On the crime of illegal business operation
Publish: 2021-04-20 22:05:04
1. No tobacco monopoly license is not allowed to sell, so was fined. Pay enough fine to show that you have a good attitude to plead guilty, you will be sentenced to probation, otherwise you may be sentenced to a real sentence, the best way to pay it
2. Because they are Banxian, so a jump is far away. If it's a whole fairy, it's going to jump further. If you are an ordinary person, you can't jump far.
3. Must have the Cultural Bureau's license, can manage sells the network game currency, otherwise belongs to the illegal! It's just that the state hasn't specially investigated and dealt with it. I hope you can do what you can! Don't work too long, it's easy to go back!
4. If it's a joint crime, the detention house where the gang is locked up should be calculated on the basis of the total amount of the illegal operation of the gang. Such a large amount of money belongs to the extremely serious circumstances and can be sentenced to 15 years' imprisonment< Article 225 of the criminal law of the people's Republic of China (hereinafter referred to as Article 225 of the criminal law) violates the provisions of the state by engaging in one of the following illegal business activities, thus disrupting the market order. If the circumstances are serious, and the circumstances are especially serious, a fine of more than five years shall be imposed, and a fine of more than one time and less than five times the illegal income shall be imposed, or property shall be confiscated Special goods or other restricted goods< (2) buying and selling import and export licenses, import and export certificates of origin, and other business licenses or approval documents stipulated by laws and administrative regulations< (3) illegally operating securities, futures or insurance business without the approval of the relevant competent authorities of the state< (4) other illegal business activities that seriously disrupt the order of the city. Article 231 If a unit commits the crime mentioned in articles 221 to 230 of this section, it shall be fined, and the persons who are directly in charge and other persons who are directly responsible for the crime shall be punished in accordance with the provisions of each article of this section.
5. China's criminal law does not stipulate the crime of illegal business operation< The relevant provisions of the crime of illegal business operation are as follows:
Article 225 of the criminal law, in violation of the provisions of the state, whoever commits one of the following illegal business operations and disturbs the market order, if the circumstances are serious or the circumstances are especially serious, shall be sentenced to fixed-term imprisonment of not less than five years, and shall also be fined not less than one time but not more than five times of the illegal gains or be sentenced to confiscation of property:
(1) the law of illegal business operation, the law of illegal business operation, the law of illegal business operation, the law of illegal Articles for exclusive sale or special sale or other restricted items as prescribed by administrative regulations< (2) buying and selling import and export licenses, certificates of origin for import and export, and other business licenses or approval documents stipulated by laws and administrative regulations< (3) illegally operating securities, futures or insurance business without the approval of the relevant competent authorities of the state< (4) other illegal business operations that seriously disrupt the order of the city. Article 231 Where a unit commits the crime mentioned in articles 221 to 230 of this section, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be punished in accordance with the provisions of each article of this section< According to the provisions of the Supreme People's Procuratorate and the Ministry of public security on the standards for prosecution of economic crime cases, the cases of illegal business operation that meet one of the following conditions shall be prosecuted:
1. In violation of national regulations, international special line, private transfer equipment or other methods shall be employed, Those who engage in international telecommunication business without authorization or engage in profit-making activities involving telecommunication business of Hong Kong, Macao and Taiwan shall be prosecuted if they are suspected of any of the following circumstances: (1) the amount of outbound call business is more than 1 million yuan 2) The loss of telecommunication tariff caused by the operation of incoming call service is more than 1 million yuan 3) Those who fail to meet the above amount standard, but have received more than two administrative punishments for illegal operation of international telecommunication business or telecommunication business involving Hong Kong, Macao and Taiwan, and then engage in illegal operation< (1) buying and selling foreign exchange outside designated foreign exchange banks, China foreign exchange trading center and its sub centers, with an amount of more than 200000 US dollars, or with an illegal income of more than 50000 RMB yuan
(2) companies, enterprises or other units, in violation of relevant regulations on foreign trade agency business, use illegal means, or knowingly forge or alter vouchers or commercial documents to defraud others from purchasing foreign exchange from designated foreign exchange banks with the amount of more than US $5 million, or illegally obtain more than RMB 500000< (3) the amount of foreign exchange fraulently purchased by intermediaries is more than US $1 million or the amount of illegal income is more than RMB 100000< (3) those who publish, print, reproce or distribute illegal publications in violation of state regulations and are suspected of one of the following circumstances shall be prosecuted:
