Lawyer

Chapter 960 Unauthorized establishment of financial institutions
At the workstation, Cheng Du frowned, his eyes switching back and forth between the file materials of Lai Zixing’s illegal business operation case and the computer screen, and his right hand kept turning the pencil, which was a habit he developed when he was in school, because he I feel that only in this way can he concentrate and think about the problem.

After Yu Wendong typed out the defense opinion of a case on the computer, he got up and stretched. He was surprised to see that Cheng Du next to him had entered the state of no self and no other. He did not expect this guy to handle a case. To be so serious, you are completely different from usual.It is estimated that if he is not called to eat, he can study the case for a day.

At this moment, Du Yong came over: "How is the case going?"

"Master, do you think it is possible for Lai Zixing to constitute the crime of establishing a financial institution without authorization?" Cheng Du got up and asked suddenly.

"Oh? Let's go, take the case file, and let's go to Boss Fang's office." Du Yong saw that more than half of the team members are in the office today, and it is easy to disturb others when discussing the case at their workstations.Fang Yi happened to go to the court just now, and he couldn't come back for a while, so he took his apprentice to Fang Yi's office.

Fang Yi's team has a habit, as long as Boss Fang is away, his office is the best place for team members to discuss cases.There is no way to stay in Fang Yi's office every Friday meeting, and not go to meetings, everyone has formed a habit.

At first, Cheng Du was still a little nervous, thinking that it was not good to enter other people's offices when Boss Fang was away, but later he saw that everyone was like this, so he went to do as the Romans did.

"Tell me what you think." After Du Yong sat down, he looked at Cheng Du who was opposite, and the latter took out the documents in his hand after sitting down.

"Master, let me explain my understanding, and see if what I said makes sense.

According to the provisions of Article 174 of the "Criminal Law", establishing a commercial bank, stock exchange, futures exchange, securities company, futures brokerage company, insurance company or other financial institution without the approval of the relevant competent department of the state constitutes the establishment of a financial institution without authorization. crime.

I checked on the Internet, and the so-called "unauthorized establishment of financial institutions" generally manifests itself in two situations:

One is that the perpetrators did not apply for the establishment according to the law to the relevant national authorities such as the People's Bank of China, which has the authority to approve. This kind of situation is more common in units and individuals that do not have the conditions to establish financial institutions.

The second is that although the perpetrator submitted the application materials, the relevant competent department did not approve the application and did not issue a financial business license after reviewing that it did not meet the requirements.

In this case, the "Dafa Company" established by the defendant was not only not approved by any financial authority, but also did not even meet the conditions for registration with the industrial and commercial administrative authority, which is clearly an illegal establishment.

Financial institutions as prescribed in Article 174 of the "Criminal Law" refer to institutions engaged in or mainly engaged in financial business activities such as deposit taking, loan granting, settlement, bill discounting, fund lending, trust investment, financial leasing, financing guarantee, foreign exchange trading, etc.

Generally include commercial banks, stock exchanges, futures exchanges, securities companies, futures brokerage companies, insurance companies, financial leasing companies, guarantee companies, rural credit cooperatives, etc.

Judging from the business operated by 'Dafa Company', the operation method of Dafa Company conforms to the characteristics of pawn shops in the "Pawn Management Measures", that is, 'the pawnees pledge their movable property and property rights as pawns or their real estate as pawns. The act of pawning a pawn to a pawnshop, paying a certain percentage of fees, obtaining the pawn, paying interest on the pawn, repaying the pawn, and redeeming the pawn within the agreed time limit'.

From the essence of pawning behavior, pawnshops should belong to financial institutions.Therefore, the defendant's illegal establishment of the "Dafa Company" that actually engages in pawn activities conforms to the constitutional characteristics of the crime of establishing a financial institution without authorization.

Therefore, I think the behavior of the defendant Lai Zixing may constitute the crime of establishing a financial institution without authorization. After finishing speaking, Cheng Du put down the materials in his hand and looked at Du Yong.

"Well, it's commendable to be able to think about the case independently and actively. I thought about it that way at first, but then I rejected this idea." Du Yong leaned on his chair and said with a smile.

Leading apprentices is most afraid of copying what others say. The apprentices can say what the master says, and the apprentices can't think independently.The master's words may not be [-]% correct, so if an apprentice wants to be better than blue, he must have his own independent ideas, actively analyze the case, and learn from the master's way of analyzing the case, but he must not be limited to this.

Du Yong was very happy that Cheng could say such a thing.

"Master, why did you reject this idea? Is there any problem with this idea?" Cheng asked incomprehensibly. In his opinion, his idea was well-founded and there was nothing wrong with it.

"Although what you said is reasonable, the original intention of the criminal law to stipulate the crime of establishing a financial institution without authorization is not so simple.

This crime does not require the specific development of financial business, and the punishment is only for the simple establishment. However, the reason why the Criminal Law directly recognizes such a simple establishment as a crime is that this type of behavior poses a potentially serious danger to financial security.

From this point of view, if the act of establishment constitutes the crime of establishing a financial institution without authorization, it must essentially pose a potential serious danger to financial security. If the act is unlikely to cause serious danger to financial security, it cannot constitute the crime.

According to the literal provisions of Article 174 of the "Criminal Law", it seems that as long as the perpetrator implements the act of illegally establishing a financial institution, it can constitute the crime of establishing a financial institution without authorization.However, in a specific case, to determine that the behavior that meets the constitutive characteristics of the crime constitutes the crime, it must also be determined whether the behavior may cause serious danger to financial security in terms of circumstances.

Whether it constitutes the crime of establishing a financial institution without authorization can be analyzed from two aspects, namely, formal elements and substantive elements:
The first aspect (formal requirements) is whether the institution illegally established by the perpetrator has some necessary formal characteristics of a legal financial institution, such as the name of the institution, organizational department, articles of association, business location, etc.

Because in practice, the so-called financial institutions established by the perpetrators are illegal only because they lack the approval requirements of the relevant national authorities, while other requirements are usually basically met. Someone will have financial business dealings with it.

The second aspect (substantial requirements) is whether the institution illegally established by the perpetrator has the substantive ability to carry out corresponding financial business, including financial strength and professionals.

If you do not have the actual ability to carry out corresponding financial business, it is impossible to carry out relevant financial business for the society, let alone the danger of seriously endangering financial order and financial security.

In this case, the "Dafa Company" established by the defendant was only a house rented by the defendant in the wholesale market and listed for business. It did not perform any approval procedures including the most basic registration with the industrial and commercial department.

'Dafa Company' does not have the name of a pawn or other financial institution, nor does it have a company's articles of association and corresponding system regulations; according to the evidence on file, the "company" does not have sufficient operating funds (all loans are from business transactions Temporary borrowing), the business carried out is extremely irregular (all the car loan agreements are handwritten), and there are not enough professional practitioners (there is only one defendant, and the defendant does not have a professional financial knowledge background).

To sum up, 'Dafa Company' does not meet the formal and substantive requirements of a financial institution stipulated in Article 174 of the Criminal Law, and it does not reach the level of harm that threatens financial security and disrupts financial order. Therefore, it cannot establish a financial institution without authorization. Criminal punishment. "Du Yong explained.

　Three chapters today!
　　
　
(End of this chapter)