Lawyer

Chapter 419 Chapter 440 441 442 (Merged Chapters) Pinch it, both of you pinch hard!

After a while, the three male judges of the collegial panel walked into the trial court, and the procurator Zhou and his colleagues who had met before in the prosecution bench were whispering.

After going through the previous procedures, after the court checked the basic information of the defendant, the presiding judge first asked the bailiff to take Xiang Dong out of the court pending trial.When there are multiple defendants in the same criminal case, the court investigation needs to be conducted separately.

The presiding judge said: "The court investigation is now underway, and the public prosecutor is asked to read Xiang Yaqiang's indictment."

"...We believe that the defendants transferred to Yaqiang and Xiangdong Internet cafes with business licenses, Internet culture business licenses and other legal licenses, but did not go through the registration procedures for changes. illegal purpose.

Defendant Xiang Yaqiang’s behavior violated the provisions of Article 280 of the Criminal Law of the People’s Republic of China. The facts of the crime are clear and the evidence is reliable and sufficient. He should be investigated for criminal responsibility for the crime of buying and selling state agency certificates.Ask the court to judge according to law.complete! " Inspector Zhou said.

"Defendant Xiang Yaqiang, did you hear clearly the indictment read out by the public prosecutor just now? Do you have any objection to the charges and criminal facts in the indictment?" asked the presiding judge.

"I have no objection to the facts of the case, but I have objection to the charges. The relationship between Xiangdong and I is a normal business relationship, and there is no crime." Xiang Yaqiang said.

Later, with the permission of the presiding judge, Prosecutor Zhou asked the defendant Xiang Yaqiang a few factual questions about the case. In fact, it was nothing more than how the transfer was made, how much money was collected, and whether there were any formalities.

Lawyer Zhao, as the defender, also raised several irrelevant questions.

In the following link of proof and cross-examination, the defendant and the defender had no objection to the evidence, and Xiang Yaqiang agreed with the factual evidence of the transfer of the Internet cafe.

During this period, as Xiang Dong's defender, the only thing Fang Yi had to do was to listen to what Xiang Yaqiang had to say, whether there was any disadvantage to Xiang Dong.

Fortunately, today is the trial, and Xiang's family members are listening below, what Xiang Yaqiang said is not different from what Fang Yi knew before.

The presiding judge asked the bailiff to take Xiang Yaqiang out of the courtroom pending trial and bring Xiangdong into the courtroom.Prosecutor Zhou read out the indictment again.

"...The defendant Xiangdong obtained Internet cafe-related certificates through buying and selling. In essence, he used legal means to cover up his illegal purpose and bought and sold state agency certificates. His behavior was illegal and constituted the crime of buying and selling state organ certificates.

Therefore, the defendant Xiangdong's business operation is an unauthorized business operation of Internet access services without obtaining a network culture business license, which also constitutes a crime of illegal business operation.

We believe that defendant Xiangdong’s actions violated the provisions of Articles 220 and 280 of the Criminal Law of the People’s Republic of China. The facts of the crime are clear and the evidence is reliable and sufficient. criminal responsibility.Ask the court to judge according to law.complete. " Inspector Zhou said.

"Defendant Xiangdong, did you hear clearly the indictment read out by the public prosecutor just now? Do you have any objection to the charges and criminal facts charged in the indictment?" asked the presiding judge.

"I have an objection. After signing the Internet cafe transfer contract with Xiang Yaqiang, the operation of the Internet cafe is a normal operation. It does not constitute a crime of illegal business operation, nor does it constitute a crime of buying and selling state agency certificates." Xiang Dong said.

He himself was very confused about the crimes charged by the procuratorate. Later, when he visited the detention center for the last time before the trial, Fang Yi told him to defend his innocence, which greatly increased his confidence.That's why he firmly believes that he is innocent.

"The public prosecutor can interrogate the defendant Xiang Dong about the criminal facts charged in the indictment," said the presiding judge.

"Okay, presiding judge." Prosecutor Zhou took out the questions he had prepared in advance: "Defendant Xiang Dong, how did you know that Xiang Yaqiang's Internet cafe was going to be transferred?"

"Xiang Yaqiang is my second uncle. Before he talked with others about the transfer of the Internet cafe, he failed to negotiate with others. Later, he came to me and asked me if I wanted an Internet cafe. I thought his Internet cafe was very good, so I agreed." Xiang Dong said.

