【云德资讯】云德律所政府法律事务部首席律师王丽霞接受央媒专访，就开发商强扣建筑材料追回损失遇“困局”一案深度解析

近日，消费日报网接到安徽省六安市祝先生投诉，称其在江苏徐州雎宁县雎城镇承接项目时，被江苏徐州福星房地产开发有限公司强制扣押建筑材料，其多年维权未果。对此，记者展开调查。

Recently, Consumer Daily received a complaint from Mr. Zhu of Lu'an City, Anhui Province, claiming that when he was undertaking a project in Ju Town, Juning County, Xuzhou City, Jiangsu Province, he was forcibly detained by Jiangsu Xuzhou Fuxing Real Estate Development Co., Ltd. And his rights protection failed for many years. In response, the reporter launched an investigation.

据祝先生反映，其于2015年11月经朋友介绍，在江苏徐州雎宁县雎城镇承接了徐州福星房地产开发有限公司福源广场1#2#3#商住楼项目。该项目于2016年7月完工，因得到后期继续参与建设的承诺，经徐州福星房地产开发有限公司一李姓和一夏姓负责人许可后，祝先生将剩余的价值一百三十余万的建筑工程材料堆放在3#楼后面的空地上，以便后期继续使用。2017年3月，祝先生被告知项目已经承包给其他公司，便打算将堆放材料拉走，但徐州福星房地产开发公司负责人李姓和夏姓等负责人却对材料进行强行扣押，祝先生报案后，睢城派出所表示警方不能处理纠纷，只能保证相关材料不丢失。2017年6月，祝先生却发现材料已被搬空。而报案后警方表示，只能出具材料在此的相关视频。2017年10月，祝先生以该房地产夏姓负责人强行扣留侵占他人财产为由，向雎宁县人民法院提起诉讼。2018年法院作出判决——以数量不明，无法定损为由，驳回诉讼；此后祝先生又向徐州市中级人民法院提起上诉，徐州市中级人民法院判其发回重审；2018年7月雎宁县人民法院立案，次年3月作出判决，判决结果继续以证据不足，数量不清为由，判由祝先生方承担损失。“我一百多万元的材料堆在项目现场被他们强行扣押，报案时也有出警民警的现场视频，民警还承诺放置的材料不会丢失，可却因为数量不明、无法定损，让我自行承担。东西没了是事实，但是因为不能定损具体价值就不赔，这不合理”。祝先生向记者表示。

According to Mr. Zhu's report, in November 2015, he was introduced by friends to undertake the 1 # 2 # 3 # commercial and residential building project of Fuyuan Plaza of Xuzhou Fuxing Real Estate Development Co., Ltd. In Ju Town, Juning County, Xuzhou City, Jiangsu Province. The project was completed in July 2016. Due to the promise to continue to participate in the construction in the later period, Mr. Zhu piled up the remaining construction materials worth more than 1.3 million on the open space behind Building 3 after obtaining the permission of the person in charge of Xuzhou Fuxing Real Estate Development Co., Ltd., surnamed Li and surnamed Xia, so as to continue to use them in the later period. In March 2017, Mr. Zhu was told that the project had been contracted to other companies and planned to pull away the piled-up materials. However, the heads of Xuzhou Fuxing Real Estate Development Company, such as Li Xing and Xia Xing, forcibly seized the materials. After Mr. Zhu reported the case, Suicheng Police Station said that the police could not handle the dispute and could only ensure that the relevant materials would not be lost. In June 2017, Mr Zhu found that the materials had been emptied. However, after reporting the case, the police said that only relevant videos with materials here could be issued. In October 2017, Mr. Zhu filed a lawsuit with Juning County People's Court on the grounds that the person in charge of the real estate surnamed Xia forcibly detained and embezzled other people's property. In 2018, the court ruled that the lawsuit was rejected on the grounds that the quantity was unknown and the damage could not be determined. After that, Mr. Zhu appealed to Xuzhou Intermediate People's Court, which sentenced him to remanding him for retrial. In July 2018, Juning County People's Court filed a case and made a judgment in March of the following year. The judgment continued to judge Mr. Zhu to bear the losses on the grounds of insufficient evidence and unclear quantity."I piled more than 1 million yuan of materials on the project site and were forcibly detained by them. When reporting the case, there was also a live video of the police. The police also promised that the materials placed would not be lost, but because the quantity was unknown, the damage could not be determined, so I was allowed to bear it myself. It is a fact that things are gone, but it is unreasonable not to compensate because the specific value of the damage cannot be determined." Mr Zhu told reporters.

2019年11月7日，记者来到江苏徐州雎宁县，就此事进行采访。当日下午14时，记者来到福星房地产开发商公司注册地睢宁县睢城镇城东村新化组，看到该公司大门紧关，里面空无一人。记者多次拨打祝先生提供的徐州福星房地产开发有限公司几位负责人电话，均无人接听或无法接通。随后，记者来到睢宁县委宣传部，一名卓姓工作人员接待了记者。记者向其表明来意并提出去睢城镇派出所和睢宁县法院采访的要求。11月8日，卓姓工作人员联系记者表示：“已联系了睢城派出所和睢宁法院，睢城派出所不方便接受采访。睢宁法院是严格准守法律法规的，没有一点偏袒，原告如果对判决不服可以去上一级人民法院上诉”。

On November 7, 2019, the reporter came to Juning County, Xuzhou City, Jiangsu Province to interview on the matter. At 14: 00 p.m. on the same day, the reporter came to Xinhua Group, Chengdong Village, Suicheng Town, Suining County, where Fuxing Real Estate Developer Company was registered, and saw that the company's gate was tightly closed and empty. Reporters repeatedly called several responsible persons of Xuzhou Fuxing Real Estate Development Co., Ltd. Provided by Mr. Zhu, but none of them answered or could be connected. Later, the reporter came to Suining County Party Committee Propaganda Department, and a staff member surnamed Zhuo received the reporter. The reporter made it clear to him what he had come for and asked him to go to Suicheng Police Station and Suining County Court for an interview. On November 8, Zhuo's staff contacted the reporter and said: "Suicheng Police Station and Suining Court have been contacted. Suicheng Police Station is not convenient for interviews. Suining Court strictly abides by laws and regulations and has no bias. If the plaintiff refuses to accept the judgment, he can appeal to the people's court at the next higher level."