1. The amount of illegal business of an indivial is more than 50000 yuan, and that of a unit is more than 150000 yuan
2. If the amount of indivial illegal income is more than 20000 yuan, the amount of unit illegal income is more than 50000 yuan; An indivial illegally operates 5000 newspapers or 5000 periodicals or 2000 books or more than 500 audio-visual procts or electronic publications,
3. An entity illegally operates 15000 newspapers or 15000 periodicals or 5000 books or more than 1500 audio-visual procts or electronic publications
4. Those who illegally engage in securities, futures or insurance business without the approval of the relevant competent authorities of the state, and the amount of illegal business is more than 300000 yuan, or the amount of illegal income is more than 50000 yuan, shall be prosecuted
5. Indivials or units engaged in other illegal business activities should be prosecuted if they are suspected of one of the following circumstances: (1) the amount of illegal business of indivials is more than 50000 yuan, or the amount of illegal income is more than 10000 yuan 2) The amount of illegal business operation of a unit is more than 500000 yuan, or the amount of illegal income is more than 100000 yuan.
Article 225 of the criminal law, in violation of the provisions of the state, whoever commits one of the following illegal business operations and disturbs the market order, if the circumstances are serious or the circumstances are especially serious, shall be sentenced to fixed-term imprisonment of not less than five years, and shall also be fined not less than one time but not more than five times of the illegal gains or be sentenced to confiscation of property:
(1) the law of illegal business operation, the law of illegal business operation, the law of illegal business operation, the law of illegal Articles for exclusive sale or special sale or other restricted items as prescribed by administrative regulations< (2) buying and selling import and export licenses, certificates of origin for import and export, and other business licenses or approval documents stipulated by laws and administrative regulations< (3) illegally operating securities, futures or insurance business without the approval of the relevant competent authorities of the state< (4) other illegal business operations that seriously disrupt the order of the city. Article 231 Where a unit commits the crime mentioned in articles 221 to 230 of this section, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be punished in accordance with the provisions of each article of this section< According to the provisions of the Supreme People's Procuratorate and the Ministry of public security on the standards for prosecution of economic crime cases, the cases of illegal business operation that meet one of the following conditions shall be prosecuted:
1. In violation of national regulations, international special line, private transfer equipment or other methods shall be employed, Those who engage in international telecommunication business without authorization or engage in profit-making activities involving telecommunication business of Hong Kong, Macao and Taiwan shall be prosecuted if they are suspected of any of the following circumstances: (1) the amount of outbound call business is more than 1 million yuan 2) The loss of telecommunication tariff caused by the operation of incoming call service is more than 1 million yuan 3) Those who fail to meet the above amount standard, but have received more than two administrative punishments for illegal operation of international telecommunication business or telecommunication business involving Hong Kong, Macao and Taiwan, and then engage in illegal operation< (1) buying and selling foreign exchange outside designated foreign exchange banks, China foreign exchange trading center and its sub centers, with an amount of more than 200000 US dollars, or with an illegal income of more than 50000 RMB yuan
(2) companies, enterprises or other units, in violation of relevant regulations on foreign trade agency business, use illegal means, or knowingly forge or alter vouchers or commercial documents to defraud others from purchasing foreign exchange from designated foreign exchange banks with the amount of more than US $5 million, or illegally obtain more than RMB 500000< (3) the amount of foreign exchange fraulently purchased by intermediaries is more than US $1 million or the amount of illegal income is more than RMB 100000< (3) those who publish, print, reproce or distribute illegal publications in violation of state regulations and are suspected of one of the following circumstances shall be prosecuted:
1. The amount of illegal business of an indivial is more than 50000 yuan, and that of a unit is more than 150000 yuan
2. If the amount of indivial illegal income is more than 20000 yuan, the amount of unit illegal income is more than 50000 yuan; An indivial illegally operates 5000 newspapers or 5000 periodicals or 2000 books or more than 500 audio-visual procts or electronic publications,
3. An entity illegally operates 15000 newspapers or 15000 periodicals or 5000 books or more than 1500 audio-visual procts or electronic publications
4. Those who illegally engage in securities, futures or insurance business without the approval of the relevant competent authorities of the state, and the amount of illegal business is more than 300000 yuan, or the amount of illegal income is more than 50000 yuan, shall be prosecuted
5. Indivials or units engaged in other illegal business activities should be prosecuted if they are suspected of one of the following circumstances: (1) the amount of illegal business of indivials is more than 50000 yuan, or the amount of illegal income is more than 10000 yuan 2) The amount of illegal business operation of a unit is more than 500000 yuan, or the amount of illegal income is more than 100000 yuan.
