Investigation and reflection on the trial of illegal business cases
Abstract: Since 2009, the provisions on the crime of illegal business operation in the Seventh Amendment to the Criminal Law and the relevant judicial interpretations have changed, and the extension and connotation of the crime of illegal business operation have also changed. The author takes the illegal business operation cases heard by the Yuyao Court in Zhejiang Province in the past three years as a sample, analyzes the trial situation, and summarizes the experience, in order to better guide the trial practice.
Since 2009, the provisions on the crime of illegal business operation have changed in the Amendment VII of the Criminal Law and relevant judicial interpretations, and the extension and connotation of the crime of illegal business operation have also changed. The author takes the illegal business operation cases heard by the Yuyao Court in Zhejiang Province in the past three years as a sample, analyzes the trial situation, and summarizes the experience, in order to better guide the trial practice. —The basic situation of the trial of illegal business cases The total number of cases is relatively small. Since 2009, the total number of illegal business cases in the Yuyao court has been relatively low, with a total of 44 cases concluded. Among them, 13 cases of illegal business operation were concluded in 2009, accounting for 0.95% of the total number of cases, 13 cases were concluded in 2010, accounting for 1% of the total number of cases, and 18 cases were concluded in 2011, accounting for 0.97% of the total number of cases. The proportion of joint offenders is high. Due to the special nature of the crime of illegal business, the proportion of joint crimes is relatively high. Of the 44 cases concluded, there were 21 cases of joint crimes, accounting for about 47.7 per cent. In fact, due to investigation and prosecution reasons, many cases that were originally joint crimes have been split into single-defendant cases. If this factor is taken into account, the rate of joint offence would be more than 70 per cent. Penalties are applied with a balance of leniency and severity. In the trial of illegal business cases, the court should firmly grasp the criminal policy of blending leniency and severity, and the punishment should be balanced and the punishment should be proportionate. In the 44 cases heard by the Yuyao court, a total of 92 defendants were sentenced to six years in prison for the heaviest punishment and exempted from criminal punishment for the lightest, depending on the severity of the crime. Of these, about 66 per cent are non-custodial sentences. The types of crimes are relatively fixed. The provisions of the crime of illegal business operation are highly generalized, and the specific types of crimes include more than a dozen specific criminal acts that infringe on the order of the socialist market economy. Judging from the specific types of crimes in the 44 cases that have been concluded, there are five types of crimes, including pyramid schemes, Mark Six, selling cigarettes without a license, cashing out credit cards, and illegally selling fireworks and firecrackers. In 2009, it was mainly for Mark Six, pyramid schemes and tobacco cases. In 2010, it was mainly a case of selling fireworks and firecrackers without a license and tobacco. In 2011, there were mainly cases of Mark Six, credit card cash, unlicensed sale of fireworks and tobacco. Statistically, tobacco cases account for a large proportion of illegal business cases, but the specific types of crimes in illegal business cases vary from year to year with changes in the legal environment. In 2011, five cases of illegal business operations involving the use of credit cards for cashing out were tried as a result of the addition of item (3) of the crime of illegal business operation in Amendment VII to the Criminal Law, and the Supreme People's Court issued relevant judicial interpretations at the end of 2009. Article 12 of the Criminal Law stipulates that if an act that occurred before the implementation of this Law is not considered a crime by the law at the time, the law at that time shall apply; This provision establishes the general principle of retroactivity and leniency of criminal law. Since 2009, the legal documents related to the crime of illegal business operation have been continuously updated, and the retroactivity of the criminal law has become more prominent in judicial practice. Case: In 2007, Zhu engaged in pyramid marketing activities in the name of investing in "Swiss Mutual Fund", developed 78 downlines, and illegally operated 2475091 yuan. At the end of 2007, Zhu was convicted and punished by the Yuyao Court in Zhejiang Province for the crime of illegal business operation. From 2008 to February 2009, his co-defendants Yao and Gong were also convicted and punished for illegal business operations. On February 28, 2009, the Standing Committee of the National People's Congress promulgated Amendment VII to the Criminal Law, adding the crime of organizing and leading pyramid schemes. At the end of June 2009, Mao, a co-defendant in the case, was prosecuted to the court. Under the