2019年11月25日，记者就此事联系了陕西云德律师事务所的王丽霞律师。王丽霞律师表示，《中华人民共和国刑法》第二百七十条规定：“将代为保管的他人财物非法占为己有，数额较大，拒不返还的，处二年以下有期徒刑、拘役或者罚金；数额巨大或者有其他严重情节的，处二年以上五年以下有期徒刑，并处罚金”。侵占罪是以非法占有为目的，将代为保管的他人财物非法占为己有。本罪在主观上具有直接故意，即明知自己占有的财物是他人合法所有的，按照法律规定或合同约定有义务将财物交还财物所有人的，但故意拒不交还；客观上表现为非法占有他人财物，数额较大，拒不退还或拒不交出的行为；侵犯的客体是私有财产的所有权。侵占罪属于“告诉才处理”的犯罪，祝先生可直接向人民法院提起刑事自诉，人民法院应当受理，人民法院若认为本案证据不足、可由公安机关受理的，或者认为对被告人可能判处三年有期徒刑以上刑罚的，应当移送公安机关立案侦查。

On November 25, 2019, the reporter contacted lawyer Wang Lixia of Shaanxi Yunde Law Firm on this matter. Lawyers from Wang Lixia said that Article 270 of the Criminal Law of the People's Republic of China stipulates: "Whoever illegally takes possession of other people's property in his custody, if the amount is relatively large and refuses to return it, shall be sentenced to fixed-term imprisonment of not more than two years, criminal detention or a fine; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than two years but not more than five years and shall also be fined." The crime of embezzlement is to illegally occupy other people's property for the purpose of illegal possession. This crime subjectively has direct intent, that is, knowing that the property he possesses is legally owned by others, he has the obligation to return the property to the owner of the property according to the law or the contract, but intentionally refuses to return it; Objectively, it is manifested as illegal possession of other people's property, large amount, refusal to return or hand over; The object of infringement is the ownership of private property. The crime of embezzlement is a crime of "handling only after telling". Mr. Zhu can directly bring a criminal private prosecution to the people's court, which shall accept it. If the people's court thinks that the evidence in this case is insufficient, it can be accepted by the public security organ, or if it thinks that the defendant may be sentenced to fixed-term imprisonment of more than three years, it shall transfer it to the public security organ for investigation.

同时，王律师也指出了案件中存在的疑点：一是职权标准，夏某等人的扣押行为若要认定为职务行为，应当符合其在公司内的职责，而夏某等人将他人物品扣押的行为与公司经营并没有直接关联性，也不符合公司内部人员的职责范围，夏某取得公司授权是否是利用其控股股东地位取得的，进而将责任推卸给公司承担？二是名义标准，要看该行为的实施是否以“工作”或“职务”名义实施。扣押他人物品，虽然由公司授权，但和职权标准一样，并不在公司经营的职务范围内。三是目的标准，即工作人员所实施行为的目的是否是为了公司的利益或者为了履行职务或者与职务有其他内存联系。判决书中写到：经法院查证，夏某扣押物品是因为原告祝先欠付工人工资。那么存在一种可能性，祝某欠付工资的工人可能以实际施工人身份会找到发包方福星公司。但福星公司已经完全支付了工程款，不必承担该方面的民事责任。那么夏某将物品扣押并没有为了公司利益的目的，同时扣押他人财物也可能导致公司利益受损。那么夏某把责任推到公司，是否是职务行为？关于这些问题，各方在此事处理过程中需要进一步考量。

At the same time, Lawyer Wang also pointed out the doubtful points in the case: One is the standard of authority, If the seizure of Xia and others is to be recognized as an official act, It should conform to its duties in the company, and Xia and others' seizure of other people's articles is not directly related to the company's operation, nor does it conform to the scope of duties of the company's internal personnel. Did Xia obtain the company's authorization by using his controlling shareholder status, thus shifting the responsibility to the company? The second is the nominal standard, which depends on whether the implementation of the act is carried out in the name of "work" or "position". Seizure of other people's articles, although authorized by the company, is not within the scope of the company's business, just like the standard of authority. The third is the purpose standard, that is, whether the purpose of the behavior carried out by the staff is for the benefit of the company or to perform their duties or has other memory connections with their duties. The judgment wrote: After verification by the court, Xia Mou seized the goods because the plaintiff Zhu Xian owed the workers wages. Then there is a possibility that a worker who owes wages may find Fuxing Company, the employer, as the actual constructor. However, Fuxing Company has fully paid the project fund and does not have to bear civil liability in this respect. Then Xia's seizure of the goods was not for the purpose of the company's interests, and seizure of other people's property may also cause damage to the company's interests. So is it an official act for Xia to shift the responsibility to the company? On these issues, all parties need further consideration in the process of handling this matter.