"Xiang Yaqiang transferred the Internet cafe to you. How much was the price set? Did you pay?" Inspector Zhou asked.

"10 yuan, I will give it to him after we sign the agreement, and it will be transferred from the bank." Xiang Dong said.

"After you transferred, have you done any change procedures?" Inspector Zhou asked.

"No, Xiang Yaqiang told me to run the business first. Anyway, the license hasn't expired yet, and it's too late to change it together when it expires. I was thinking that my second uncle Xiang Yaqiang would not cheat me, and there would be procedures to make the change. It's quite troublesome, so I didn't make any changes." Xiang Dong said.

"After the transfer of the Internet cafe, who is running it?" Inspector Zhou asked.

"I'm running the business." Xiang Dong said.

"Presiding Judge, we're done asking." Prosecutor Zhou said.

"Does the defendant Xiangdong's defender need to ask the defendant questions?" asked the presiding judge.

"I need to ask a question." After finishing speaking, Fang Yi looked towards Xiangdong: "Defendant Xiangdong, what is your real purpose for taking over the Internet cafe?"

"The real purpose is to acquire and operate Xiang Yaqiang's Kyushu Internet Cafe, and change the investor to myself, replacing Xiang Yaqiang. To put it bluntly, I am the shareholder and actual controller of the Internet cafe." Xiang Dong said.

"Have you ever run a business before?" Fang Yi asked.

"I have done it. I run a donkey meat roast restaurant in BD city. I handle all the industrial and commercial procedures by myself, so I know a little about the company's affairs." Xiang Dong said.

The purpose of Fang Yi's questioning is very simple, that is, to tell the judge through Xiangdong's mouth that the defendant Xiangdong is buying the company and changing investors, rather than using money to buy the actual management right of the Internet cafe.This is exactly the same as what Xiang Yaqiang said before.

"Presiding judge, the defender's questioning is over," Fang Yi said.

In the next link of proof and cross-examination, Xiang Dong and defender Fang Yi cross-examined the evidence provided by the public prosecutor one by one. Like Xiang Yaqiang, they all agreed with the factual evidence of the case.

After the court investigation, the presiding judge asked the bailiff to bring Xiang Yaqiang into the court.

"The facts of this case have been investigated clearly, the court investigation is over, and the court debate is now beginning. The court debate mainly revolves around the disputed facts that have not been certified by the court and how to apply the law based on the facts.

Let the prosecutor speak first. " said the presiding judge.

Prosecutor Zhou repeated the content of the previous indictment, and believed that the defendant Xiang Yaqiang sold the Internet cafe he operated together with the relevant certificates to the defendant Xiang Dong, and both of them constituted the crime of buying and selling state agency certificates; The operation behavior of Internet cafes with relevant certificates belongs to the unauthorized operation of Internet access services without obtaining an Internet culture operation license, which constitutes the crime of illegal operation.

The next step is for the defendant to defend himself. Both Xiang Yaqiang and Xiang Dong did not believe that their actions constituted a crime, and it was a normal business transfer. They asked the court to acquit them according to the law.

"Next, the defendant's defender will give his defense opinion, and Xiang Yaqiang's defender will give his defense opinion first," said the presiding judge.

"The presiding judge, the judge: the defender believes that the Internet cafe transfer agreement signed between the two defendants in this case is an overall transfer, Xiang Yaqiang has no subjective intention to buy and sell state agency certificates, and does not constitute a crime of buying and selling state agency certificates. Please judge the defendant in accordance with the law Xiang Yaqiang is not guilty. It's over!" Lawyer Zhao said.

"Next, the defendant will express his defense opinion to Dongdong's defender," said the presiding judge.

"The presiding judge and the judge: the defender believes that in this case, the defendant Xiang Yaqiang transferred the 'Jiuzhou' Internet cafe he invested in to another defendant in this case, Xiang Dong, and issued a certificate issued by the state agency to the 'Jiuzhou' Internet cafe he invested in. Business license, network culture business license, Internet access service business site safety audit certificate, public gathering place put into use, pre-business fire safety inspection certificate and other "one license and three certificates" were handed over to Xiangdong for continued use. It does not constitute the crime of buying and selling state agency certificates, and Xiangdong's behavior does not constitute the crime of illegal business operations. The specific reasons are as follows:
[-]. The above-mentioned one license and three certificates belong to the certificates issued by the state agency to the "Jiuzhou" Internet cafe. After the transfer of the Kyushu Internet cafe to the east as a new investor, the relevant certificates of the Internet cafe will not be abolished or invalidated, and will still be valid.

