[Case Summary]This case is a criminal defense case of the crime of illegally occupying farmland. F * and others borrowed the qualifications of construction companies and invested in the construction of the Xinmin Residence Project in Guangming Village, ** Town, A City, which involved the occupation of arable land. The public security organ transferred the case to the procuratorial organ for prosecution on suspicion of the crime of illegally occupying farmland, and identified that the total area of farmland illegally occupied was 34.63 mu. F * entrusted Beijing Henglu Law Firm to handle the case.Liu LiqiangThe lawyer argued that F * did not constitute a crime from six aspects: F * was not a criminal subject, had no obligation to handle land formalities, lacked the subjective intent of illegal occupation, and holding him accountable would violate fairness. After the procuratorate returned the case for supplementary investigation twice, it made a non-prosecution decision on the grounds that "the facts of the crime are unclear, the evidence is insufficient, and it does not meet the conditions for prosecution". The core controversy is whether F * constitutes a crime and the identification of the criminal subject. Applicable laws: Article 177 of the Criminal Procedure Law, and Articles 7 and 8 of the Construction Law.

I. Review of the Case

Engineers are concerned about "whether construction funded by advance payments will be considered an illegal land occupation crime" and "who should be held responsible for using borrowed qualifications to carry out construction". After the investigation by the public security bureau was concluded, F * was transferred for prosecution on suspicion of illegally occupying farmland. It was determined that in 2010, the A County government promoted the new residential project. W *, F *, and H * borrowed the qualifications of Sichuan Cheng Construction and Installation Co., Ltd. to win the bid. The village committee was the development entity, and the three of them funded the construction. They occupied 87.7 mu of cultivated land and received compensation of 45,000 yuan per mu. In August 2011, the project failed to obtain land use approval and commence construction. In the fall of 2014, the first phase of the project was completed. During this period, the tailings pond (which was actually the new residential project in this case) was listed for reclamation as early as 2010, and was inspected and verified as non-mineable farmland in 2011. 工程人关注“垫资施工会被认定非法占地犯罪吗”、“借用资质施工谁担责”。经公安局侦查终结，以F某涉嫌非法占用农用地罪移送起诉认定：2010年A县政府推进新民居项目，W某、F某、H某三人借用川成建筑安装有限公司资质中标，村委会为开发主体，三人垫资建设，征占耕地87.7亩、每亩补偿4.5万元。2011年8月项目未取得用地审批开工，2014年秋一期完工。其间尾砂库（实为本案新居民）早在2010年列入复垦、2011年验收为农用地无法开采。

In August 2014, the Land Bureau of City A investigated and punished the case; in December 2019, the municipal government document allowed to handle the supplementary procedures, but they still failed to do so. After multiple appraisals, the new residential buildings and hardened ground in the case illegally occupied a total of 34.63 mu of farmland. F * entrusted Beijing Henglu Law Firm to handle the case.Liu LiqiangThe lawyer argued in defense that F* did not commit a crime and recommended that no charges be brought against him.

II. The focus of the case

  • Focus 1: Whether F * is a criminal subject in this case.Whether the construction unit (the party B) should bear the responsibility of the construction unit (the party A/the village committee) is the key to convicting them.
  • Focus II: Whether F and others have a legal or contractual obligation to handle land procedures.The subject of the obligation is either the village committee or the construction party, and the relationship involves subjective intent.
  • Focus Three: Is it appropriate to involve criminal means in projects left over more than ten years ago?The protection of legitimate interests and the policy background affect the fairness of accountability.

III. The professional intervention of Hengluo Law Firm

The suspect (F某) claimed that:F* provided funding to build new residential buildings. After going through legal bidding and obtaining the "administrative license" from the village committee, he carried out the construction according to the contract, and there was no illegality involved. He is not a criminal subject and there are no criminal facts against him. It is recommended that he not be prosecuted.

The position of the prosecution (investigative organ):It was determined that F * and others borrowed qualifications and occupied cultivated land without going through the land use formalities, and they were transferred for prosecution for the crime of illegally occupying farmland.

