Basic case

In 2003, Wei and Duan registered a gas station in Beijing to operate liquefied petroleum gas. From January 2019 to September 2020, the two defendants continued to operate bottled liquefied petroleum gas retail business during the period when the gas business license expired and the new license was issued. From October 2018 to September 2020, Wei registered Company B in Shandong and obtained the qualification for hazardous chemicals business. Wei and Duan sold the purchased liquefied natural gas to merchants and residents in Beijing, and the amount of illegal business involved More than 500 million yuan. On the day of the incident, Wei and Duan learned that someone was inspecting the liquefied gas station and immediately rushed back to the scene from the outside. Wei thought it was an ordinary safety inspection. Duan saw that there were many people in uniforms at the scene and could not tell which were the police. The public prosecution agency believed that Wei and Duan had illegally operated more than 500 million yuan and were suspected of illegal business operations. The two did not know that the police were investigating the criminal crime and returned to the scene. They did not surrender. It is recommended that Wei be sentenced to two years and ten months in prison and a fine. Duan was sentenced to one year in prison and a fine, which can be suspended. At the trial stage, the collegial panel adopted the lawyer's defense opinion and held that the two defendants constituted voluntary surrender, and the suspended sentence was applied to both defendants.

legal analysis

The crime of illegal business operation refers to the unauthorized operation of monopoly, monopoly goods or other restricted goods, the purchase and sale of import and export licenses, import and export certificates of origin, and other business licenses or approval documents stipulated by laws and administrative regulations, without the approval of the relevant competent departments of the state to illegally operate securities, futures and insurance business, or illegally engage in fund payment and settlement business and other illegal business activities, Disrupting market order and serious circumstances. The crime of illegal business operation is a crime closely related to the administrative law enforcement of market supervision. From the perspective of judicial practice, the phenomenon that the crime of illegal business operation has become a "pocket crime" has gradually emerged. In judicial practice, the applicable provisions should be strictly limited to ensure that the principle of modesty of the criminal law falls into practice in the application of the crime of illegal business operations, and to prevent excessive interference in the economic field, so as to ensure the rights and interests of market operators.

The relevant provisions of the Criminal Law of 1. and the standard of prosecution

Article 225 of the Criminal Law was amended by the (VII) Amendment to the Criminal Law adopted at the seventh meeting of the Standing Committee of the Eleventh National People's Congress on February 28, 2009. modifiedArticle 225 of the Criminal CodeThe contents are as follows: whoever, in violation of state regulations, commits one of the following illegal business acts and disturbs the market order, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also or shall only be sentenced to a fine of not less than one time but not more than five times the illegal proceeds; if the circumstances are particularly serious, they shall be sentenced to fixed-term imprisonment of not less than five years and a fine of not less than one time but not less than five times the illegal proceeds or confiscation of property:
(I), without permission, dealing in articles for monopoly or sale as prescribed by laws and administrative regulations, or other articles whose sale is restricted;
(II) buying and selling import and export licenses, import and export certificates of origin and other business licenses or approval documents prescribed by laws and administrative regulations;
(III) illegally engage in securities, futures or insurance business without the approval of the relevant competent departments of the State, or illegally engage in fund payment and settlement business;
(IV) other illegal business operations that seriously disrupt market order.

The illegal operation of gas by the second defendant in this case should belong to "engaging in other illegal business activities",According to Article 79 of the (II) Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecuting Criminal Cases under the Jurisdiction of Public Security Organs (Gong Tong Zi [2010] No. 23, May 7, 2010)According to the provisions of the law, those who engage in other illegal business activities and are suspected of any of the following circumstances shall file a case for prosecution:
The amount of illegal business operations of (I) individuals is more than 50,000 yuan, or the amount of illegal income is more than 10,000 yuan;
The amount of illegal business operations of the (II) unit is more than 500,000 yuan, or the amount of illegal income is more than 100,000 yuan;
Although the (III) has not reached the above-mentioned amount standard, he has received more than two administrative penalties for the same kind of illegal business activities within two years and has carried out the same kind of illegal business activities;
(IV) other serious circumstances.

Article 88 of the (II) Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Prosecution of Criminal Cases under the Jurisdiction of Public Security OrgansIt is stipulated that "although the above-mentioned amount standard is not met" in these provisions refers to those who are close to the above-mentioned amount standard and have reached more than 80% of the amount. ".

