Lawyer's character

At the workstation, Cheng Du frowned, his eyes switching back and forth between the case files of Lai Zixing's illegal business case and the computer screen. His right hand kept spinning the pencil. This was a habit he developed when he was in school, because he He felt that only in this way could he concentrate and think about the problem.

After Yu Wendong finished typing up the defense opinions for a case on the computer, he stood up and stretched. He was surprised when he saw that Cheng Du next to him had entered a state of selflessness and no other. He didn't expect this guy to start a case. Being so serious here is different from usual. I guess if I didn't call him for dinner, he could study the case for a whole day.

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

"Master, do you think Lai Zixing may be guilty of setting up a financial institution without authorization?" Cheng Du stood up and asked suddenly.

"Oh? Let's go, get the case file, let's go to Boss Fang's office." Du Yong saw that more than half of the team members were in the office today, and it would be easy to disturb others when discussing the case at their workstations. Fang Yi happened to go to the court just now and 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 for meetings. If there is a meeting, we will not go. Everyone has developed a habit.

At first, Cheng Du was a little uneasy, feeling that it would not be good to enter someone's office without Boss Fang, but later seeing that everyone was like this, he just followed the Romans.

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

"Master, let me tell you my understanding. Do you think what I said makes sense?

According to the provisions of Article 174 of the Criminal Law, any person who establishes a commercial bank, stock exchange, futures exchange, securities company, futures brokerage company, insurance company or other financial institution without approval from the relevant state authorities shall be This constitutes the crime of establishing a financial institution without authorization.

I checked online and found that the so-called "unauthorized establishment of financial institutions" generally manifests itself in two situations:

First, the perpetrator failed to apply for establishment in accordance with the law to the People's Bank of China and other relevant national authorities that have the power to approve. Such situations are more common among units and individuals that do not have the conditions to establish financial institutions.

Second, although the perpetrator submitted the application materials, the relevant competent authorities did not approve the application and deemed it did not meet the conditions after review, and no financial business license was issued.

In this case, the ‘Dafa Company’ established by the defendant not only failed to obtain approval from any financial authorities, but also did not meet the conditions for registration with the industrial and commercial administration authorities. It was obviously illegally established.

Financial institutions as stipulated in Article 174 of the "Criminal Law" refer to financial businesses that are engaged or mainly engaged in taking deposits, granting loans, handling settlements, bill discounting, fund lending, trust investments, financial leasing, financing guarantees, foreign exchange trading, etc. Activities organization.

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', Dafa Company's business methods are in line with the characteristics of pawn shops in the "Pawn Management Measures", that is, 'pawn households pledge their movables and property rights as collateral or use their real estate as The act of pledging the property to a pawnbroker, paying a certain percentage of fees, obtaining the deposit, paying interest on the deposit, repaying the deposit, and redeeming the property within an agreed period of time.

From the nature of pawn behavior, pawn shops should belong to financial institutions. Therefore, the defendant illegally established the ‘Dafa Company’ to actually engage in pawn activities, which formally complies with the constitutive features of the crime of unauthorized establishment of a financial institution.

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

"Well, being able to think about the case independently and proactively is worthy of praise. I also considered it at first, but then I rejected the idea." Du Yong said with a smile while leaning on his chair.

The biggest fear when leading a disciple is that others will follow what others say. The disciple will just say whatever the master says, and the disciple himself cannot think independently. The master's words may not be 100% correct, so if the disciple wants to be better than his master, he must have his own independent ideas, take the initiative to analyze the case, and learn the master's way of analyzing the case, but he cannot be limited to this.

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

"Master, why did you reject this idea? Is there any problem with this idea?" Cheng Du asked incomprehensively. In his opinion, his idea was reasonable and there was no problem.

"Although what you say makes sense, the legislative intent of the Criminal Law to stipulate the crime of establishing financial institutions without authorization is not that simple.

This crime does not require the specific development of financial business, and only the simple establishment behavior is punished. However, the reason why the "Criminal Law" directly recognizes such simple establishment behavior as a crime is that this type of behavior has potential serious dangers to financial security.

From this point of analysis, if the act of establishment constitutes the crime of unauthorized establishment of a financial institution, it must essentially cause potential serious dangers to financial security. If the act is unlikely to cause serious danger to financial security, it cannot constitute this crime.

According to the literal provisions of Article 174 of the Criminal Law, it seems that as long as the perpetrator carries out the act of illegally establishing a financial institution, it can constitute the crime of unauthorized establishment of a financial institution. However, in a specific case, in order to determine that the behavior that meets the characteristics of the crime constitutes the crime, it must also be determined based on the circumstances whether the behavior may cause serious danger to financial security.

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 actor has some necessary formal characteristics of a legal financial institution, such as institution name, organizational department, company articles of association, business location, etc.

Because in practice, the so-called financial institutions established by actors are illegal only because they lack the approval requirements of the relevant national competent authorities, and other requirements are often basically met. Only in this way can the general public have trust, otherwise it will not be possible. There will be people with whom you will have financial business dealings.

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, professional personnel, etc.

If we do not have the actual ability to carry out corresponding financial business, it will be impossible to carry out relevant financial business to the society, let alone the risk of seriously endangering financial order and financial security.

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

'Dafa Company' is neither named as a pawnbroker or other financial institution, nor does it have company articles of association and corresponding institutional regulations; according to the evidence on record, the "company" does not have sufficient operating funds (the loaned funds are all from business transactions) Temporary loan), the business carried out is extremely irregular (the car loan agreements are all handwritten), and there are not enough professional practitioners (there is only one defendant, and the defendant does not have professional financial knowledge background).

To sum up, 'Dafa Company' does not meet the formal and substantive requirements of a financial institution as 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, so it cannot be shall be punished for the crime of establishing a financial institution without authorization. "Du Yong explained.

Three chapters today!