Lawyer's character

After a while, the three male judges from the collegial bench walked into the courtroom, and Prosecutor Zhou and his colleagues who had been seen before in the public prosecution box were whispering.

After completing the previous procedures and checking the basic information of the defendant, the presiding judge first asked the bailiff to take Xiangdong away from the court to await trial. When there are multiple defendants in the same criminal case, court investigations need to be conducted separately.

The presiding judge said: "We are now conducting court investigation and asking the prosecutor to read out the indictment against Yaqiang."

“...We believe that the defendants transferred Internet cafes with business licenses, Internet culture business licenses and other legal licenses to Yaqiang and Xiangdong, but did not go through the change registration procedures. In essence, they were buying and selling state agency documents and using legal forms to cover up Unlawful purpose.

The defendant Xiang Yaqiang's behavior violated the provisions of Article 280 of the Criminal Law of the People's Republic of China. The criminal facts are clear and the evidence is reliable and sufficient. He should be held criminally responsible for the crime of buying and selling state agency documents. Please ask the court to rule according to law. complete! "Inspector Zhou said.

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

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

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

As the defender, Lawyer Zhao also asked a few innocuous questions.

In the subsequent evidence and cross-examination session, the defendant and defender had no objections to the evidence, and both Xiang Yaqiang recognized the factual evidence of the transfer of the Internet cafe.

During this period, as Xiangdong's defender, the only thing Fang Yi had to do was to listen to what Xiang Yaqiang said and whether there was anything disadvantageous to Xiangdong.

Fortunately, today is the court hearing, and Xiang's family members are listening below. What Xiang Yaqiang said is consistent with what Qian Yi knew.

The presiding judge asked the bailiff to take Xiang Yaqiang out of the court to await trial, and brought Xiang Dong into the court. Prosecutor Zhou read out the indictment again.

“…The defendant Xiangdong obtained the relevant certificates of the Internet cafe through buying and selling. In essence, he used legal forms to cover up the illegal purpose and bought and sold the certificates of the state agencies. His behavior was illegal and constituted the crime of buying and selling the certificates of the state agencies.

Therefore, the defendant Xiangdong’s business behavior was engaged in Internet service business activities without obtaining an Internet culture business license, which also constituted the crime of illegal business operations.

We believe that the defendant Xiangdong’s behavior violated the provisions of Articles 225 and 280 of the Criminal Law of the People’s Republic of China respectively. The criminal facts are clear and the evidence is reliable and sufficient. He should be charged with the crime of illegal business operations, He will be held criminally responsible for the crime of buying and selling state agency documents. Please ask the court to rule according to law. complete. "Inspector Zhou said.

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

"I have objections. After I signed an Internet cafe transfer contract with Xiang Yaqiang, I ran the Internet cafe. It is a normal operation and does not constitute the crime of illegal business operations or the crime of buying and selling state agency documents." Xiang Dong said.

He himself was very confused about the charges charged by the procuratorate. Later, when he went to the detention center for the last meeting before the trial, Fang Yi told him that he would defend his innocence, which greatly increased his confidence. That's why he firmly believes that he is not guilty.

"The public prosecutor can question the defendant Xiangdong about the criminal facts alleged in the indictment," the presiding judge said.

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

"Xiang Yaqiang is my second uncle. He had previously failed to reach an agreement with others about the transfer of the Internet cafe. Later, he found me and asked me if I wanted an Internet cafe. I thought his Internet cafe was quite 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.

"One hundred thousand yuan. I gave it to him after we signed the agreement. It was transferred from the bank." Xiangdong said.

"Did you go through any change procedures after the transfer?" Inspector Zhou asked.

"No, Xiang Yaqiang told me to run the business first. Anyway, the license has not expired. It is too late to change it when it expires. I thought that my second uncle Xiang Yaqiang would not cheat me, and there are still formalities to change. It was quite troublesome, so I didn’t make any changes." Xiangdong said.

"Who is running the Internet cafe after it is transferred?" Inspector Zhou asked.

"I'm in charge," Xiangdong said.

"Presiding Judge, we've finished asking questions." Prosecutor Zhou said.

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

"I need to ask a question." After saying that, Fang Yi looked at Xiangdong: "Defendant Xiangdong, what is the real purpose of accepting the transfer of the Internet cafe?"

"The real purpose is to acquire Xiang Yaqiang's Jiuzhou Internet Cafe and run it. The investor will be changed to myself, replacing Xiang Yaqiang. To put it bluntly, I will be the shareholder and actual controller of the Internet cafe." Xiang Dong said.

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

"I have run a business before. I run a donkey meat barbecue restaurant in BD city. I have done all the industrial and commercial procedures myself, so I know a little about the company." Xiangdong said.