According to the State DepartmentUrban Gas Management RegulationsAccording to the relevant provisions, the term "gas" in the regulations refers to the gas fuel used as fuel and meets certain requirements, including natural gas (including coalbed methane), liquefied petroleum gas and artificial gas; the state implements a license system for gas operation, and enterprises engaged in gas business activities shall be issued by the gas management department of the local people's government at or above the county level;Regulations of Beijing Municipality on Gas AdministrationIt is stipulated that the gas supply enterprise shall engage in business activities within the scope of the gas business license decision. State DepartmentUrban Gas Management RegulationsIt does not divide the gas business activities into "bottled gas business" and "pipeline gas business", that is, whether it is "bottled gas business" or "pipeline gas business", it is necessary to obtain the corresponding administrative license and engage in business activities according to the scope of the license. Company B operated by Wei and Duan only has the business license to use natural gas as raw material for production, the company did not obtain the business qualification to use natural gas as fuel, and the two defendants did not operate the restricted trading items stipulated in the administrative regulations without permission, which constituted the crime of illegal business operation.

2. the Legal Provisions and Jurisprudential Connotation of "Violation of State Regulations" The Criminal Law

Article 96Provisions: "The term" violation of state regulations "as mentioned in this Law refers to violations of laws and decisions formulated by the National People's Congress and its Standing Committee, administrative regulations formulated by the State Council, prescribed administrative measures, and issued decisions and orders." This is the criminal law basis for determining the crime of illegal business operation "in violation of state regulations. As far as the crime of illegal operation is concerned, it is the most severe means used by the government to control market operation. If the scope of intervention is too large, it will largely cause producers to be subordinate to government agencies and have no independent status. It is impossible to operate freely and improve market vitality, thus restricting the development of market economy.

Article 355 of the Criminal CodeThe terms "violation of national regulations" and "national regulations (regulated)" can be interpreted as follows:(1) the term "violation of national regulations" in this article ",Pursuant to article 96 of the Criminal Codemeans violating the Measures for the Administration of Narcotic Drugs (promulgated by the State Council on November 28, 1987) and the Measures for the Administration of Psychotropic Drugs (promulgated by the State Council on December 27, 1988);(2) The term "national regulations (controlled)" as mentioned in this article may refer to the Catalogue of Narcotic Drugs (2007 Edition) and the Catalogue of Psychotropic Drugs (2007 Edition) (promulgated by the State Food and Drug Administration, the Ministry of Public Security and the Ministry of Health on October 11, 2007). The national regulations in "violation of national regulations" are listed in categories. As far as the crime of illegal business operations is concerned, the national regulations among the "violation of national regulations" of illegal business operations can be roughly divided into the following categories:
(I) laws and administrative regulations on import and export license system, such: "Foreign Investment Enterprise Law", "Foreign Trade Law", "Patent Law", "Trademark Law", "Regulations on the Administration of Enterprise Legal Person Registration" and its implementation rules, "Interim Regulations on the Administration of Urban and Rural Individual Industrial and Commercial Households" Regulations, "Interim Measures on the Export License System", "Interim Regulations on the Import Goods License System", "Implementation Rules of the Interim Regulations on the Import and Export Goods License System", "Import Goods regulations on Origins, Decision on Penalties for Violation of Import and Export License Management System, etc.
The laws and administrative regulations of the (II) on the licensing system of medicine, health and cultural publication are as follows: "Drug Administration Law", "Food Hygiene Law", "Cultural Relics Protection Law", "Interim Provisions on the Administration of Periodicals", "Interim Provisions on the Administration of Printing Industry", "Interim Provisions on the Implementation of the TV Drama Production License System", "Provisions on the Implementation of Performance Business License for Theatrical Performance Brokerage Agency", etc.
(III) laws and administrative regulations on the licensing system for public safety and order, such as the Gun Control Law, the Road Traffic Safety Law, the Regulations on the Administration of Civil Explosives, and the Regulations on the Administration of Dangerous Chemicals.
(IV) laws and administrative regulations on land use and urban and rural construction permit system, such as land management law, urban planning law, urban real estate management law, etc.
(V) laws and administrative regulations on environmental resources protection license system, such as forest law, mineral resources law, fishery law, wildlife protection law, marine environmental protection law, etc.
(VI) laws and administrative regulations on financial, securities, futures and insurance business license systems, such as the Securities Law, the Securities Investment Fund Law, the Regulations on the Administration of Commercial Franchising, the Measures for the Punishment of Financial Illegal Acts, the Interim Regulations on the Administration of Stock Issuance and Trading, and the Regulations on the Administration of Futures Trading.
(VII) other laws and administrative regulations on the licensing system, such: "Tobacco Monopoly Law", "Tobacco Monopoly Law Implementation Regulations", "Seed Law", "Gold and Silver Management Regulations", "Commercial Franchise Management Regulations", "Decision on the Implementation of Monopoly of Chemical Fertilizers, Pesticides, and Agricultural Films", "About Strengthening Decisions on Steel Management", "Salt Monopoly Measures", "Telecommunications Regulations", "Regulations on the Administration of Internet Service Places", "Regulations on Prohibition of MLM, Industrial Products regulations on the Administration of Production Licenses, Measures for the Administration of Grain Purchase Qualifications, etc.