6.
Illegal trading of foreign exchange can constitute the crime of illegal operation
other illegal operations that seriously disrupt the order of the market economy
(1) illegal trading of foreign exchange (2) illegal operation of publications (3) illegal operation of telecommunication business (4) adding clenbuterol hydrochloride and other prohibited articles in feed and animal drinking water (5) setting up internet service business premises (i.e. Internet cafes) or engaging in Internet service business activities without authorization (6) illegal operation of lottery ticketsaccording to the provisions of the Supreme People's Procuratorate and the Ministry of public security on the standards for prosecution of economic crime cases, the case of illegal business operation should be prosecuted if it meets one of the following circumstances:
Article 2. Illegal business operation of foreign exchange is suspected of one of the following circumstances, Should be prosecuted:
(1) buying and selling foreign exchange outside the designated foreign exchange banks and China foreign exchange trading center and its sub centers, the amount is more than 200000 US dollars, or the amount of illegal income is more than 50000 RMB yuan
(2) a company, enterprise or other unit, in violation of relevant regulations on foreign trade agency business, fraulently purchases foreign exchange from a designated foreign exchange bank by illegal means, or knowingly forges or alters vouchers or commercial documents, with the amount of more than US $5 million or more, or illegally obtains more than RMB 500000 (3) the amount of foreign exchange fraulently purchased by intermediaries is more than 1 million US dollars or the amount of illegal income is more than 100000 yuan If Article 225 of the criminal law, in violation of the provisions of the state, commits one of the following illegal business operations and disturbs the market order, if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention and shall also, or shall only, be fined not less than one time but not more than five times the illegal income; If the circumstances are especially serious, the offender shall be sentenced to fixed-term imprisonment of not less than five years and shall also be fined not less than one time but not more than five times the illegal gains or be sentenced to confiscation of property:(1) operating without permission the articles that are exclusively or monopolized by law or administrative regulations or other articles that are restricted from trading
(2) buying and selling import and export licenses, certificates of origin for import and export, and other business licenses or approval documents stipulated by laws and administrative regulations (3) other illegal business activities that seriously disrupt the market order7. The crime of illegal business operation refers to one of the following illegal business operations in violation of state regulations
(1) operating exclusive or exclusive goods or other restricted goods without permission< (2) to buy and sell import and export licenses, certificates of origin for import and export, and other business licenses or approval documents stipulated by laws and administrative regulations< (3) illegally operating securities, futures or insurance business without the approval of the relevant competent authorities of the state< (4) engaging in other illegal business activities, disrupting the market order, and the circumstances are serious< In the first level, if an act does not violate the national regulations, but only violates the local laws and regulations, department rules, etc., which are lower than the national regulations, it certainly does not constitute the crime of illegal business
at the second level, if an act violates the national regulations, but the national regulations do not make the act "constitute a crime... Investigate criminal responsibility", and the criminal judicial interpretation does not interpret the act as a way of behavior of illegal business operation, it should not constitute the crime of illegal business operation
at the third level, if an act violates the provisions of the state, and the state's provisions regard the act as "criminal responsibility... If it constitutes a crime", but the criminal judicial interpretation does not clearly interpret the act as the behavior mode of the crime of illegal business operation, it should not constitute the crime of illegal business operation, such as unlicensed business operation< In other words, illegal business operators are bound to violate relevant instrial and commercial laws and regulations, and there is no criminal illegality without administrative illegality
2. Subjectively, it is required that the actor must be intentional and for the purpose of making profits. For those who do not know that they are illegal but engage in illegal business and not for the purpose of making profits, they are not considered to constitute a crime, but can only be given administrative punishment
