Lawyer's character

After investigation, as of the incident, Gui Hanxin and Ai Shicai had sold a total of 2,136,200 shares of the above-mentioned five unlisted joint-stock companies to 316 investors. (Originally, the five companies did not have so many shares. After the shares were split, the company's shares increased). The total sales amount reached RMB 7,698,300, with a profit of more than RMB 3.1 million. Yuan.

Practice has proved that no matter how the relevant departments publicize and educate, or the police warn the people, there will always be many people who dream of getting rich overnight, desperate for that distant and illusory huge profit, and end up in a mess.

After the incident, the defendant's family found Lawyer Liu, the legal counsel of Wanli Investment Co., Ltd., and entrusted him and his colleagues to defend the two defendants.

A year later, the cases of Gui Hanxin and Ai Shicai were transferred by the Procuratorate to the Municipal Intermediate Court. A week ago, the Intermediate Court heard the case.

Defendants Gui Hanxin and Ai Shicai and their defenders have no objection to the basic facts charged in the indictment.

The defender believes that the three defendants are not guilty of illegal business operations for the following main reasons:

First, the defendant's unit and the defendant were engaged in property rights transfer business, not securities business;

Second, the equity of an unlisted joint-stock company can be transferred in accordance with the law, and the actions of the defendant unit and defendant are legal;

Third, after the industrial and commercial department approved the addition of the “Agency for Property Rights Transaction Application Procedures”, the defendant’s unit and defendant had reasonable reliance on the legality of the business scope and subjectively had no criminal intent, so their actions did not constitute the crime of illegal business operations.

After the court hearing, the collegial panel made a judgment in court.

The Intermediate Court held that the defendants Gui Hanxin and Ai Shicai exceeded the business scope of the company approved by the industrial and commercial registration, and without the approval of the statutory authority, they transferred the equity of an unlisted joint-stock company to the public as an agent. After being administratively punished for operating outside the scope, , continued to operate beyond the scope on the pretext of adding "property rights transaction application procedures" business items, and did not stop the business activities even after the relevant administrative law enforcement departments pointed out that it had no right to operate. Its behavior constituted illegal operation of securities business without approval and disrupted The national securities market, and the criminal circumstances are particularly serious, have constituted the crime of illegal business operations.

The two defendants established a company for the illegal operation of securities business, and after the establishment of the company, the illegal operation of securities business was its main activity. Therefore, they cannot be punished as a unit crime and should be deemed as a natural person crime. The public prosecution agency's accusation that this case was a unit crime was inappropriate and should be corrected.

In accordance with the provisions of Article 225, Item (3), Article 25, Paragraph 1, and Article 64 of the Criminal Law of the People's Republic of China, the verdict is as follows:

1. The defendant Gui Hanxin committed the crime of illegal business operations and was sentenced to five years and six months in prison and fined RMB 3.2 million.

2. Defendant Ai Shicai committed the crime of illegal business operations and was sentenced to five years and six months in prison and fined RMB 3.2 million.

3. The illicit money obtained illegally by the second defendant shall continue to be recovered.

After the verdict of the first instance was announced, the two defendants appealed to the Provincial High Court on the grounds that the agent's transfer of equity of an unlisted joint-stock company was not engaged in securities business, did not exceed the scope of business operations, and had no criminal intent. The second instance of the case has not yet begun.

After the verdict of the first instance was announced, someone recommended a lawyer from Beijing to the defendant’s family. Later, the defendant’s family couldn’t make up their minds and approached Mr. Gui, who was the legal general manager of the company (Mr. Gui was related to the defendant Gui Hanxin), and asked him to He helped, and Mr. Gui didn't want to offend anyone, so he came up with the idea to ask several experts to discuss the qualitative issues of the case, and then determine the candidate for the lawyer, so this case seminar was held.

"Lawyer Liu, I have something unclear and I want to ask you." A local lawyer surnamed Wang opposite Fang Yi spoke first.

"You said it." Lawyer Liu was very polite.

"Didn't the two defendants initially intend to do serious investment business when they established Wanli Investment Co., Ltd.? Why did the court determine that the two defendants established the company for illegal securities business?" Lawyer Wang asked the questions in the minds of the other four experts.

"It's like this. There was an episode in it. When the second defendant set up the company, the party with funds promised to invest, but later the promise was not fulfilled. The second defendant felt that it was troublesome to have a company with no business and had to file taxes, so he applied to turn the company into a company. Logged out.

Since I just registered for less than a month and there is no business, it is very convenient to cancel.

However, after making a lot of money in the market, the second defendant found that he could make money by handling share transfers. At this time, he went to an intermediary agency to stop the cancellation, but the cancellation process was already completed.

They had no choice but to re-register Wanli Investment Co., Ltd. in order to engage in agency share transfer business. We only discovered this when we were marking the papers.

In my opinion, the focus of this case is mainly on:

1. Is the agency transfer of equity interests in unlisted companies considered securities business as stipulated in Article 225, Item (3) of the Criminal Law?

2. Do the actions of the two defendants constitute the crime of illegal business operations?

This time I invite all colleagues to participate in the seminar, and I also want to discuss these two points and listen to everyone's suggestions. "Lawyer Liu said and looked at Mr. Gui, who nodded to express his approval of what he said.

Fang Yi's face was expressionless, but his mind was full of excitement: There were flaws in the materials he provided before. Was this done intentionally by Lawyer Liu to confuse the public, or because the paralegal's assistant made a careless mistake! This kind of thing happened at the beginning, and this seminar was... a bit interesting.

After everyone listened to what Lawyer Liu said, they started to use their brains. In fact, everyone had already realized the key issues of this case summarized by Lawyer Liu.

“According to Article 225 (3) of the Criminal Law, anyone who violates national regulations and illegally operates securities business without the approval of relevant national competent authorities and disrupts market order, if the circumstances are serious, shall constitute the crime of illegal business operations.

Therefore, for the defendant in this case, the key to the characterization of his behavior is whether the act of transferring the equity of an unlisted company as an agent can be determined as ‘operating securities business’.

If it can be determined in this way, then there is a prerequisite for determining that the defendant committed the crime of illegal business in accordance with the above-mentioned provisions of the Criminal Law; otherwise, this provision cannot be used as the basis for judgment.

Securities business...Lawyer Zhao is the best at it. Lawyer Zhao, what do you think? "What the old professor said is very reasonable, but it is useless at all. It is a typical big principle without any practical effect. It is very suitable for holding conferences, but when it is said at this time, it gives people a feeling of fooling around.

But the cleverness of the old professor was that he brought out Lawyer Zhao very smoothly. The lawyer Zhao mentioned by the old professor was the male lawyer in his fifties who came from the capital.