as People's Daily, China Economic Weekly, Xinhua News Agency and Economic Information Daily went to Wuwei County to cover and investigate this incident.

Context: Sincerely moved by investment, assets were seized and detained.

Why would a Zhejiang businessman invest in Wuwei County, and why would he go to jail for his investment? According to the letter, from 2008 to 2009, leaders of the county party committee, county government and county investment promotion bureau in Wuwei County, Anhui Province talked with Liu Yonghui 28 times, inviting Zhejiang businessman Liu Yonghui to invest in Wuwei County. Liu Yonghui was moved by the sincerity of the leaders of Wuwei County and decided to invest in Wuwei County.

In Wuwei County Administration for Industry and Commerce, the reporter consulted the relevant information of Anhui Wuwei Hongri Real Estate Development Co., Ltd., and learned from it that on July 22, 2009, Liu Yonghui and Huangshan Tourism Group Co., Ltd. obtained the state-owned land use right of Wuwei County No.2009-3 according to law through public bidding. The land area is 46200m2, including 39,350m2 for construction. The land is planned by the government to build a four-star hotel and six high-rise residential buildings, and Liu Yonghui will also pay the Wuwei County People's Government.

In September 2009, Liu Yonghui and other four people initiated the establishment, raised funds of 6,543,800,000 yuan, and registered Anhui Wuwei Hongri Real Estate Development Co., Ltd. (hereinafter referred to as Hongri Company), with Liu Yonghui accounting for 55% of the company's equity and Liu Yonghui as its legal representative. After the establishment of the company, Hongri Company paid 6.5438+0485 million yuan to Wuwei County Land and Resources Bureau, and Hongri Company signed a contract with Wuwei County Land and Resources Bureau.

After the meeting of Wuwei county government, the company decided to build a four-star hotel project. On September 6, 20 1 1, the company obtained the land use right certificate according to law. 20 1216/0, the company obtained the pre-sale permit for Building 6 and started to sell, and other buildings also started to sell.

The reporter learned that during this period, the company's equity has undergone a series of changes. The other three shareholders initiated by the company withdrew their shares, the Wuwei county government worked in Liu Yonghui, and Liu Yonghui bought 30% of the shares of the other two shareholders (Liu Yonghui's shares were 85% after the purchase). After that, 22% of the shares were transferred to Xu, and another shareholder of the company transferred 65,438+05% of the shares to, and Xu transferred 22% of his shares to the current shareholder Ni Shiming, and then quit the company. In this way, Ni Shiming obtained 22% equity, Zhu Bin obtained 37% equity and Liu Yonghui retained 465,438+0% equity.

According to the company's relevant information, on March 2, 20 12, Ni Shiming took advantage of the actual controller of his company to purchase 37% of the equity of Zhu Bin with the company's expected facade house and two houses with an area of more than 2,000 square meters of 70 million yuan. 201265438+1October 17 Company started to sell Building No.6, and Ni Shiming directly offset part of the money from the house payment for his huge personal usury debt. By February 20, 20 12, Ni Shiming had embezzled more than 27 million yuan from the company's housing sales, and when the company 1-5 building opened, the purchase subscription of the buyers was about 400,000 yuan, which was directly credited to Ni Shiming's personal account. At the same time, Ni Shiming asked his wife Jiao Ling to be the supervisor of the company, and opened an account in Wuwei County Industrial and Commercial Bank in the name of Liu Yonghui, the legal representative of the company. By February 20, 20 12, more than 6.6 million yuan had been paid for the house.

After discovering Ni Shiming's illegal and criminal behavior, Liu Yonghui reported Ni Shiming to Wuwei County Public Security Bureau and had a serious conflict with him. Wuwei County Public Security Bureau not only failed to file a case for investigation on the well-documented problems, but on March 23, 2002+2065438, it was criminally detained on suspicion of illegally transferring land use rights (Liu was identified as reselling the company's land use rights). 20 12 On April 27th, Wuwei County Procuratorate arrested Liu on the same charge, and the pre-trial police of Wuwei County Public Security Bureau clearly informed that they would exhaust the investigation time limit of public security organs, use procedures, delay the detention time, and demand to hand over the equity transfer money.

