China Business News "Is Deep Line" Reporter Feng Li Beijing report
Both chairman of a bank were both dismissed and were accused of huge amounts of embezzlement. Hengfeng Bank, whose headquarters was originally located in Yantai, Shandong, wrote itself into the history of China's financial anti-corruption in such an inappropriate way.
"Isolid Depth Line" (ID: depthpaper) The reporter learned from multiple sources that the case of Jiang Xiyun, former chairman and secretary of Hengfeng Bank, will usher in the second trial in the near future. In the first-instance judgment, Jiang Xiyun was found guilty of four crimes: embezzlement, bribery, illegal issuance of financial notes, intentional destruction of accounting vouchers, and accounting books. He was eventually sentenced to death with a two-year reprieve and life imprisonment, and was not allowed to reduce sentence or parole. Among them, the court found that Jiang Xiyun's embezzlement amount was as high as more than 754 million yuan.
This is due to the conversion of more than 283 million shares of Hengfeng Bank. These in vitro equity outside Hengfeng Bank have been transferred three times: because the China Banking Regulatory Commission requested that it was not allowed to hold it on its own, it was first held by companies within Shandong Province, and then moved to companies outside Shandong Province to hold it on its own, and finally moved to companies under the name of Jiang Xiyun's relatives and friends.
In the first trial, Jiang Xiyun's side defended that despite the many transfers, these shares were always held by Hengfeng Bank, and when he left office, he had handed over to his successor three times. The testimony of the successor stated that there was no handover. After the first instance verdict was announced, Jiang Xiyun immediately appealed without accepting the verdict.
At this moment, Jiang Xiyun, who was 71 years old at the time, may have realized that this was a fatal "proxy" and extracorporeal circulation. Despite such operations, it is not uncommon in China's financial, capital and business fields. As a result, Jiang Xiyun's defense lawyer submitted new evidence, hoping that the Shandong High Court, in the second instance, would open trial of the case. His attorney said that in the second instance, Jiang Xiyun would be defended innocence, and he had submitted a defense statement to the court.
71-year-old Jiang Xiyun, what will his fate be? Where do in vitro shares come from?
In the first instance, the equity of Hengfeng Bank that was considered "corruption" was held by Jiang Xiyun's affiliated person, which is more than 283 million Hengfeng Bank's equity that Jiang Xiyun said was "always held by Hengfeng Bank." The source of the source can be traced back to 18 years ago.
"Isometric Line" reporters showed that in 2002, the former Yantai Housing Savings Bank was reorganized into a state-owned joint-stock commercial bank. During the restructuring process, most of the introduced shareholders were local enterprises. Due to the lack of funds for the investing companies, the bank provided loans to some enterprises as investment funds.
Due to insufficient shareholders, all employees raised more than 158.6 million yuan and set up three companies locally in the name of some employees. The three companies each invested 50 million yuan to subscribe to 50 million shares of Hengfeng Bank, totaling 150 million shares.
In addition, the bank also used acceptance bills to discount and subscribed in the name of Jining Shitong Chemical Fiber Textile Co., Ltd. and Jining Sinopec Petrochemical Co., Ltd. to hold 30 million shares on behalf of others. In 2003, the restructuring was completed and officially renamed Hengfeng Bank.
banking industry insiders told reporters that this practice was not uncommon during the last round of local bank reforms. A rural commercial bank in Liaoning also had similar operations during the restructuring process, and subsequently, it also caused corresponding disputes.
At the end of 2004, Hengfeng Bank's above problems were discovered by the China Banking Regulatory Commission and issued a document requiring rectification within a time limit.
To this end, Hengfeng Bank has decided to: for shareholders who do not return the loan, their shares will be taken back and then transferred to the outside world to repay the loan; cancel the above three self-run companies, first contact the company to hold the 150 million shares, and then find a suitable opportunity to transfer and clear the employees' fundraising funds.
After that, the equity transfer begins. In 2005, the above 150 million shares and 30 million shares held on behalf of others, as well as some shares held on loans by other shareholders, were transferred to the name of local affiliated companies for holding on behalf of others. After 2007, the local branches of Hengfeng Bank contacted companies from other provinces and the above-mentioned shares held by local companies were handed over to companies from other provinces. During this period, part of the funds transferred from the shares and the dividends of the self-run company's shares were totaled 169 million yuan, and the employees' fundraising funds were cleared.
In the investigation, the judicial authorities found that in the process of real transfer of some shares of the loan shareholders, Jiang Xiyun adopted back-to-back transactions, from which they earned a large amount of off-book funds by earning the difference, transferring shares with dividends and bonus shares at high prices, and controlling cash dividends. Jiang Xiyun also used Qingdao Hyatt Investment Management Co., Ltd., a self-organized company of Hengfeng Bank, and established Jiangyin Hengxin Investment Consulting Co., Ltd. as a funding platform for operating Hengfeng Bank shares to receive and pay related funds.