According to the case file materials provided by the public prosecutor, the Jiuzhou Internet Cafe is a non-corporate private enterprise invested by Yaqiang, and it is a sole proprietorship.

According to the provisions of Article No. 15 of the "Sole Proprietorship Law", if a sole proprietorship company changes its registered items during its existence, it shall apply to the registration authority for change registration within 15 days from the date of change.

According to Article No. 13 of the "Regulations for the Administration of Registration of Sole Proprietorship Enterprises", a sole proprietorship enterprise shall apply to the original registration authority for change registration within 15 days from the date of occurrence of the cause of change to change the name and residence of the investor, the amount of capital contribution and the method of capital contribution.

At the same time, as stipulated in Article No. 17 of the Measures, if the sole proprietorship enterprise changes its investors due to transfer or inheritance, the sole proprietorship enterprise may submit a transfer agreement or legal succession documents to the original registration authority to apply for registration of changes.

(The "Measures for the Administration of Registration of Sole Proprietorship Enterprises" has been abolished on March 2022, 3, and the relevant business is subject to the "Implementation Rules of the Regulations of the People's Republic of China on the Administration of Registration of Market Entities" promulgated by the State Administration for Market Regulation)
In addition, according to Article No. 13 of the "Regulations on the Administration of Business Sites of Internet Access Services", if the business unit of an Internet access service business site changes its name, address, legal representative or main person in charge, it shall go through the registration process for the change in the administrative department for industry and commerce according to law. And go to the cultural administrative department and public security organ to go through the relevant procedures or record.

It can be seen from the above regulations that the transfer of the Kyushu Internet Cafe operated by Xiang Yaqiang to Xiangdong does not mean that the Kyushu Internet Cafe is closed or dissolved, and the Kyushu Internet Cafe has not been eliminated, and its business license is still valid.

As the transferee of Kyushu Internet Cafe, Xiangdong only needs to apply to the industrial and commercial department for change registration with the transfer agreement in accordance with the above provisions.

Similarly, Xiang Yaqiang's transfer of the Kyushu Internet Cafe to Xiangdong does not necessarily lead to the invalidation of the Kyushu Internet Cafe's network culture business license and other three certificates. After the legal representative of the network culture business license is changed, he can continue to operate the Kyushu Internet cafe legally.

[-]. Xiangdong's transfer of relevant certificates is one of the contents of the Internet cafe's transfer agreement. Although the modification procedures were not completed in time, it does not constitute the crime of buying and selling state agency certificates.There are two reasons.

First, it is Kyushu Internet cafes that are transferred to the east, not the property of Internet cafes.

According to the agreement signed by the two parties, the object of the contract transferred to the east is the Kyushu Internet cafe that operates according to the law and has the relevant licenses, rather than the transfer of the Kyushu Internet cafe’s one license and three certificates, and the use of one license and three certificates to open another Internet cafe.Relevant departments issued one license and three certificates to Kyushu Internet cafes, and Kyushu Internet cafes and investor Xiang Yaqiang are independent of each other. Therefore, the one license and three certificates of Kyushu Internet cafes do not belong to Xiang Yaqiang personally.

After Xiang Yaqiang transferred Kyushu Internet Café to Xiangdong, the user of the Internet Café's one license and three certificates did not transfer. Therefore, there was no act of buying or selling state agency certificates between the two defendants in this case.

Second, laws and regulations impose different penalties on the transfer of licenses and the failure to register for changes after the transfer of enterprises.

The Law on Sole Proprietorship Enterprises and the Regulations on the Administration of Business Sites of Internet Access Services have different punishments for the transfer of business licenses, network culture business licenses, and failure to register for changes after the transfer of enterprises. Regulation.

Article 30 of the "Sole Proprietorship Law" stipulates that anyone who alters, leases, or transfers a business license shall be ordered to make corrections, the illegal gains shall be confiscated, and a fine of less than 3000 yuan shall be imposed; if the circumstances are serious, the business license shall be revoked.