In Wuwei County Public Security Bureau, a person in charge of the Economic Investigation Brigade told reporters that county leaders and the Public Security Bureau attached great importance to Liu Yonghui's case. Liu Yonghui repeatedly reported Ni Shiming's embezzlement of company funds to the county public security bureau, but because there was no criminal fact, he did not file a case.

So, why does Liu Yonghui want to transfer its equity? According to the reporter's letter and the company's field investigation, in June of 20 1 1, Ni Shiming coerced Liu Yonghui to sign the Agreement on Transfer of Creditor's Rights and Equity, demanding Liu Yonghui to transfer 30% of the equity, but failed to pay Liu Yonghui the equity transfer fee as agreed. On October 2011September18th, Ni Shiming took the minutes of the shareholders' meeting of Anhui Wuwei Hongri Real Estate Development Co., Ltd. to go to Wuwei County Industrial and Commercial Bureau to register the change of equity, forged Liu Yonghui's signature and transferred 30% of the equity held by Liu Yonghui to himself.

So, why does Ni Shiming need Liu Yonghui to transfer the equity so urgently? Many letters believe that one of the reasons is that Ni Shiming wanted to borrow money from the bank to repay usury with land mortgage, so he forged the signature and power of attorney of Liu Yonghui, the legal representative, and wanted to mortgage the company's land use right, which was stopped by Liu Yonghui in time. Now, after Liu Yonghui was detained, Ni Shiming became the controller of Hongri Company, and his wife Jiao Ling also became the legal representative and executive director of Hongri Company. The company has become the property of Ni Shiming and Jiao Ling.

When checking the company information, the reporter found that a limited liability company's application for change registration on September 1 18 had Liu Yonghui's signature; Minutes of shareholders' meeting and articles of association of Wuwei Hongri Real Estate Development Co., Ltd. signed on the same day; The equity transfer agreement in which Party A is Liu Yonghui and Party B is Ni Shiming is obviously not written by one person.

It is understood that among the materials for changing Liu Yonghui's 30% equity, there are many materials that need Liu Yonghui's autograph, as well as Liu Yonghui's autographs in various fonts. Why did Wuwei County Administration for Industry and Commerce turn a blind eye and still register for change? The reporter doesn't know.

Experts' explanation: the equity transfer cannot be regarded as reselling the land use right, and Liu Yonghui did not resell the land use right in this case.

After the Liu Yonghui case, he was arrested and imprisoned on suspicion of selling land use rights. Is the transfer of equity within an enterprise a reselling of land use rights? The letter from Zhejiang Chamber of Commerce raised a question: Liu Yonghui, an investor, obtained the land for the project through legal bidding organized by the government. The project company has a legal land transfer contract with the government land and resources bureau, paid all the land transfer fees, and actively built development projects. Although there are acts of transferring shares, they are all transferred in accordance with the provisions of the Company Law, and the industrial and commercial departments have also registered changes according to law, and there is no illegal transfer of land or reselling of land. This kind of equity transfer is common all over the country. The law promulgated by the National People's Congress and the relevant judicial interpretation issued by the Supreme Court have never determined that this kind of equity transfer is equivalent to illegal land reselling rights. Therefore, this kind of equity transfer is a legal act protected by law. Is it reasonable and legal for Wuwei County Public Security Bureau to detain Liu Yonghui?

Regarding whether the legal transfer of shares or suspected reselling of land use rights constitutes a crime, famous experts in criminal law in Beijing (Professor of Peking University Law School, Professor of Tsinghua University Law School, Professor of China Academy of Social Sciences, Chen Zexian), experts in property law and company law (Professor Sun and Professor Chen Su from the Institute of Law of Chinese Academy of Social Sciences) conducted expert argumentation on the case.