3. If the circumstances of the crime are serious, the crime will be constituted. Whether the circumstances are serious or not should be judged from the amount of illegal business and income, and whether the perpetrator has carried out the illegal business, caused heavy losses or other serious consequences to the state, and whether he still does not repent after administrative punishment
market economy is not only a free economy, but also an economy ruled by law, so we should pay attention to the following problems when judging the crime of illegal business operation:
1. The illegality of illegal business operation must be in violation of national laws, administrative regulations and other normative documents
the illegality of illegal operation refers to the violation of state regulations. This "state regulation" refers to the violation of the laws and decisions formulated by the National People's Congress and its Standing Committee, the administrative regulations formulated by the State Council, the prescribed administrative measures, and the decisions and orders issued. The violation of state regulations of the crime of illegal business operation refers to the provisions of the state on monopolizing or monopolizing goods or other laws and regulations restricting the sale of goods, the provisions of the state on import and export license, import and export certificate of origin and other laws and regulations on business license and approval, so it does not refer to the violation of general laws and regulations on business operation. Operating without a license or beyond the scope of business itself is not illegal. Only when operating without a license or beyond the scope of business needs administrative permission, it belongs to illegal business in the sense of criminal law. For example, there is no tobacco business in the business license, but if tobacco is sold beyond the scope, it is an illegal business because tobacco belongs to the exclusive goods. However, if the items beyond the scope of business do not need administrative permission or examination and approval, as well as monopoly or restricted trading, they are not illegal business activities
2. Other illegal business operations must be determined in strict accordance with the law
according to the basic principle of "no crime and no punishment without explicit provisions of the law" in the criminal law, the identification of other illegal business activities should be carried out in strict accordance with the explicit provisions of the law, and criminal responsibility should be investigated in accordance with the law. Moreover, the provisions of laws, administrative regulations or judicial interpretations on other illegal business operations should be limited by the principle of "prohibiting the application of the afterwards law", otherwise, the scope of the crime of illegal business operations will be arbitrarily expanded
3. The interpretation of the Supreme People's court and the Supreme People's Procuratorate on Several Issues concerning the application of law in handling criminal cases endangering food safety [2] on May 2, 2013 clearly stipulates two forms of crime< Article 11 stipulates that anyone who, in violation of state regulations, proces or sells non food raw materials prohibited by the state for the purpose of providing food to others for proction or sale, if the circumstances are serious, shall be convicted and punished for the crime of illegal business operation in accordance with the provisions of Article 225 of the criminal law
anyone who, in violation of state regulations, proces or sells pesticides, veterinary drugs, feeds, feed additives, or raw materials for feeds or feed additives prohibited by the state, if the circumstances are serious, shall be convicted and punished in accordance with the provisions of the preceding paragraph
those who commit the acts mentioned in the preceding two paragraphs and constitute the crime of procing and selling fake and inferior procts, the crime of procing and selling fake and inferior pesticides, veterinary drugs and other crimes shall be convicted and punished in accordance with the provisions with heavier punishment
Article 12 stipulates that those who, in violation of state regulations, set up private pig slaughterhouses (farms) to engage in pig slaughtering, sales and other business activities, if the circumstances are serious, shall be convicted and punished for the crime of illegal business operation in accordance with Article 225 of the criminal law< If a natural person commits an offence, he shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also, or shall only, be fined not less than one time but not more than five times the illegal gains; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than five years and shall also be fined not less than one time but not more than five times the illegal gains or be sentenced to confiscation of property