From the initial processing of self-held shares and loan shareholder shares, shares become money. As one of the 12 national joint-stock commercial banks, Hengfeng Bank expanded rapidly after its reform. Correspondingly, this "back-to-back transaction" has brought value-added, and a common ex vitro circulation model for a bank has been established.
judicial materials during the first instance showed that Jiang Xiyun, his defense lawyer and several former Yantai City leaders testified that during this operation, the Yantai Municipal Government had asked to ensure the status of a major shareholder of his state-owned assets. From beginning to end, Hengfeng Bank has maintained a "controlling" position in terms of equity structure.
The lawyer in the second instance of the case believes that according to the articles of association of Hengfeng Bank, only if the shares controlled exceed 30% can the veto power be exercised, that is, the bank can be controlled. The Yantai Municipal Government holds 20% of the shares, which cannot reach the level of exercise of veto power. This requires external administration.
-generation risk and "handover"
From January 2008 to January 2013, during Jiang Xiyun's tenure as chairman of Hengfeng Bank, more than 283 million shares of Hengfeng Bank were successively transferred to the names of his personal or relatives and friends' companies. After the first instance, it was found that "concealed" was calculated based on the net assets per share in the annual report of Hengfeng Bank in previous years, equivalent to more than RMB 754 million.
The judicial materials mastered by the reporter show that the so-called "companies controlled by individuals or relatives and friends" actually point specifically to Jiangsu Zhengyang Real Estate Co., Ltd., Nanjing Yuanlong Construction Engineering Co., Ltd., Jiangsu Sunshine Zijin Investment Co., Ltd., and Xu Gaoxiang's registered and established Beijing Huijin Taixin Investment Co., Ltd. and Nanjing Zhongjin Putai Investment Consulting Co., Ltd.
Zhu Mingliang is Jiang Xiyun's "friend", while Xu Gaoxiang is Jiang Xiyun's son-in-law.
In addition, Jiang Xiyun registered and established in the name of his relatives, friends and others, such companies as Nanjing Duirun Investment Co., Ltd., Nanjing Yurong Investment Co., Ltd., Nanjing Beimin Investment Co., Ltd., Nanjing Yunhao Investment Co., Ltd., Nanjing Heyan Investment Co., Ltd., etc., which are specially used to hold the above-mentioned shares of Hengfeng Bank. These proxy holding relationships such as
have been determined by the first instance court and have been written into the judgment. The prosecution also accused that the above-mentioned company signed a transfer agreement and filed it with Hengfeng Bank when it took over the shares, but did not actually pay the transfer funds.
Jiang Xiyun's side has a different understanding of this operation. Jiang Xiyun's defense lawyer pointed out that under the requirement of ensuring "absolute control of state-owned assets", it is necessary to comply with regulatory rules that cannot be self-supported and the best way to avoid external agency losses, that is, register a company with controllable relatives and friends to carry out agency management. Because of the holding on behalf of others rather than real sales, there is no need to pay the transfer funds.
In addition, Jiang Xiyun's defense also believes that due to the openness of the shares itself, concealment and embezzlement can be achieved only by selling shares at a discount. The act of not actually paying the transferred funds can just reflect that it does not have the purpose of illegal possession.
The "external holding operation" adopted in Hengfeng Bank's restructuring has indeed caused risks. During the first trial, Jiang Xiyun recalled that a textile company in Zhejiang once held 30 million shares for Hengfeng Bank. Later, he was sued for external guarantees, which led to the court's execution of the holding of shares, which led to more than a year of efforts by many parties before the shares were taken back.
Jiang Xiyun told the court that Hengfeng Bank legal advisor Fu Moumou, Hangzhou branch president Yang Moumou, and vice president Zhao Moumou, both understand the process.
In addition, a construction company in Nanjing held 129.8 million shares for Hengfeng Bank, and as a result, it was used for loan pledge, resulting in the inability to transfer for a long time.Jiang Xiyun said that for external agent companies, the sale of shares requires tax and transfer, and the sale consideration must be paid first to pay the account of the agent company, which is also easy to be misappropriated.
What is particularly important is that because this kind of agency holding violations itself, it is extremely risky to allow irrelevant external companies to hold on behalf of others, and the bank has reported it in history, which has caused investigation and punishment by regulatory authorities. Therefore, the above-mentioned holdings of relatives and friends are actually an inevitable choice for risk control of in vitro shares.
After that, Jiang Xiyun stepped down as the leadership position of Hengfeng Bank. After that, these equity shares of Hengfeng Bank held on behalf of "in vitro" were not "transferred" in time and were still under the name of Jiang Xiyun's affiliated company. The reporter learned that this has also been the focus of the prosecution and used as the main basis for accusing him of "corruption".