3. basis for the judgment of "particularly serious circumstances"

The judgment basis of illegal business behavior "the circumstances are particularly serious" is mainly based on factors such as illegal business volume and illegal profit, and other factors must be considered at the same time. According to the experience of judicial practice, the circumstances are particularly serious, including the following situations:(1) the amount of illegal business operations or the amount of illegal profits is particularly large;(2) illegal business activities are carried out for many times;(3) illegal business operations are not repented after administrative punishment and are committed again;(4) illegal business activities cause serious consequences or adverse social impact;(5) organized criminal groups to carry out illegal business activities;(6) Taking advantage of their functions and powers to conduct illegal business activities;(7) Resisting inspection, destroying or falsifying evidence or blaming others;(8) Other particularly serious circumstances.

A liquefied gas station was registered and established in 2003. during its operation, it has been applying for a gas business license. for more than ten years, Wei mou and Duan mou have been able to apply for a new license on time every year. however, at the end of 2018, after the expiration of the "gas business license", due to the reform of the state organization, the management unit for liquefied gas was changed from the gas office of the city appearance Commission to the energy office of the city administration. at the end of the end of the end of the end of the new crown, in this case, the renewal was delayed due to policies and epidemics. The business behavior during the application for renewal does not belong to "particularly serious circumstances" and should be distinguished from other illegal business crimes and sentenced to less than five years.

4. Understanding and Analysis of "Serious Disruption of Market Order"

In judicial practice, there are different interpretations of "seriously disrupting market order", mainly from the perspectives of the amount involved, the number of violations of administrative regulations, and the actual social harm of the behavior ". "Disrupting market order" and "violating relevant regulations on administrative management" are two aspects of the same problem. The two are in an overlapping state. The key is to see whether the degree of disruption is "serious". "Seriously disrupting market order" and "violating relevant administrative regulations" are two relatively independent constitutive elements. They are not intended to indicate that "violating relevant administrative regulations may not disrupt market order", but to emphasize the need to disrupt market order. And only when it reaches a "serious" level can it be evaluated as a crime. Guiding cases require that the establishment of the crime of illegal business operations should have a considerable degree of social harm. Real cases show that some judicial officials also explain "seriously disrupting market order" from the perspective of social harm. In the substantive determination of the crime of illegal business operations, we should further explore Where is the direction of social harm.

In this case, municipal natural gas cannot solve the "last mile" problem of the common people. Many companies and residents are faced with the problem of being unable to afford huge gas opening fees. They choose liquefied natural gas with low price and high safety performance so that they can heat in winter. It can also solve their food problems. At the same time, liquefied natural gas LNG storage efficiency is high, occupies a small area, investment province, it has a high octane number, good anti-explosion performance, low fuel costs, good environmental performance and other advantages. Since the density of LNG after vaporization is very low, only about half of the air, a slight leak immediately spread, reducing the possibility of causing an explosion. LNG has a relatively pure component, burns completely, and generates carbon dioxide and water after combustion. It is a good clean fuel, which is conducive to protecting the environment and reducing urban pollution. After a cryogenic process, the sulfur component in natural gas is precipitated and separated in solid form, which is cleaner than other fuels, and has lower greenhouse gas emissions during combustion. It is a "green" energy source. In this case, the business behavior of Wei and Duan solved the problem of gas use by some merchants and residents. Although the amount of illegal business is as high as more than 500 million yuan, it should be distinguished from other illegal business activities that "seriously disrupt the market order". Lighter punishment.

Determination of 5. Surrendered

Defendant Wei thought it was an ordinary security check before returning to the scene. Duan did not know clearly what was the reason for the check before arriving at the scene. Does the act of voluntarily returning to the scene constitute surrender without knowing that the police were investigating criminal cases at the scene? Because the two defendants did not escape or escape after seeing the police at the scene, but showed their identity and took the initiative to put themselves under the control of the judicial organs, which was in line with the initiative and voluntariness of surrendering. After arriving at the case, they truthfully confessed the facts of the crime, which should constitute surrender. The parties are required to realize that the behavior clearly constitutes a crime. For those who have no legal knowledge, the standard is too high. As long as the parties take the initiative to put themselves under the control of the public security organs and can truthfully confess the facts of the crime after arriving at the case, it is in line with the constitutional requirements of voluntary surrender.

In this case, the two defendants Wei and Duan signed the "confession of guilty plea and punishment" at the stage of examination and prosecution. In the trial stage, the collegial panel determined the circumstances of the surrender of the two defendants, and at the same time, the procuratorial organ adjusted the sentencing opinion in accordance with the recommendations of the judicial organ, and finally the court applied probation to the two defendants.

Introduction to the Author

Lawyer Wang Yawei

Wang Yawei, Deputy Director of the Board of Supervisors of Beijing Huixiang Law Firm, Director of the Criminal Law Professional Committee.