2. If a unit commits a crime, it shall be fined, and the person in charge and other persons directly responsible for the crime shall be investigated for criminal responsibility in accordance with the provisions of this article< According to the provisions of the Supreme People's Procuratorate and the Ministry of public security on the standards for prosecution of economic crime cases, the case of illegal business operation should be prosecuted if it meets one of the following circumstances:
1. In violation of state regulations, international special line, private transfer equipment or other methods should be employed, Those who engage in international telecommunication business without authorization or engage in profit-making activities involving telecommunication business of Hong Kong, Macao and Taiwan shall be prosecuted if they are suspected of any of the following circumstances: (1) the amount of outbound call business is more than 1 million yuan 2) The loss of telecommunication tariff caused by the operation of incoming call service is more than 1 million yuan 3) Those who fail to meet the above amount standard, but have received more than two administrative punishments for illegal operation of international telecommunication business or telecommunication business involving Hong Kong, Macao and Taiwan, and then engage in illegal operation< (1) buying and selling foreign exchange outside designated foreign exchange banks, China foreign exchange trading center and its sub centers, with an amount of more than 200000 US dollars, or with an illegal income of more than 50000 RMB yuan
(2) companies, enterprises or other units, in violation of relevant regulations on foreign trade agency business, use illegal means, or knowingly forge or alter vouchers or commercial documents to defraud others from purchasing foreign exchange from designated foreign exchange banks with the amount of more than US $5 million, or illegally obtain more than RMB 500000< (3) the amount of foreign exchange fraulently purchased by intermediaries is more than US $1 million or the amount of illegal income is more than RMB 100000< (3) those who publish, print, reproce or distribute illegal publications in violation of state regulations and are suspected of one of the following circumstances shall be prosecuted:
1. The amount of illegal business of an indivial is more than 50000 yuan, and that of a unit is more than 150000 yuan
2. If the amount of indivial illegal income is more than 20000 yuan, the amount of unit illegal income is more than 50000 yuan; An indivial illegally operates 5000 newspapers or 5000 periodicals or 2000 books or more than 500 audio-visual procts or electronic publications,
3. An entity illegally operates 15000 newspapers or 15000 periodicals or 5000 books or more than 1500 audio-visual procts or electronic publications
4. Those who illegally engage in securities, futures or insurance business without the approval of the relevant competent authorities of the state, and the amount of illegal business is more than 300000 yuan, or the amount of illegal income is more than 50000 yuan, shall be prosecuted
5. Indivials or units engaged in other illegal business activities should be prosecuted if they are suspected of one of the following circumstances: (1) the amount of illegal business of indivials is more than 50000 yuan, or the amount of illegal income is more than 10000 yuan 2) The amount of illegal business operation of a unit is more than 500000 yuan, or the amount of illegal income is more than 100000 yuan<
sentencing
illegal operation of salt
[reference point of legal benchmark punishment for fixed-term imprisonment of less than five years, criminal detention and single fine]
illegal operation of salt more than 20 tons but less than 30 tons is criminal detention or fine. Anyone who illegally deals in 30 tons of salt shall be sentenced to one year's imprisonment, and the sentence shall be increased by one year for every 6 tons added
those who have received more than two administrative punishments for illegal operation of table salt and illegally operated 10 tons of table salt shall be sentenced to six months' imprisonment, with an increase of six months for every two tons
[reference point for Statutory Benchmark punishment of fixed-term imprisonment of more than five years]
illegal operation of 50 tons of salt is fixed-term imprisonment of five years, with an increase of 10 tons, the sentence is increased by one year
those who have received more than two administrative punishments for illegal operation of table salt and illegally operated 25 tons of table salt are sentenced to five years' imprisonment, with an increase of one year for each additional 10 tons
[reference point of legal benchmark punishment for person responsible for unit crime]
[special provisions on promotion and sentencing]
habitual criminals who illegally operate by using the identity of entrusted salt sale and intend to be punished with fine according to the above reference point of legal benchmark punishment shall be upgraded to criminal detention; Those who intend to be sentenced to criminal detention shall be upgraded to fixed-term imprisonment; Those who intend to be sentenced to fixed-term imprisonment shall be given a heavy sentence of 10%