In his confession, Jiang Xiyun said that he had proposed to hand over this part of the equity to the successor leader of Hengfeng Bank three times, but in the end he failed. Jiang Xiyun's defense once asked Luan Yongtai, who was then an executive of Hengfeng Bank, about this matter. Luan Yongtai said that Jiang Xiyun had told him about the transfer of equity to his successor.
However, the successor was also investigated after that. In relevant testimony, Jiang Xiyun's successor denied that Jiang Xiyun had proposed to hand over the holding of shares on behalf of others. Previous reports show that the two have conflicts at multiple levels.
Original sin and internal strife
shares operated in vitro and held on behalf of others have also brought quite good returns.
In 2010, after transferring 50 million shares held by two Shanghai companies, dividend bonuses and share allotment, the 269 million yuan obtained, of which 230 million yuan was used to dispose of the non-performing assets of Hengfeng Bank's Fuzhou Branch, and the others were used to pay the bonuses for employees of Hengfeng Bank.
For example, in 2013, 410 million shares held by three Nanjing companies were transferred to a Shanghai Investment Development Co., Ltd. at RMB 5.8 per share, with a total transfer price of more than RMB 2.385 billion. The money was loaned out of the body and received another interest of RMB 246 million. From a point of time, the corresponding price per share is continuing to increase, which also indirectly reflects the bank's revenue and expansion changes in recent years.
These are all included in the prosecution's accusations. According to the judgment, all in vitro operating shares and funds have been recovered and returned to Hengfeng Bank.
Based on this, the defense party believes that in the Jiang Xiyun case, there is no common personal corruption, and the only accused of embezzlement is external operation content, and this part of Jiang Xiyun himself has no hidden subjective intention, and objectively this condition does not exist. In the defense statement of
, one of the new evidence was the testimony of Luan Yongtai, former president of Hengfeng Bank. He said: "Jiang Xiyun publicly stated at the meeting at Hengfeng Bank that Hengfeng Bank still has money outside. He made a lot of money for Hengfeng Bank, and many people in Hengfeng Bank know about this." He also believes that resolving the non-performing loans of Fuzhou Branch and issuing performance wages are all in vitro funds expenditures, which also proves that what Jiang Xiyun said publicly is a fact.
Yantai City former deputy mayor Zhang Guangbo mentioned in an investigation by lawyers that Jiang Xiyun raised funds in accordance with the government's requirement to make Hengfeng Bank bigger and stronger. He did not find that Jiang Xiyun wanted to take Hengfeng Bank's assets for himself. Hengfeng Bank's funds are divided into internal and external parts, and Jiang Xiyun personally did not possess a single part.
second instance lawyer believes that according to the "Minutes of the National Court's Work on the Trial of Economic Crime Cases" of the Supreme People's Court, the key to determining the purpose of illegal possession of corruption is whether the property involved can be reflected in the accounts, and whether the perpetrator has objective manifestations of refusal to return such as concealing property, absconding with the money, etc. But these situations do not exist in this case.
second instance lawyer believes that one of the key reasons why Jiang Xiyun was sentenced to corruption in the first instance was that Jiang Xiyun did not hand over it in time after retirement, and still dispose of off-book assets and purchase an office building after retirement. However, on the one hand, even if Jiang Xiyun did not hand over after retirement, it is only a situation of realization, which can only indicate that the handover has not been completed, and it does not mean that Jiang Xiyun has not handover, or that the handover will not be possible in the future.On the other hand, retirement does not mean that he has no position. Before the handover is completed, Jiang Xiyun actually still kept the assets involved and actually enjoys the right to control the property involved. He belongs to the "other persons who engage in official duties in accordance with the law" in Article 93 of the Criminal Law. Case No. 422 of the "Criminal Trial Reference" issued by the Supreme People's Court also clarifies this. Therefore, the act of disposing of off-book assets after retirement does not indicate that Jiang Xiyun has the purpose of illegal possession.
Defense lawyer hopes to open a trial after submitting new evidence. However, the Shandong High Court recently notified the lawyer to submit a defense statement.
In August 2020, five legal circles, Gao Mingxuan, Zhou Guangquan, Gao Guijun, Ruan Qilin and Lu Jianping, issued legal opinions, believed that the existing factual evidence was not enough to determine that the defendant's behavior had the purpose of illegal possession and did not constitute the crime of corruption, and Jiang Xiyun objectively achieved the appreciation of state-owned assets through his personal operations.
What kind of fate will Jiang Xiyun, who is already 71 years old, be waiting for him?
(Editor: Hao Cheng Proofreader: Zhai Jun)
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