introduction of Zhu, Mao directly and indirectly developed 44 people downline, and the illegal business turnover was 1111471 yuan. There are two views on the specific conviction, one is that it should be convicted of organizing and leading pyramid schemes. Because Mao organized and developed 44 downlines in the entire pyramid marketing activities, had a higher level in the pyramid hierarchy system of pyramid marketing activities, and actively organized other personnel to participate in pyramid marketing activities, he should be found to be guilty of organizing and leading pyramid marketing activities, and the second view is that the crime of illegal business operation should be convicted. First of all, Mao's criminal conduct occurred in 2007, that is, before the implementation of the Criminal Law Amendment (VII), the crime of organizing and leading pyramid selling activities did not exist, and according to the provisions of the Supreme People's Court's 2001 "Reply on How to Characterize Pyramid Selling or Disguised Pyramid Selling Acts with Serious Circumstances", the conduct of organizing and leading pyramid selling activities at this time was generally handled as the crime of illegal business operation. Second, comparing the statutory penalties for the crime of organizing and leading pyramid selling activities and the crime of illegal business operation, if the circumstances of the crime are serious, if the criminal act is serious, it is possible to be sentenced to fixed-term imprisonment of not less than five years, and if it is the latter, it is possible to be sentenced to fixed-term imprisonment of not more than five years. The statutory penalty for the crime of illegal business operation is lighter than that for the crime of organizing and leading pyramid selling activities. According to the principle of leniency and leniency as stipulated in Article 12 of the Criminal Law, the court finally convicted and punished Mao for the crime of illegal business operation. The crime of illegal business operation is a new crime in the Criminal Law in 1997, which has been amended three times so far, and more than a dozen judicial interpretations related to this have been promulgated. Although frequent changes in the law show that legislation often lags behind the development of social conditions, it also brings problems in the retroactivity of the law to the application of the crime of illegal business operation. Although the definition of the crime of illegal business operation has not changed, some specific acts have been included in the specific types of crimes of illegal business operation, and their scope is expanding day by day, so it is necessary to pay attention to the characteristics of the frequent changes in the legal provisions of the crime of illegal business operation, and to note the increasing number of acts covered by it. From 2009 to 2011, the Yuyao People's Court in Zhejiang Province heard two cases of illegal business related to fireworks and firecrackers. Although the number of cases is small, the legal issues involved deserve attention. Legal properties of fireworks. In 2006, the State Council formulated and implemented the Regulations on the Safety Management of Fireworks and Firecrackers (hereinafter referred to as the "Regulations on Fireworks and Firecrackers"). The first article states that the purpose of formulating the regulations is to strengthen the safety management of fireworks and firecrackers, prevent explosion accidents, and ensure public safety and personal and property safety. In that year, the State Administration of Work Safety formulated the "Fireworks and Firecrackers Business License Implementation Measures" in accordance with the "Fireworks and Firecrackers Regulations", Article 2 of which clearly stipulates that those who have not obtained a fireworks and firecrackers business license shall not engage in fireworks and firecrackers business activities. Article 8 stipulates that the distribution of fireworks and firecrackers shall be approved in accordance with the principles of unified planning, safety assurance, reasonable layout and total control, and a fair, honest, standardized and orderly market circulation order shall be established. Based on this, the production, transportation, sales and discharge of fireworks and firecrackers are included in the administrative control. Market behavior must be approved by the administrative organ, and violations of the administrative license are punished. From 2009 to 2011, the Yuyao court in Zhejiang Province heard two cases of unlicensed sale of fireworks and firecrackers. From the perspective of the application of law, the provisions of Article 225 (1) of the Criminal Law were applied in both cases, and from the perspective of the composition of the acts, the sales were not permitted, and the goods operated were monopolies, monopoly goods, or restricted goods. Unlike salt, tobacco and other commodities, fireworks are restricted items rather than franchises and monopoly items. Because although the entire fireworks market is controlled by the administrative authorities, the administrative organs only indirectly manage it by setting up administrative licenses, and