illegal trading in tobacco procts
[reference point for fixed-term imprisonment of less than five years and criminal detention]
without the permission of the Department of tobacco monopoly administration and without proction license, wholesale license or retail license, the proction or wholesale of tobacco procts under one of the following circumstances is considered to be serious, The legal benchmark penalty is fixed-term imprisonment of one year:
(1) the amount of an indivial's illegal business operation reaches 50000 yuan, or the amount of illegal income reaches 10000 yuan
(2) the amount of illegal business of the unit reaches 500000 yuan, or the amount of illegal income reaches 100000 yuan< (3) having received more than two administrative punishments for illegal trading in tobacco procts, and illegal trading, with an amount of 20000 yuan
[reference point for Statutory Benchmark punishment of fixed-term imprisonment of more than five years]
if the circumstances of illegal trading in tobacco procts are particularly serious, the Statutory Benchmark punishment is fixed-term imprisonment of five years<
illegal operation of telecommunication business
[reference point of legal benchmark punishment for fixed-term imprisonment of less than five years, criminal detention and single fine]
if the amount of illegal operation of telecommunication business is less than 1.5 million yuan, it is a fine punishment; If the amount is more than 1.5 million yuan but less than 2 million yuan, it shall be criminal detention; If the penalty is 2 million yuan, the penalty will be fixed-term imprisonment for six months, with an increase of 50000 yuan, the penalty will be increased by one month
[reference point of Statutory Benchmark punishment for fixed-term imprisonment of more than five years]
if the amount of illegal operation of telecommunication business is 5 million yuan, it will be fixed-term imprisonment of five years, and the sentence will be increased by one month for every 100000 yuan increase
[legal benchmark criminal reference for the person responsible for unit crime]
(1) operating exclusive or exclusive goods or other restricted goods without permission< (2) to buy and sell import and export licenses, certificates of origin for import and export, and other business licenses or approval documents stipulated by laws and administrative regulations< (3) illegally operating securities, futures or insurance business without the approval of the relevant competent authorities of the state< (4) engaging in other illegal business activities, disrupting the market order, and the circumstances are serious< In the first level, if an act does not violate the national regulations, but only violates the local laws and regulations, department rules, etc., which are lower than the national regulations, it certainly does not constitute the crime of illegal business
at the second level, if an act violates the national regulations, but the national regulations do not make the act "constitute a crime... Investigate criminal responsibility", and the criminal judicial interpretation does not interpret the act as a way of behavior of illegal business operation, it should not constitute the crime of illegal business operation
at the third level, if an act violates the provisions of the state, and the state's provisions regard the act as "criminal responsibility... If it constitutes a crime", but the criminal judicial interpretation does not clearly interpret the act as the behavior mode of the crime of illegal business operation, it should not constitute the crime of illegal business operation, such as unlicensed business operation< In other words, illegal business operators are bound to violate relevant instrial and commercial laws and regulations, and there is no criminal illegality without administrative illegality
2. Subjectively, it is required that the actor must be intentional and for the purpose of making profits. For those who do not know that they are illegal but engage in illegal business and not for the purpose of making profits, they are not considered to constitute a crime, but can only be given administrative punishment
3. If the circumstances of the crime are serious, the crime will be constituted. Whether the circumstances are serious or not should be judged from the amount of illegal business and income, and whether the perpetrator has carried out the illegal business, caused heavy losses or other serious consequences to the state, and whether he still does not repent after administrative punishment
market economy is not only a free economy, but also an economy ruled by law, so we should pay attention to the following problems when judging the crime of illegal business operation:
1. The illegality of illegal business operation must be in violation of national laws, administrative regulations and other normative documents
