Lawyer's character

After listening to the prosecutor's response, Du Yong suddenly realized that he had made a mistake. Financial markets are also markets, 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 opinions and response, the defender issued the following defense opinions:

Although the behavior of the defendant in this case falls under the circumstances stipulated in Article 225, Paragraph 4 of the Criminal Law, according to the above-mentioned legal provisions, only "disturbing market order and the circumstances are serious" can constitute the crime of illegal business. The defendant in this case The behavior did not reach the level of 'serious circumstances', so it did not constitute the crime of illegal business operations. The specific reasons are as follows:

In 2010, the Supreme People's Procuratorate and the Ministry of Public Security jointly issued the "Regulations on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (II)" (hereinafter referred to as "Standard 2"), which included Article 225 of the Criminal Law. The standard for prosecution of individual crimes in item 4 of Article stipulates that 'the amount of illegal business operations is more than 50,000 yuan, or the amount of illegal income is more than 10,000 yuan'.

The defendant's illegal business volume in this case was 130,000 yuan. If this standard is applied, it is obvious that the defendant's behavior should be determined to constitute the crime of illegal business. "

As soon as Du Yong finished speaking, Lai Zixing in the dock was startled. What does this mean? Why didn't the lawyer I hired speak for me? Instead of following the procuratorate's lead, he turned traitor? !

"However, we believe that the defendant's illegal conduct of pawn business cannot be simply applied to this standard. The reasons are as follows:

First, the provisions on the prosecution standard in Article 225, Paragraph 4 of the Criminal Law in "Standard 2" are derived from the "Provisions on the Prosecution Standards for Economic Crime Cases" jointly issued by the Supreme People's Procuratorate and the Ministry of Public Security in 2001. Standard 2 follows the foundation established by this standard.

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

As illegal business activities in the general production and circulation fields, if an individual's illegal business turnover reaches more than 50,000 yuan or the amount of illegal income exceeds 10,000 yuan, it can be deemed to have reached the level of "serious circumstances" and disrupted market order.

However, illegal financial activities are different from illegal business activities in the field of production and circulation. The former often involve huge amounts. If the case is determined to be serious according to the above standards, even if the above amount standards are reached, it may not cause serious disruption to the market order, so the above standards are applicable. To measure the seriousness of illegal financial activities, it is obviously too low and is inappropriate.

Second, "Standard 2" stipulates that the third item of Article 225 of the "Criminal Law", that is, the prosecution standard for illegally operating securities, futures, and insurance businesses is "the amount of illegal operations is more than 300,000 yuan." The standard for filing a lawsuit for engaging in fund payment and settlement business is 'the amount is more than 2 million yuan'.

It can be seen that "Standard 2" has stipulated special standards for the determination of serious circumstances for financial business, and this special standard clearly applies to a higher amount standard. The reason for this is to take into account the particularity of illegal financial business operations.

The defendant's illegal car loan business in this case is also an illegal financial business, and should also refer to the amount standard stipulated in Article 225 Paragraph 3 of "Standard 2" instead of simply applying the standard in Paragraph 4.

Third, in terms of the effectiveness of "Standard 2", according to the "Regulations on the Reference Application in Economic Crime Trials" issued by the Supreme People's Court in 2010 (the Supreme People's Procuratorate and the Ministry of Public Security's Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Agencies) (2)) The provisions of the Notice:

1. If the Supreme People's Court has no provisions on the standards for conviction and sentencing of relevant economic crimes, the people's courts may refer to and apply the provisions of "Standard 2" when hearing economic crime cases.

2. In the process of applying "Standard 2" with reference to the People's Courts at all levels, if they believe that the relevant provisions of "Standard 2" cannot meet the needs of case trial, they must combine the specific circumstances of the case and local reality, and handle the case in a prudent and steady manner in accordance with the law. Apply and grasp policies to strive for better social results.

In this case:

First, in terms of the amount of the crime, the defendant's illegal business volume was only 130,000 yuan, and the illegal income was less than 20,000 yuan, which is far from the standard of "illegal business volume of more than 300,000 yuan";

Second, judging from the scale of the business, the defendant only conducted car loan business with two parties, which did not actually involve an unspecified majority of the society and did not cause serious disruption to the local financial order;

Third, from the perspective of subjective intention, the defendant subjectively only hoped to obtain certain economic benefits through this business activity, and had no direct intention to hope or pursue disrupting the financial order;

Fourth, from the perspective of financial capabilities, the defendant's lack of operating funds makes it objectively unsustainable for its company's operations and cannot pose a substantial threat to financial security.

To sum up, the defendant’s illegal conduct of car mortgage loans has not reached the level of ‘serious circumstances’ and does not constitute the crime of illegal business operations. complete. "Du Yong responded.

(Note: On April 29, 2022, the Supreme People's Procuratorate and the Ministry of Public Security jointly issued the revised "Regulations on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (2)", which will come into effect on May 15, 2022. .

"Regulations 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 Agencies (II)" (Gongtongzi [2010] No. 23) and "The Supreme People's Procuratorate and the Ministry of Public Security on Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Agencies" The Supplementary Provisions of Standards (2) (Gongtongzi [2011] No. 47) shall be abolished at the same time. )

…

After the trial, out of caution, the collegial panel did not pronounce the verdict in court. Outside the court gate, Du Yong and Cheng both persuaded Wang Jie, the daughter-in-law of defendant Lai Zixing, to return 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 to withdraw the case. The court had just issued a ruling that the case was allowed to be withdrawn. He was asked to go to the court to receive the ruling, and notified his family that he would go to the detention center in the afternoon. Pick people up.

Du Yong then called Lai Zixing's daughter-in-law, Wang Jie, and told him about the procuratorate's withdrawal of the case, and asked him to pick up Lai Zixing at the door of the detention center at three o'clock in the afternoon. Wang Jie's cry came out on 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 defendant Lai Zixing for the crime of illegal business operations was in compliance with the law. In accordance with the provisions of Article 177 of the “Interpretation of the Supreme Court on Several Issues Concerning the Enforcement (Criminal Procedure Law)”, the court ruled to allow the procuratorate to withdraw the prosecution of the defendant. Lai Zixing was prosecuted for illegal business operations.