Article 30 of No.2000 stipulates that when a sole proprietorship enterprise changes its registration items, if it fails to complete the relevant modification registration in accordance with the provisions of this law, it shall be ordered to complete the modification registration within a time limit, and if it fails to do so within the time limit, it shall be fined up to [-] yuan.

Article 20 of No. [-] of the "Regulations on the Administration of Internet Access Service Business Sites" stipulates that if the operating unit of an Internet access service business site alters, leases, lends, or transfers the network culture business license in other ways, if it is not enough for criminal punishment, the cultural administrative department shall revoke the network license. Cultural business license, confiscation of illegal income, and a fine.

Article 30 of No.5000 stipulates that if the operating unit of an Internet access service business place changes its legal representative or the main person in charge fails to go through the relevant procedures or file a record with the cultural administrative department and public security organ, the cultural administrative department and public security organ shall issue a warning according to their respective functions and powers, and may In addition, a fine of less than [-] yuan shall be imposed; if the circumstances are serious, it shall be ordered to suspend business for rectification, and even revoke the network culture business license.

As an administrative crime, the crime of buying and selling certificates of state organs cannot be regulated beyond the scope of punishment for similar administrative violations.

According to the above regulations, after the transfer of Kyushu Internet cafes to Yaqiang and Xiangdong, the behavior of not going through the modification registration in time does not belong to the behavior of transferring state agency certificates stipulated in the "Sole Proprietorship Enterprise Law" and "Regulations on the Administration of Internet Service Business Sites". Naturally, it does not constitute the crime of buying and selling state agency certificates, nor does it belong to the act of buying and selling business licenses in the crime of illegal business operation stipulated in the Criminal Law.

280. The behavior of the defendant to transfer the Kyushu Internet cafe to the east is inconsistent with the crime of buying and selling state agency certificates stipulated in Article [-] of the "Criminal Law".

Article 280 of the "Criminal Law" stipulates that whoever forges, alters, buys and sells, or steals, snatches, or destroys official documents, certificates, or seals of state organs shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance, or deprivation of political rights, and shall also be fined; If it is serious, it shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be fined.

According to the above provisions, the defender believes that the crime of buying and selling state agency certificates refers to the purchaser obtaining relevant certificates through buying and selling without meeting the conditions for applying for relevant certificates.

The behavior of this crime is generally divided into two types, 1. Buying and selling certificates made in the name of state organs with false content; 2. Buying and selling certificates that the original holders applied for and obtained from state organs.The behavior of the defendant in this case to transfer the Kyushu Internet Cafe to the east does not belong to any of the above-mentioned behaviors.

[-]. The defendant Xiangdong continued to operate the Kyushu Internet Cafe after receiving the transfer. Although he did not go through the registration of license change, it did not constitute the crime of illegal business operation.

According to the provisions of Article 220 of the "Criminal Law", the crime of illegal business operations refers to violations of state regulations, engaging in unauthorized business activities, disrupting market order, and serious acts.

Article 20 of No. [-] of the "Regulations on the Administration of Internet Access Service Business Sites" stipulates that those who violate the provisions of these regulations to engage in Internet access service business activities without authorization shall be banned according to law; those who violate the criminal law shall be investigated for criminal responsibility in accordance with the provisions of the Criminal Law on the crime of illegal business operations.

The "Regulations on the Administration of Internet Access Service Business Sites" is an administrative regulation formulated by the State Council, which is a national regulation in the Criminal Law. Therefore, violations of the regulations and unauthorized engagement in Internet access service business activities without obtaining an administrative license may constitute a crime of illegal business operations.

The behavior of not going through the relevant procedures or filing with the cultural administrative department and public security organ after changing the legal representative or investor of the Internet cafe is not an act that seriously disrupts the order of the market economy as stipulated in the regulations, and it also does not comply with Article 220 of the Criminal Law. the regulations.

In this case, the defendant Xiang Yaqiang signed a Kyushu Internet cafe transfer agreement with Xiangdong, and Xiang Yaqiang transferred the Kyushu Internet cafe and computer equipment he operated to Xiangdong.