Hengluo Lawyer's Agency Opinion:Liu LiqiangThe lawyer launched a defense of innocence from six aspects:

  • First, F * is not a criminal subject: There are two legal relationships in this case. The village committee is the construction unit (Party A), and F * and others are the construction units (Party B). The advance payment only transfers the obligation to invest, without obtaining the main body qualification of the construction unit. The investigation organ confuses the identities of the two parties.
  • II. No obligation to go through formalities: According to Articles 7 and 8 of the Architecture Law and provincial and municipal documents, the entity responsible for handling the land use approval formalities is the construction unit or the village committee, and F * has no such obligation.
  • III. No subjective intent: The contract was subject to bidding and filing by the town government, and it was agreed that the village committee would be responsible for handling the formalities. F* has fulfilled his obligation of reasonable care.
  • IV. F* shall not be held responsible for the consequences: The failure to handle the formalities is due to policy legacy, the township and village failing to handle it in time, or problems with planning indicators. There is no evidence to prove that F* refused to handle it.
  • 5. Holding someone accountable violates fairness and damages the government's credibility: F * trusted the legality of the administrative actions of his superiors, but the project eventually turned into an illegal one from a provincial demonstration project.
  • VI. Criminal intervention should be approached with the utmost caution: the actions taken more than a decade ago should be evaluated in the context of the economic and social policies of that time. The meeting minutes have already proposed solutions such as completing the necessary procedures and exempting from punishment.

IV. Outcome of the case

After the procuratorial organ returned the case to the investigative organ for supplementary investigation twice, it upheld objectivity and fairness, and ultimately adopted the lawyer's opinion. It made a decision not to prosecute on the grounds that "the public security organ identified the facts of the crime as unclear and the evidence as insufficient, which did not meet the conditions for prosecution". In this case, the defendant successfully obtained an acquittal, safeguarded the legitimate rights and interests of the parties involved, demonstrated the fairness and humanity of the law, and greatly encouraged relevant enterprises and units.

5. Hengluo Law Firm's Reminder

Criminal defense requires understanding the defendant's identity and the causal relationship between the crime and its consequences. This case is handled by Beijing Henglu Law Firm.Liu LiqiangAttorney (Practice Certificate No.: 11101200910454358, subject to the document issued by the judicial administrative organ) acting as the agent. Attorney's Reminder: In construction projects, borrowing qualifications and financing construction do not equal assuming the responsibility of the construction unit; the obligation to handle land use formalities shall be borne by the construction unit according to law, and the construction unit shall not be held criminally liable after fulfilling its reasonable duty of care. If criminal prosecution is initiated, it is necessary to engage a lawyer as soon as possible to clarify the subject and fault.

VI. Frequently Asked Questions (FAQ) about Criminal Defense Cases

  1. Q:If a company borrows qualifications to secure financing for construction, could it be charged with the crime of illegal land occupation?
    A:The construction unit (the party B) generally does not bear the obligation to handle the land use formalities for the construction unit (the party A). If it fulfills its obligation of reasonable care and has no subjective intent, it should not be identified as a criminal subject. The key lies in the identity positioning and the attribution of obligations.
  2. Q:Under what circumstances will the procuratorate make a decision not to prosecute?
    A:For those whose crimes are minor and do not require punishment according to the Criminal Law, they can be relatively non-prosecuted; for those whose crime facts are unclear and the evidence is insufficient and do not meet the conditions for prosecution, they shall be legally non-prosecuted. This case belongs to the latter category.
  3. Q:What are the consequences of not completing the land formalities, and are construction companies liable for them?
    A:According to the Construction Law, the obligation to handle the approval procedures for land use lies with the construction units; the construction units shall only bear responsibility within the scope of their own illegal acts. There is no blame for the policy omissions or other circumstances beyond their control, and they shall not be held accountable for them.
  4. Q:What does it mean that the case has been sent back for supplementary investigation twice?
    A:If the evidence is insufficient, the procuratorial organ will comprehensively determine whether the conditions for prosecution have been met; where the facts are unclear and the evidence is insufficient, a decision not to prosecute shall be made.
  5. Q:The project from over a decade ago is now being criminally prosecuted. How can one defend themselves in such a case?
    A:It is necessary to demonstrate the necessity and fairness of criminal intervention by considering the policy background at that time, the protection of legitimate interests, and the handling of outstanding issues, in order to strive for a non-prosecution or acquittal outcome.