The purpose of Fang Yi's inquiry was very simple, which was to tell the judge through Xiangdong's words that the defendant Xiangdong was acquiring the company and changing investors, rather than using money to buy the actual operating rights of the Internet cafe. This is consistent with what Xiang Yaqiang said before.

"Presiding judge, the defender has finished asking questions." Fang Yi said.

In the next section of evidence and cross-examination, Xiang Dong and defender Fang Yi cross-examined the evidence provided by the prosecutor one by one. Like Xiang Yaqiang, they all recognized the evidence on the facts of the case.

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

“The facts of this case have been clearly investigated, the court investigation has ended, and now the court debate has begun. The court debate mainly revolves around the disputed facts that have not been certified by the court and the issue of how the law should be applied based on the facts.

The prosecutor will speak first. "The chief judge said.

Prosecutor Zhou repeated the contents of the previous indictment and believed that the defendant Xiang Yaqiang sold the Internet cafe he ran and relevant certificates to the defendant Xiang Dong. Both of them were guilty of buying and selling state agency certificates; The business behavior behind the relevant certificates of Internet cafes is to engage in Internet service business activities without obtaining an Internet culture business license, which constitutes the crime of illegal business operations.

The next step is for the defendant to defend himself. Neither Xiang Yaqiang nor Xiang Dong believes that their behavior constitutes a crime and is a normal business transfer. They ask the court to rule not guilty in accordance with the law.

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

"Presiding Judge, Judge: The defender believes that the Internet cafe transfer agreement signed between the two defendants in this case is a complete transfer. Xiang Yaqiang did not have any subjective intention to buy or sell state agency documents, and it does not constitute the crime of buying or selling state agency documents. Please ask the court to sentence the defendant in accordance with the law. Xiang Yaqiang is not guilty. Over!" Lawyer Zhao said.

"Now the defendant Xiangdong's defender will give his defense opinion," the presiding judge said.

"Presiding judge, judge: The defender believes that in this case, the defendant Xiang Yaqiang transferred the 'Jiuzhou' Internet cafe he invested in to Xiangdong, another defendant in this case, and issued a license from the state agency to the 'Jiuzhou' Internet cafe he invested in. The "one license and three certificates" such as the business license, Internet culture business license, Internet service business premises safety audit certificate, public gathering place put into use, and pre-business fire safety inspection certificate were handed over to Xiangdong for continued use. It does not constitute the crime of buying or selling state agency documents, nor does Xiangdong’s behavior constitute the crime of illegal business operations. The specific reasons are as follows:

1. The above-mentioned one license and three certificates are the certificates issued by the state agencies to the "Jiuzhou" Internet cafe. After Xiangdong transferred Jiuzhou Internet Cafe as a new investor, the relevant certificates and licenses of the Internet cafe have not been abolished or invalidated and are still valid.

According to the case file materials provided by the prosecutor, Jiuzhou Internet Cafe is a non-corporate private enterprise established by Xiang Yaqiang’s personal investment and is a sole proprietorship.

According to the provisions of Article 15 of the Sole Proprietorship Law, if the registration matters of a sole proprietorship change during its existence, it shall apply to the registration authority for registration change within 15 days from the date of change.

According to the provisions of Article 13 of the "Registration and Management Measures for Sole Proprietorships", if a sole proprietorship changes the name and residence of the investor, the amount of capital contribution, and the method of capital contribution, it must apply for change registration to the original registration authority within 15 days from the date of the change.

At the same time, Article 17 of the Measures stipulates that if a sole proprietorship changes its investors due to transfer or inheritance, the sole proprietorship may submit a transfer agreement or legal succession document to the original registration authority and apply for change registration.

(The "Measures for the Registration and Management of Sole Proprietorships" have been abolished on March 1, 2022, and relevant business shall be subject to the "Detailed Implementation Rules of the Regulations of the People's Republic of China on the Registration and Management of Market Entities" promulgated by the State Administration for Market Regulation)

In addition, according to Article 13 of the "Regulations on the Management of Business Sites for Internet Access Services", if an operating unit of an Internet access service business venue changes its name, address, legal representative or principal responsible person, it must go to the industrial and commercial administrative department to register the change in accordance with the law. And go to the cultural administration department and public security organ to go through relevant procedures or record.

It can be seen from the above regulations that Xiang Yaqiang's transfer of the Jiuzhou Internet Cafe he operates to Xiangdong does not mean that Jiuzhou Internet Cafe ceases operations or is disbanded. Jiuzhou Internet Cafe has not been eliminated, and its business license is still valid.

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

Similarly, Xiang Yaqiang's transfer of Jiuzhou Internet Cafe to Xiangdong does not necessarily lead to the invalidation of Jiuzhou Internet Cafe's Internet culture business license and other three certificates. After Xiangdong has changed the registration with the industrial and commercial department, he will then go to the cultural competent department with the new business license to After the legal representative of the Internet Culture Business License is changed, Jiuzhou Internet Cafe can continue to operate legally.