On the surface, the defendant in this case, Xiangdong, acquired the network culture business license because of the transfer of the Kyushu Internet Cafe. He did not buy and sell the network culture business license separately, and used the license to carry out Internet access service business activities in other places. , does not belong to unauthorized Internet access service business activities.

In essence, after Xiangdong took over the Kyushu Internet Cafe, although he did not promptly change the legal representative information registered on the business license and the Internet Culture Operation Permit as required, the Internet Culture Operation Permit was used as a reference to the Kyushu Internet Cafe’s business address, business operations, etc. The compliance confirmation of operating requirements such as area, number of computers and other devices and auxiliary equipment, information network security management system, and security technical measures are still legal and valid.

Xiangdong continued to operate the Kyushu Internet Cafe under the original address, original business place and original business scale, without disturbing the business order of the Internet access service market.Therefore, Xiangdong's behavior does not constitute the crime of illegal business operation.

In summary, the defender believes that the defendant Xiangdong's transfer of the Kyushu Internet Cafe is a normal commercial behavior and does not constitute a crime, and the court is requested to adjudicate the defendant Xiangdong's innocence in accordance with the law.complete! "Fang Yi said.

Lawyer Zhao on the side was very unbalanced, and thought: Lawyer Fang, why are you talking so much, you can't tell the judge that the defendant did not constitute a crime cleanly, how troublesome it is!You say so much, I say so little, how embarrassing you let my family look at me!
The family members of Xiang's second child (Xiang Yaqiang) in the auditorium were also churning in their hearts: Sure enough, you get what you pay for. We hired Lawyer Zhao for less money, so Lawyer Zhao only said a few words; Xing Ping spent a lot of money to hire lawyer Fang, and sure enough, lawyer Fang had a lot of defense opinions.

The presiding judge was also annoyed. After reading the case file before, he didn’t know how many times he had greeted the procuratorate guys, and secretly said: Although we are a small county with few people in the world, the behavior of enterprise transfer is legal and can activate the economy. , you don't know? !Isn't this looking for trouble for us?There are so many cases in the court, we can't let us rest for a while.

Even though he thought so, he seemed calm on the surface, and he didn't show it at all. There must be no less procedures in the court trial.

"The prosecutor can respond to the defender's defense opinion." The presiding judge said.

"Good presiding judge, regarding the defense opinion of defendant Xiangdong's defender, we issue the following opinion.

We believe that as long as it violates any laws and regulations of the state on the management of market operations, it can be identified as an objective act of illegal business operations.

In this case, the defendant Xiangdong illegally accepted minors to surf the Internet in Internet cafes, which was also an illegal business operation, and his behavior constituted the crime of illegal business operation.complete. "Prosecutor Zhou was very unconvinced by Fang Yi's defense opinion.

"Defendant Xiangdong's defender can respond to the prosecutor's opinion." The presiding judge said blankly.

"Based on the Prosecutor's defense opinion and response, the defender issued the following defense opinion:

The defender believes that the prosecutor's opinion essentially regards the market order, a similar object stipulated in Chapter 3 of the criminal law, as the direct object of the crime of illegal business operation.

According to the public prosecutor's explanation, the crime of illegal business operation stipulated in the "Criminal Law" is the crime of speculation stipulated in the 3 "Criminal Law". All crimes can be identified as illegal business crimes.

Obviously, this is not in line with the legislative intent of the [-] Criminal Law amendment to cancel the crime of speculation, nor is it in line with the basic legal principle that criminal legislation sets charges and that crimes should be made clear in order to achieve a legally prescribed punishment.

The object of violation of the crime of illegal business operation should be a specific system or several systems, rather than a general market management system. Therefore, the defendant in this case, Xiangdong, violated the relevant management system and accepted minors to surf the Internet in Internet cafes. It was determined that it constituted the crime of illegal business operation.

Therefore, the defender believes that the behavior of the defendant Xiangdong is not enough to constitute the crime of illegal business operation.complete! "Fang Yi thought to himself: Since you are labeling yourself indiscriminately, then I can only confront you."

Attorney Zhao felt at ease, and said to himself: pinch, both of you pinch hard!If Xiang Dong is not guilty, then Xiang Yaqiang will also be innocent; if Xiang Dong is found guilty, Attorney Fang can serve as my shield.

The abacus in his heart was crackling!

……

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(End of this chapter)