In the sense of economics and law, the boundary between equity transfer and land transfer is very clear, but the transfer of virtual capital often means the transfer of physical capital control, thus blurring the boundary between them. Fuzzy boundaries often lead to fuzzy understanding, which in turn leads to operational errors. For example, some people think that when transferring shares between shareholders, the land use right included in it is also transferred, which should meet the conditions for the transfer of land use right, and handle the land change registration and pay the relevant land taxes and fees. Otherwise, it will lead to the absence of land management functions and the "loss" of state-owned land assets. According to this logic, there are a lot of equity transactions every day, among which there are not a few state-owned or state-controlled companies. Isn't the loss of state-owned assets happening every day? Isn't equity trading a means to circumvent the law? Stock trading of listed companies is actually equity transfer. According to this logic, listed companies should go through the formalities of land use right transfer immediately after each stock transaction, which is obviously absurd. It is necessary to clarify these misunderstandings from the current laws and theories. Experts attending the meeting agreed that Liu Yonghui's transfer of equity in this case cannot constitute the crime of illegally transferring or reselling land use rights. The reason for this is the following：

1. Equity and land use right are two different rights and cannot be confused.

Equity is the property of shareholders and can be freely transferred according to the company law. The land use right belongs to the company's property and may not be illegally transferred. Shareholders' property and company property are independent of each other.

2. The object of the crime of illegally transferring or reselling the land use right is the land use right, not the company's equity.

As the object of the crime of illegal transfer of land use right, the land use right has been under the control of the company in this case and has never been transferred or resold; Before and after some shareholders transfer some shares, the legal subject enjoying the land use right is the company. In other words, this case does not involve transfer or reselling at all, let alone "illegal transfer or reselling".

3. Equity transfer is not the transfer of land use rights.

Article 138 of the Company Law stipulates that the shares held by shareholders can be transferred according to law. The Company Law also has no restrictions on the equity transfer of specific objects. Article 228 of the Criminal Law also does not prohibit "the transfer of land use rights by means of equity transfer". As the cornerstone of criminal law, the principle of legality must be observed.

4. If it is determined that the transfer of equity constitutes the crime of illegal transfer and reselling of land use rights, a very absurd conclusion will be drawn.

If we think that share transfer is the transfer of land use rights, then the whole real estate industry can't transfer shares or go public, because both share transfer and listing are the transfer and sale of shares, which will inevitably cause all the people involved to be suspected of committing crimes, and it is obvious that real estate companies in the stock market should withdraw from the market.

Mystery: two sides resell, one side is punished, and the reporter's interview is blocked.

In the investigation of Liu Yonghui's case, some mysteries are puzzling:

1. Zhejiang Chamber of Commerce sent a letter questioning: Ni Shiming encroached on the company's funds of tens of millions of yuan (with accounts to check), which constituted the crime of occupational embezzlement. Liu Yonghui reported the case to the Public Security Bureau many times. Why didn't the public security department accept it? Ni Shiming used Liu Yonghui's signature to illegally change 30% of Liu Yonghui's equity, and Liu Yonghui reported it to the Industrial and Commercial Bureau and the Public Security Bureau. Why don't both units care? Ni Shiming repeatedly threatened Liu Yonghui and his lawyer. Why did the county public security bureau turn a blind eye to these well-documented reports from Liu Yonghui?

Second, the equity transferred by Liu Yonghui finally fell into the hands of Ni Shiming, making Ni Shiming the legal controller of the company. Ni Shiming is the actual beneficiary of equity transfer. If Liu Yonghui is guilty of reselling land use rights, then Ni Shiming also participated in the reselling. Now why is Liu Yonghui arrested and imprisoned, but Ni Shiming can enjoy the benefits of equity?

Thirdly, Liu Yonghui was detained for selling land, which directly affected the local investment environment and worried foreign investors. Considering the good investment environment, the local government should also inform the society of this case to set the record straight. However, when interviewed by Wuwei County Public Security Bureau, the Political Work Section of the Public Security Bureau required reporters to go through the Propaganda Department of Wuwei County Committee before interviewing. Journalists who want to pass these approvals are often turned away.

The development of real estate industry has brought historic opportunities to the urban construction of China. The living conditions of urban residents have been improved. Land transfer has accumulated funds and provided timely and powerful support for urban infrastructure construction. This is a very great achievement. On the other hand, the unprecedented prosperity of urban real estate industry has attracted a large number of farmers to work in cities. This will have far-reaching positive significance for rural economic and social development and narrowing the gap between urban and rural areas. Now the case of Liu Yonghui has been returned to the Public Security Bureau for supplementary investigation by Wuwei County Procuratorate twice, and Liu Yonghui has been detained for nearly half a year.