Lawyer

Chapter 962 Plan B
After hearing the inspector's response, Du Yong suddenly realized that he had made a mistake. The financial market is also a market, and it is inappropriate to understand financial order and market order separately.Careless!Fortunately, there is a plan B.

"The defender can respond to the prosecutor's opinion." The presiding judge looked at him expressionlessly.

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

Although the behavior of the defendant in this case falls within the circumstances stipulated in item 225 of Article [-] of the Criminal Law, according to the above-mentioned provisions, only the crime of "disturbing the market order and the circumstances are serious" constitutes the crime of illegal business operation, and the behavior of the defendant in this case has not reached the The degree of 'serious circumstances' does not constitute the crime of illegal business operation.The specific reasons are as follows:
In 225, the Supreme People's Procuratorate and the Ministry of Public Security jointly issued the "Regulations on the Standards for Filing and Prosecuting Criminal Cases under the Jurisdiction of Public Security Organs (II)" (hereinafter referred to as "Standard II"), which included Article 5, Item 1 of the Criminal Law. The individual crime prosecution standard stipulates that 'the amount of illegal business operations is more than [-] yuan, or the amount of illegal gains is more than [-] yuan'.

The illegal business turnover of the defendant in this case was 13 yuan. If this standard is applied, it is obvious that the defendant’s behavior constitutes the crime of illegal business operation. "

As soon as Du Yong's words fell, Lai Zixing in the defendant's seat was startled. What does this mean? Why didn't the lawyer I hired speak for me, and said along with the procuratorate, betrayed? !
"However, we believe that the standard cannot be simply applied to the defendant's illegal pawn business. The reasons are as follows:
First, the provisions on the standard for prosecution in Item 225 of Article 2001 of the Criminal Law in "Standard II" come from the "Regulations on Prosecution Standards for Economic Crime Cases" jointly issued by the Supreme People's Procuratorate and the Ministry of Public Security in [-], and "Standard II" continues to apply basis for this standard.

At that time, the standard was mainly aimed at the illegal operation of monopoly, monopoly or other restricted items in the field of production and distribution, as well as the behavior of buying and selling business licenses or approval documents.

As an illegal business operation in the general production and circulation fields, if the illegal business turnover of an individual reaches more than 5 yuan or the amount of illegal income is more than 1 yuan, it can be deemed to have reached the level of "serious circumstances" and disrupted the market order.

However, illegal financial activities are different from illegal business activities in the fields of production and circulation. The former is usually of huge amount. If the above-mentioned standard is used to determine that the circumstances are serious, even if the above-mentioned amount standard is met, it may not necessarily cause a serious disruption of market order. Therefore, the above-mentioned standard applies. It is obviously too low to measure the seriousness of illegal financial activities and is not suitable.

Second, "Standard 225" stipulates that the third item of Article 30 of the "Criminal Law", that is, the standard for filing and prosecuting illegal securities, futures, and insurance businesses, stipulates that "the amount of illegal operations is more than 200 yuan", and illegally engaged in fund payment and settlement business The standard for filing a case for prosecution is stipulated as 'the amount is more than [-] million yuan'.

It can be seen that "Standard II" has stipulated a special standard for the determination of serious circumstances for financial business, and this special standard clearly applies a higher amount standard.The reason for this is to take into account the particularity of illegal financial business.

The defendant’s illegal car loan business in this case is also regarded as an illegal financial business, and should also refer to the amount standard stipulated in the third item of Article 225 in the "Standard II" instead of simply applying the standard in the fourth item.

Third, from the perspective of the effectiveness of "Standard II", according to the "Regulations on the Reference and Application in the Trial of Economic Crimes" issued by the Supreme People's Court in 2010 (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 ([-])) the provisions of the notice:

[-]. If the Supreme People's Court has no standards for the conviction and sentencing of relevant economic crimes, the people's courts may refer to and apply the provisions of "Standard II" when trying economic crime cases.

[-]. In the process of referring to the application of "Standard [-]", if the people's courts at all levels believe that the relevant provisions of "Standard [-]" cannot meet the needs of the trial of the case, they must consider the specific circumstances of the case and the local reality, and handle the case according to law prudently and steadily. Applicable and policy grasp, strive for better social effect.

In this case:

First, in terms of the amount of the crime, the defendant’s illegal business volume was only 13 yuan, and his illegal income was less than 2 yuan, which was far from the standard of "the illegal business volume is more than 30 yuan";

Second, from the perspective of business scale, the defendant only carried out the car mortgage loan business with two parties, did not actually involve an unspecified majority of the society, and did not cause serious disruption of the local financial order;
Third, from the perspective of subjective intent, the defendant subjectively only hoped to obtain certain economic benefits through the business activities, and had no hope or direct intent to disrupt the financial order;

Fourth, from the perspective of financial capacity, due to the lack of operating funds, the defendant's company's operation is objectively unsustainable, and it is difficult to pose a substantial threat to financial security.

To sum up, the defendant's illegal engagement in car mortgage loans has not yet reached the level of 'serious circumstances' and does not constitute the crime of illegal business operation.complete. "Du Yong replied.

（注：2022年4月29日，最高人民检察院、公安部联合发布了修订后的《关于公安机关管辖的刑事案件立案追诉标准的规定（二）》，该规定自2022年5月15日施行。

"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 (II)" (Gong Tong Zi [2010] No. 23) Standard Provisions (2011) Supplementary Provisions (Gongtongzi [47] No. [-]) shall be abolished at the same time. )
……

After the trial, out of prudence, the collegial panel did not pronounce the verdict in court.Outside the gate of the court, Du Yong and Cheng both persuaded the defendant Lai Zixing's daughter-in-law Wang Jie, and went back to the law firm.

On the morning of the fourth day after the trial, Du Yong received a call from the judge, informing him that the procuratorate had applied for withdrawal of the case, and that the court had just issued a ruling to allow the withdrawal of the case, and asked him to go to the court to receive the ruling and notify his family members to go to the detention center in the afternoon. pick up.

Then Du Yong called Lai Zixing's daughter-in-law, Wang Jie, and told him about the withdrawal of the prosecution by the procuratorate, and asked him to pick up Lai Zixing at the gate of the detention center at three o'clock in the afternoon. Wang Jie's cry came from the phone.

In the afternoon, Du Yong drove to the court first to receive the ruling.

The court held that the procuratorate's application to withdraw the prosecution of the defendant Lai Zixing for the crime of illegal business operations complied with the law, and in accordance with the provisions of Article 177 of the Interpretation of the Supreme Court on Several Issues Concerning Enforcement (Criminal Procedure Law), it ruled to allow the procuratorate to withdraw the prosecution of the defendant. Lai Zixing was prosecuted for the crime of illegal business operation.

(End of this chapter)