Business areas
Criminal Defense, Criminal Prosecution, Criminal Compliance

educational background
Northwest University of Political Science and Law Postgraduate

Typical case
1. Ai Moumou participated in underworld organizations, provoked troubles, forced transactions, extortion, illegal detention, and gambling cases, and reduced four criminal facts during the review and prosecution stage; 2. The deputy director of the executive board of a provincial high court and a member of the trial committee were suspected of taking bribes, The source of a huge amount of property is unknown, and the execution of the judgment ruled abuse of power, reduce the amount of the crime of a huge amount of property with unknown sources; 3. Li, the deputy general manager of a virtual currency trading place, was suspected of the crime of opening a casino, and was released on bail pending trial during the review and arrest stage;
4. An intermediary incited the parents of the school district to cause trouble, suspected of provoking trouble, filed a defense of innocence, and the party was released on bail pending trial during the review and arrest stage;
5. In the case of corruption and bribery by the director of urban construction of a city in Shandong Province, he pleaded not guilty to the crime of corruption, but the court did not determine the name of the crime of corruption;
6. In the case of Yang's infringement of citizens' personal information, he filed a plea of innocence during the review and arrest stage. The party was released on bail pending trial, and the case was later revoked by the public security organ;
7. In Wang's fraud case, he filed a defense of innocence. During the review and approval of arrest, the party was released on bail pending trial. After the release of the bail pending trial expired, he was not transferred for review and prosecution;
8. In the case of Pang Moumou's fraud, he filed a defense of innocence. During the review and approval of arrest, the party was released on bail pending trial. After the release of the bail pending trial expired, he was not transferred for review and prosecution;
9. In the case of Yang's theft, the original appraisal opinion was overturned through investigation and evidence collection. After the public security organ re-identified, the sentencing file was reduced from more than ten years to less than ten years in prison;

Professional writings
1. Participated in the compilation of "Exploration and Research on Chinese Legal Theory and Practice in the 21st Century", collected by the Supreme People's Court, and issued the "Supreme People's Court Collection Certificate";
2. Introduction to Criminology, China University of Political Science and Law Press.

Professional Articles
1. "Analysis of Litigation Fraud" won the third prize of the court's essay;
2. "On the system of eliminating the criminal record of young criminals" won the first prize of the Juvenile Delinquency Research Association.

Lawyer Kui Zhuoran

Kui Zhuoran, member of the board of supervisors of Beijing Huixiang Law firm and deputy director of the Criminal Law Professional Committee, once worked in the public security bureau of a municipality directly under the Central Government for 10 years, involving criminal investigation, economic investigation, intelligence, legal system, and other departments, participated in handling a large number of major criminal and economic cases, and received many awards for meritorious service. After working as a full-time lawyer, he has represented the following cases (in part):

1. criminal defense
1. The "Lou He Extraordinary Underworld Gang" in Jinzhou City, Liaoning Province, represented Lou Mou, the No.1 defendant of the gang involved;
2. The case of corruption and abuse of power by Geng, the former deputy mayor of Baoshan City, Yunnan Province;
3. In Luliang City, Shanxi Province, the case of setting up a casino on a large overseas network has achieved good results;
4. In Ordos City, Inner Mongolia, Li's case of illegal occupation of agricultural land and illegal mining has achieved good results;
5. Xianning City, Hubei Province, Li Moumou gang contract fraud case, achieved good results.

2. cases of non-prosecution or non-arrest
1. Jiang, an executive of a real estate company, is suspected of intentional injury;
2. Zhou Mou (Deputy Bureau), an executive of a state-owned enterprise, was suspected of provoking trouble and successfully did not prosecute;
3. Jin, an executive of a listed company, was suspected of illegally misappropriating funds and successfully did not prosecute;
4. Guo Moumou was suspected of falsely issuing special value-added tax invoices. After the procuratorate prosecuted, he successfully failed to approve the arrest and was released on bail pending trial;
5. Tian Moumou was suspected of committing a major liability accident and successfully failed to approve arrest and was released on bail pending trial.

3. accusatory cases
1. An Internet giant helped the company successfully file a lawsuit in Shanghai because its employees were suspected of taking bribes from non-state employees;
2. An Internet company, because its employees were suspected of embezzlement, helped the company successfully file a lawsuit in Fujian:
3. A listed real estate company helped the company successfully file a lawsuit in Nanjing because its employees were suspected of embezzlement;
4. A listed game company helped the company successfully file a lawsuit in Beijing because its employees were suspected of illegally obtaining computer information systems;
5. A Hong Kong-listed company, whose business reputation was damaged because its competitors fabricated and spread false facts, helped the company successfully file a case in Beijing for the crime of damaging its business reputation.