do not directly participate in the process of production and sales. By influencing market entities, the administrative authorities ultimately achieve the purpose of restricting the circulation of fireworks and firecrackers. The possibility of awareness of illegality in the unlicensed sale of fireworks and firecrackers. The possibility of awareness of illegality refers to the perpetrator's ability to recognize that his or her conduct is illegal when he or she commits an illegal act that meets the constitutive elements of a crime. At present, the possibility of awareness of illegality is only a theoretical issue, and has not yet risen to the level of legal provisions. However, in the course of the trial, when the adjudicator is confronted with the doubts that the defendant does not know the law, and when the provisions of such administrative regulations conflict with the defendant's traditional cognition, this theory and doctrine should be considered when convicting and sentencing. Setting off fireworks and firecrackers is an ancient custom in traditional festivals and weddings and funerals in the mainland, but since the 90s of the last century, the mainland has begun to ban fireworks and firecrackers in large and medium-sized cities. Around 2005, the ban on fireworks and firecrackers in large and medium-sized cities was loosened, and the "ban was changed to a limit". In 2006, the State Council set up administrative licenses for the production, transportation, sales and large-scale fireworks activities, and the impact of fireworks and firecrackers on people's daily behavior cannot be ignored after being included in the control of administrative licensing, especially sales behavior. In people's traditional beliefs, the sale of fireworks and firecrackers should not be related to breaking the law and committing crimes. However, after the administrative license is set, the daily buying and selling behavior may be suspected of a crime. In fact, for a long time, people did not have sufficient awareness of the illegality of fireworks trafficking. Although the possibility of recognizing illegality is still a theoretical doctrine and lacks clear legal provisions, the rationality factors should be learned from and absorbed in the trial of cases. Because if the defendant does not fully understand the illegality of his act, that is, when he does not fully realize the social harmfulness of his act, the intent in his subjective factors is not obvious, or the subjective malice is not great, in this case, it is confirmed that his act is illegal, but his lack of understanding of the illegality is regarded as a deterrent factor of responsibility, and in the end, the court convicted all the defendants in this case, but sentenced them to non-custodial sentences at sentencing, so as to achieve the unity of legal and social effects IV. Some Suggestions First, strictly follow the provisions of the criminal law on retroactivity. The reason why the crime of illegal business operation is called a pocket crime is related to the increasing number of specific types of criminal acts. When applied, the principle of leniency and leniency as provided for in article 12 of the Criminal Law should be strictly followed, and conduct prior to the issuance of new legal provisions or judicial interpretations should be reasonably handled. Second, there is a need to stabilize legislation on the crime of illegal business operations. Due to the continuous introduction of new legal interpretations to include illegal acts in criminal acts, the extension of the crime of illegal business operation is constantly changing, and it also affects people's daily business behavior. Although some business activities are suspected of playing the side game, it is feared that the criminalization of such behaviors at every turn also runs counter to the original intention of the socialist market economy to be free and fair. Therefore, in addition to paying attention to the retroactivity of the application of the old and new laws in the judiciary, and paying attention to the combination of the legal and social effects of the application of the law, it is also necessary to stabilize the legislation and judicial interpretation of the crime of illegal business operation. Third, intensify the publicity of laws and regulations. In cases of illegal business operations, some defendants do not have sufficient understanding of illegality, and it is necessary for relevant departments to increase legal publicity. If the POS machine is used to cash out, the bank should clearly inform the applicant of the legal consequences of cashing out when the relevant personnel apply for the POS terminal, and after the introduction of laws and regulations related to illegal business activities, it is necessary to increase publicity efforts and strengthen the psychological awareness of the public.
Source: "People's Justice" Social Science I., Issue 19, 2012, Zhu Rongrong, Hu Xinghui (People's Court of Yuyao City, Zhejiang Province) Reprinted from the criminal rule of law public account, only for learning and discussion, such as invasion and deletion, thank you
Transferred from the official account of Case Handling Daquan