the illegality of illegal operation refers to the violation of state regulations. This "state regulation" refers to the violation of the laws and decisions formulated by the National People's Congress and its Standing Committee, the administrative regulations formulated by the State Council, the prescribed administrative measures, and the decisions and orders issued. The violation of state regulations of the crime of illegal business operation refers to the provisions of the state on monopolizing or monopolizing goods or other laws and regulations restricting the sale of goods, the provisions of the state on import and export license, import and export certificate of origin and other laws and regulations on business license and approval, so it does not refer to the violation of general laws and regulations on business operation. Operating without a license or beyond the scope of business itself is not illegal. Only when operating without a license or beyond the scope of business needs administrative permission, it belongs to illegal business in the sense of criminal law. For example, there is no tobacco business in the business license, but if tobacco is sold beyond the scope, it is an illegal business because tobacco belongs to the exclusive goods. However, if the items beyond the scope of business do not need administrative permission or examination and approval, as well as monopoly or restricted trading, they are not illegal business activities
2. Other illegal business operations must be determined in strict accordance with the law
according to the basic principle of "no crime and no punishment without explicit provisions of the law" in the criminal law, the identification of other illegal business activities should be carried out in strict accordance with the explicit provisions of the law, and criminal responsibility should be investigated in accordance with the law. Moreover, the provisions of laws, administrative regulations or judicial interpretations on other illegal business operations should be limited by the principle of "prohibiting the application of the afterwards law", otherwise, the scope of the crime of illegal business operations will be arbitrarily expanded
3. The interpretation of the Supreme People's court and the Supreme People's Procuratorate on Several Issues concerning the application of law in handling criminal cases endangering food safety [2] on May 2, 2013 clearly stipulates two forms of crime< Article 11 stipulates that anyone who, in violation of state regulations, proces or sells non food raw materials prohibited by the state for the purpose of providing food to others for proction or sale, if the circumstances are serious, shall be convicted and punished for the crime of illegal business operation in accordance with the provisions of Article 225 of the criminal law
anyone who, in violation of state regulations, proces or sells pesticides, veterinary drugs, feeds, feed additives, or raw materials for feeds or feed additives prohibited by the state, if the circumstances are serious, shall be convicted and punished in accordance with the provisions of the preceding paragraph
those who commit the acts mentioned in the preceding two paragraphs and constitute the crime of procing and selling fake and inferior procts, the crime of procing and selling fake and inferior pesticides, veterinary drugs and other crimes shall be convicted and punished in accordance with the provisions with heavier punishment
Article 12 stipulates that those who, in violation of state regulations, set up private pig slaughterhouses (farms) to engage in pig slaughtering, sales and other business activities, if the circumstances are serious, shall be convicted and punished for the crime of illegal business operation in accordance with Article 225 of the criminal law< If a natural person commits an offence, he shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also, or shall only, be fined not less than one time but not more than five times the illegal gains; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than five years and shall also be fined not less than one time but not more than five times the illegal gains or be sentenced to confiscation of property
2. If a unit commits a crime, it shall be fined, and the person in charge and other persons directly responsible for the crime shall be investigated for criminal responsibility in accordance with the provisions of this article< According to the provisions of the Supreme People's Procuratorate and the Ministry of public security on the standards for prosecution of economic crime cases, the case of illegal business operation should be prosecuted if it meets one of the following circumstances:
