Lawyer's character

"Well, this is for listed companies, but what about unlisted companies? Is subdivision and transfer allowed?" Lawyer Zhao felt that Fang Yi was just following the script and may not really understand.

"The shares of unlisted companies are not allowed to be subdivided and transferred. Although there are no legal provisions, there are relevant regulations in the regulations of relevant departments. Moreover, the regulatory authorities have always not allowed the subdivision and transfer of shares of unlisted joint-stock companies. shares.

On March 25, 1998, the General Office of the State Council forwarded the China Securities Regulatory Commission's "Plan for Cleaning Up and Rectifying Illegal Over-the-Counter Stock Trading", requiring that subdivision trading and warrant trading conducted by equity exchanges established without the approval of the State Council be treated as Over-the-counter illegal stock trading activities will be thoroughly cleaned up.

Since then, the China Securities Regulatory Commission has made unwritten "three no's" regulations on local property rights trading markets: "no subdivision, no continuity, no standardization."

In December 2006, the General Office of the State Council issued the "Notice on Severely Cracking Down on Issues Related to Illegal Issuance of Stocks and Illegal Operation of Securities Business."

In January 2008, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the China Securities Regulatory Commission jointly issued the "Notice on Issues Concerning the Censorship of Illegal Securities Activities."

Both notices require the crackdown on various securities-related illegal and criminal activities, including illegal agency transfers of unlisted company stocks.

Therefore, subdividing and transferring shares of unlisted companies is an illegal method of property rights transactions.

Lawyer Zhao, you often do this kind of business. Do you know about other relevant regulations? Are there any latest regulations? I can also learn from it when doing business in the future. "Fang Yi asked very politely.

Lawyer Zhao did not expect Fang Yi to kick the ball back. In fact, these were the rules he knew, nothing new. He also followed his colleagues to do two similar cases and came here to show off. In fact, he had not studied this type of issue in depth, which was a bit of a stretch.

Seeing everyone looking at him, Lawyer Zhao laughed awkwardly and cleared his throat: "Lawyer Fang knows quite a lot.

Well, I don’t deny that the defendant’s behavior is in the nature of property rights transactions to a certain extent, but this nature does not affect the determination that his behavior is a disguised securities business. Therefore, my opinion is that the defendant in this case committed the crime of illegal business operation. "He immediately changed the topic and showed a confident look.

"Lawyer Fang, what do you think?" Mr. Gui said.

He was quite satisfied with Lawyer Fang's answer just now. To be honest, Mr. Gui didn't like Lawyer Zhao very much. The reason was that Lawyer Zhao was too arrogant.

Modesty brings benefits and losses, and it can be applied anywhere. If you are honest, you will not be deceived!

"Well, I agree with Lawyer Zhao." Although Fang Yi was a little annoyed with Lawyer Zhao, this guy's judgment was consistent with his, and Fang Yi didn't want this negative emotion to affect his professional judgment.

"Oh? What's the reason?" Mr. Gui asked.

Fang Yi looked at the reasons he had summarized before: "I believe that according to the provisions of Article 225 of the Criminal Law, only illegal business operations with serious circumstances can constitute the crime of illegal business operations.

As for the determination of "serious circumstances", in judicial practice, it should be mainly based on the amount of illegal business operations and illegal profits, and should comprehensively consider the circumstances of the case.

I believe that in this case, the defendant’s behavior not only met the conditions of ‘serious circumstances’, but also ‘particularly serious circumstances’ for the following reasons:

1. The company established by the defendant is an investment company and is not qualified to operate securities or property rights trading business.

According to the "Property Rights Transaction Rules", a property rights transaction brokerage agency refers to an intermediary agency that has the qualifications to practice property rights transactions and accepts the entrustment of enterprises to act as agent for property rights transactions, and the personnel engaged in the property rights transaction business must have corresponding brokerage qualifications.

In this case, the company operated by the defendant was neither licensed nor qualified as a property rights transaction brokerage institution, so it was obviously operating beyond its scope.

After the Municipal Administration for Industry and Commerce ordered the company to make corrections and fined it 10,000 yuan for operating outside its scope, the company did not rectify the relevant business.

On the contrary, the company has added the business project of "handling property rights transaction application procedures" and continues to sell stocks of unlisted companies as an agent.

However, 'handling property rights transaction application procedures' refers to accepting the entrustment of the property rights owner and submitting property rights transaction application services to the property rights trading agency in the name of the property rights owner, and does not include directly engaging in property rights transaction activities.

Therefore, after the company added the business item of "handling property rights transaction application procedures", it did not change the fact that it operated beyond its scope. The investment company run by the defendant continued to sell shares of unlisted companies to the public after being punished by the industrial and commercial department. It is obviously a malicious and out-of-scope operation.

2. The defendant’s business volume and profit amount are extremely huge.

The defendant promoted stocks of unlisted companies to the public, with a total sales amount of RMB 7,698,300, making a profit of more than RMB 3.1 million.

Although there is currently no judicial interpretation that stipulates the specific amount standards for "serious circumstances" and "particularly serious circumstances" for illegally operating securities businesses, courts generally refer to relevant judicial interpretations when making judgments.

For example, Articles 11 and 12 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Publications" stipulate that publishing, printing, copying, and distribution other than those specified in Articles 1 to 10 of this Interpretation will seriously endanger society. Illegal publications that disrupt order and disrupt market order, if the personal business amount is more than 150,000 to 300,000 yuan, or if the amount of illegal income is more than 50,000 to 100,000 yuan, it is classified as "particularly serious."

3. The defendant’s behavior disrupted the order of the national securities market, easily triggered mass incidents, and was extremely harmful to society.

In the past year or so, the company run by the defendant deceived more than 300 investors into purchasing shares of unlisted joint-stock companies on the pretext that the shares could be listed in a short time and obtain high returns on the original shares. In fact, the illegal establishment of an 'over-the-counter' market outside of supervision has seriously disrupted the order of the national securities market.

Moreover, once the defendant fails to fulfill its promise and investors are unable to make profits or even cause heavy losses, mass incidents are likely to occur and affect local social stability.

To sum up, the defendant in this case went beyond the business scope of the company approved by the industrial and commercial registration, and transferred the equity of the unlisted joint-stock company to the public without the approval of the statutory authority, which is an illegal securities business. The circumstances are particularly serious and constitute the crime of illegal business.

However, in view of the fact that the purpose of the defendant's establishment of the company was to engage in illegal securities business, and that the company's main activity was to commit the crime after its establishment, according to the provisions of Article 2 of the "Interpretation of the Supreme People's Court on Issues Concerning the Specific Application of Laws in the Trial of Unit Crime Cases" , should not be punished as a unit crime, so I think there is no problem with the first instance court's characterization of this case.

As for sentencing, if there are no statutory mitigating circumstances, I personally think that the second instance is likely to uphold the original verdict. "Fang Yi looked at Mr. Gui and said.