2. The transfer of relevant certificates and licenses by Xiangdong is one of the contents of the Internet cafe transfer agreement. Although the change procedures were not completed in time, it does not constitute the crime of buying and selling state agency certificates. There are two reasons.

First, what Xiangdong received was the Jiuzhou Internet Café, not the property of the Internet café.

According to the agreement signed by both parties, the subject matter of the contract transferred to Xiangdong is Jiuzhou Internet Cafe that is operated in accordance with the law and has relevant licenses. It is not the transferee of Jiuzhou Internet Cafe’s one license and three certificates, and borrows one license and three certificates to open another Internet cafe. Relevant departments will issue one license and three certificates to Jiuzhou Internet Cafe, and Jiuzhou Internet Cafe and investor Xiang Yaqiang are independent of each other. Therefore, the one license and three certificates of Jiuzhou Internet Cafe do not belong to Xiang Yaqiang personally.

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

Second, laws and regulations provide different penalties for the transfer of licenses and the failure to register changes after enterprise transfer.

The "Sole Proprietorship Law" and the "Regulations on the Management of Business Places for Internet Access Services" provide different penalties for operators' transfer of business licenses, Internet culture business licenses and failure to register changes as required after the transfer of the enterprise. Regulation.

Article 35 of the Sole Proprietorship Law stipulates that anyone who alters, rents, or transfers a business license shall be ordered to make corrections, illegal gains shall be confiscated, and a fine of not more than 3,000 yuan shall be imposed; if the circumstances are serious, the business license shall be revoked.

Article 37 stipulates that when a sole proprietorship's registration items are changed and the relevant change registration is not handled in accordance with the provisions of this Law, the change registration shall be ordered within a time limit. If the change registration is not completed within the time limit, a fine of not more than 2,000 yuan shall be imposed.

Article 29 of the "Regulations on the Management of Business Venues for Internet Access Services" stipulates that if an operating unit of an Internet access service business premises alters, rents, lends or otherwise transfers an Internet culture business license that is not sufficient for criminal punishment, it shall be revoked by the cultural administrative department. Internet culture business license, illegal gains will be confiscated, and fines will be imposed.

Article 32 stipulates that if an Internet access service business unit changes its legal representative or main person in charge without completing relevant procedures or filing with the cultural administration department or public security agency, the cultural administration department and public security agency will give a warning in accordance with their respective powers. A fine of not more than 15,000 yuan may be imposed; if the circumstances are serious, the company may be ordered to suspend business for rectification, or even have its Internet culture business license revoked.

As an administrative crime, the crime of buying and selling state agency documents cannot exceed the scope of punishment for similar administrative violations.

According to the above provisions, Xiang Yaqiang and Xiangdong's failure to handle the change of registration in time after transferring Jiuzhou Internet Cafe is not an act of transferring state agency certificates as stipulated in the "Sole Proprietorship Law" and the "Regulations on the Management of Internet Service Business Places". Naturally, it does not constitute the crime of buying and selling state agency documents, nor does it fall into the crime of buying and selling business licenses under the crime of illegal business stipulated in the Criminal Law.

3. The defendant’s behavior of accepting the transfer of Jiuzhou Internet Cafe from Xiangdong is inconsistent with the crime of buying and selling state agency certificates stipulated in Article 280 of the Criminal Law.

Article 280 of the Criminal Law stipulates that whoever forges, alters, buys and sells, steals, robs, or destroys official documents, certificates, and seals of state agencies 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 punished fine; if the circumstances are serious, he 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 documents refers to the purchaser obtaining relevant documents through buying and selling without meeting the conditions to apply for the relevant documents.

The behavior of this crime is generally divided into two types: 1. Buying and selling certificates produced in the name of state agencies with false contents; 2. Buying and selling certificates that the original holder applied for and obtained from state agencies. The behavior of the defendant in this case to accept the transfer of Jiuzhou Internet Cafe from Xiangdong does not fall into any of the above behaviors.

4. The defendant Xiangdong continued to operate the Jiuzhou Internet Cafe after receiving the transfer. Although he did not apply for license change registration, it did not constitute the crime of illegal operation.

According to Article 225 of the Criminal Law, the crime of illegal business operations refers to violations of national regulations, engaging in unauthorized business activities, disrupting market order, and serious acts.

Article 27 of the "Regulations on the Management of Business Sites for Internet Access Services" stipulates that anyone who violates the provisions of these Regulations and engages in Internet access service business activities without authorization shall be banned in accordance with the law; those who violate criminal laws shall be investigated for criminal liability in accordance with the provisions of the Criminal Law on the crime of illegal business operations.

