China: 朱勇辉、聂素芳律师办理的近2亿元虚开增值税专用发票案收到不起诉决ऩ

Last Updated: 29 July 2019
Article by King & Capital Law Firm

 近日,京都律师事务所主任朱勇辉律师及合伙人聂素芳律师办理的某化工企业员工(以下化名化某)涉嫌虚开增值税专用发票一案,在案件一审开庭审理结束近9个月之后,检察机关向法院撤回对化某的起诉,法院做出了准予撤诉的裁定。一周后,检察机关对化某做出了不起诉决定。

本案是典型的石化行业变票类案件,公诉机关指控,涉案企业之间在没有真实货物交易(认定无真实交易的主要理由为无真实的仓储和运输)的情况下,采取资金回流、虚假支付的手段,虚开增值税专用发票,涉案价税合计近2亿元。

 朱勇辉、聂素芳律师在案件进入审判阶段才接受委托。接受委托后,两位律师通过向当事人了解情况并详细查阅案卷材料后发现,虽然本案涉案的交易流程中多家贸易企业没有进行真实的货物运输及仓储,但各交易环节的上下游企业之间均按照提单贸易的模式进行了物权转移交割,实际上是完成了货物的交付。更重要的是,辩护人通过向当事人所在单位调查了解,结合案卷中已有的材料发现,本案确实存在真实的货物来源,并非起诉书指控的没有真实货物交易。而中间某些企业变票的环节(化某所在企业没有参与变票),虽然可能造成消费税的流失,但此种行为应定性为逃税,应先由税务机关处理。其次,对于资金流向,两位律师通过逐笔梳理涉案资金流转金额及去向,指出本案不存在起诉书指控的资金回流。此外,律师还发现,从案卷材料来看,本案所有的交易均是企业与企业之间的交易,而化某并非其所在企业的业务负责人,对相关涉案业务并不清楚,不应对与业务有关的相关行为承担刑事责任。在上述事实的基础上,律师在法庭上对化某做了不构成虚开增值税专用发票罪的辩护,并通过向单位取证以及摘取案卷中的相关材料,向法庭提交了能够证明本案存在真实货物以及真实物权交割的相关证据。最后,在梳理上述事实的基础上,律师更是指出本案的实质,即此类变票类案件的整个交易过程中,行为人主观上不存在虚假抵扣增值税款的目的,客观上也未造成国家增值税款的损失,不应以虚开增值税专用发票罪论处。

最终,经过朱勇辉、聂素芳律师的专业辩护和不懈努力,在案件开庭结束近9个月后,检察机关对化某做出了不起诉决定。

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