The "Regulations on the Management of Business Sites for Internet Access Services" is an administrative regulation formulated by the State Council and is a national provision in the criminal law. Therefore, violating the regulations and engaging in Internet access service business activities without obtaining an administrative license may constitute the crime of illegal business operations.

The behavior of failing to go through relevant procedures or filing with the cultural administration department or public security agency after changing the legal representative or investor of an Internet cafe does not constitute behavior that seriously disrupts the market economic order as stipulated in the regulations, and does not comply with Article 200 of the Criminal Law. The provisions of Article 25.

In this case, the defendant Xiang Yaqiang signed a Jiuzhou Internet Cafe Transfer Agreement with Xiangdong, and Xiang Yaqiang transferred the Jiuzhou Internet Cafe and computer equipment he operated to Xiangdong.

On the surface, the defendant Xiangdong in this case received the Internet culture business license as a result of the transfer of the Jiuzhou Internet Cafe. He did not buy and sell the Internet culture business license separately, and used the license to carry out Internet service business activities in other places. , does not constitute unauthorized Internet access service business activities.

In essence, after Xiangdong was transferred to Jiuzhou Internet Cafe, although it did not promptly change the legal representative information registered on the business license and Internet Culture Business License as required, the Internet Culture Business License was used as a reference to Jiuzhou Internet Cafe’s business address, business Compliance confirmation of operating requirements such as area, number of computers and other devices and ancillary equipment, information network security management systems and security technical measures are still legal and valid.

Xiangdong continues to operate Jiuzhou Internet Cafe at its original address, original business premises and original business scale, without disrupting the operating order of the Internet access service market. Therefore, Xiangdong’s behavior does not constitute the crime of illegal business operations.

To sum up, the defender believes that the defendant Xiangdong’s transfer of the Jiuzhou Internet Cafe is a normal business behavior and does not constitute a crime. He requests the court to rule that the defendant Xiangdong is not guilty in accordance with the law. complete! "Fang Yi said.

Lawyer Zhao on the side felt very unbalanced and thought to himself: Lawyer Fang, why are you talking so much? You can’t tell the judge clearly and clearly that the defendant did not commit a crime. It’s so troublesome to be so long-winded! You say so much and I say so little. How can you make Xiang’s family look at me? It’s so embarrassing!

The family members of Xiang Lao Er (Xiang Yaqiang) in the auditorium were also churning in their hearts: You really get what you pay for. We paid less for lawyer Zhao, so lawyer Zhao only said a few words; Xing Ping spent a lot of money to hire lawyer Fang, and as expected, lawyer Fang also gave a lot of defense opinions.

The presiding judge was also annoyed. After reading the case file before, I didn’t know how many times I greeted the guys from the Procuratorate. He said to himself: Although we are a small county and have little exposure to the world, the transfer of enterprises is legal and can invigorate the economy. , don’t you know? ! Isn't this causing trouble for us? There are so many cases in the court that we cannot rest for a while.

Even though he thought so, he appeared to be calm and calm on the surface, and he didn't bring it out at all. The procedures that should be followed in the trial must not be omitted.

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

“Okay presiding judge, in response to the defense opinions of the defendant Xiangdong’s defender, we make the following comments.

We believe that as long as it violates any national laws and regulations governing market operations, it can be considered an objective act of illegal operation.

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

"Defendant Xiangdong's defender can respond to the prosecutor's opinions." the presiding judge said expressionlessly.

“Based on the prosecutor’s defense opinions and response, the defender issued the following defense opinions:

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

If we follow the prosecutor's interpretation, the crime of illegal business operations stipulated in the sub-provisions of the Criminal Law is the crime of speculation stipulated in the 1979 Criminal Law. All violations of the relevant national market economy management laws stipulated in Chapter 3 of the sub-provisions of the Criminal Law All institutional crimes can be identified as illegal business crimes and legal violations.

Obviously, this is inconsistent with the legislative intention of amending the Criminal Law in 1979 to cancel the crime of speculation, and it is also inconsistent with the basic legal principle that criminal legislation establishes crimes and the charges should be clear in order to achieve statutory penalties.

The object of the crime of illegal business operations should be a specific system or systems, rather than a general market management system. Therefore, the defendant Xiangdong in this case cannot be accused of violating relevant management systems by allowing minors to surf the Internet in Internet cafes. It was determined that it constituted the crime of illegal business operations.

Therefore, the defender believes that the defendant Xiangdong’s behavior is not enough to constitute the crime of illegal business. complete! Fang Yi secretly said: Since you are arbitrarily labeling me, I can only tit for tat.

Lawyer Zhao felt comfortable and said to himself: "Pinch it, both of you, pinch it hard!" If Xiang Dong is not guilty, then Xiang Yaqiang will definitely be innocent as well; if Xiang Dong is found guilty, Lawyer Fang can serve as my shield.

The calculations in his heart were rattling!

…

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