1. In violation of state regulations, international special line, private transfer equipment or other methods should be employed, Those who engage in international telecommunication business without authorization or engage in profit-making activities involving telecommunication business of Hong Kong, Macao and Taiwan shall be prosecuted if they are suspected of any of the following circumstances: (1) the amount of outbound call business is more than 1 million yuan 2) The loss of telecommunication tariff caused by the operation of incoming call service is more than 1 million yuan 3) Those who fail to meet the above amount standard, but have received more than two administrative punishments for illegal operation of international telecommunication business or telecommunication business involving Hong Kong, Macao and Taiwan, and then engage in illegal operation< (1) buying and selling foreign exchange outside designated foreign exchange banks, China foreign exchange trading center and its sub centers, with an amount of more than 200000 US dollars, or with an illegal income of more than 50000 RMB yuan
(2) companies, enterprises or other units, in violation of relevant regulations on foreign trade agency business, use illegal means, or knowingly forge or alter vouchers or commercial documents to defraud others from purchasing foreign exchange from designated foreign exchange banks with the amount of more than US $5 million, or illegally obtain more than RMB 500000< (3) the amount of foreign exchange fraulently purchased by intermediaries is more than US $1 million or the amount of illegal income is more than RMB 100000< (3) those who publish, print, reproce or distribute illegal publications in violation of state regulations and are suspected of one of the following circumstances shall be prosecuted:
1. The amount of illegal business of an indivial is more than 50000 yuan, and that of a unit is more than 150000 yuan
2. If the amount of indivial illegal income is more than 20000 yuan, the amount of unit illegal income is more than 50000 yuan; An indivial illegally operates 5000 newspapers or 5000 periodicals or 2000 books or more than 500 audio-visual procts or electronic publications,
3. An entity illegally operates 15000 newspapers or 15000 periodicals or 5000 books or more than 1500 audio-visual procts or electronic publications
4. Those who illegally engage in securities, futures or insurance business without the approval of the relevant competent authorities of the state, and the amount of illegal business is more than 300000 yuan, or the amount of illegal income is more than 50000 yuan, shall be prosecuted
5. Indivials or units engaged in other illegal business activities should be prosecuted if they are suspected of one of the following circumstances: (1) the amount of illegal business of indivials is more than 50000 yuan, or the amount of illegal income is more than 10000 yuan 2) The amount of illegal business operation of a unit is more than 500000 yuan, or the amount of illegal income is more than 100000 yuan<
sentencing
illegal operation of salt
[reference point of legal benchmark punishment for fixed-term imprisonment of less than five years, criminal detention and single fine]
illegal operation of salt more than 20 tons but less than 30 tons is criminal detention or fine. Anyone who illegally deals in 30 tons of salt shall be sentenced to one year's imprisonment, and the sentence shall be increased by one year for every 6 tons added
those who have received more than two administrative punishments for illegal operation of table salt and illegally operated 10 tons of table salt shall be sentenced to six months' imprisonment, with an increase of six months for every two tons
[reference point for Statutory Benchmark punishment of fixed-term imprisonment of more than five years]
illegal operation of 50 tons of salt is fixed-term imprisonment of five years, with an increase of 10 tons, the sentence is increased by one year
those who have received more than two administrative punishments for illegal operation of table salt and illegally operated 25 tons of table salt are sentenced to five years' imprisonment, with an increase of one year for each additional 10 tons
[reference point of legal benchmark punishment for person responsible for unit crime]
[special provisions on promotion and sentencing]
habitual criminals who illegally operate by using the identity of entrusted salt sale and intend to be punished with fine according to the above reference point of legal benchmark punishment shall be upgraded to criminal detention; Those who intend to be sentenced to criminal detention shall be upgraded to fixed-term imprisonment; Those who intend to be sentenced to fixed-term imprisonment shall be given a heavy sentence of 10%
illegal trading in tobacco procts
[reference point for fixed-term imprisonment of less than five years and criminal detention]
without the permission of the Department of tobacco monopoly administration and without proction license, wholesale license or retail license, the proction or wholesale of tobacco procts under one of the following circumstances is considered to be serious, The legal benchmark penalty is fixed-term imprisonment of one year:
(1) the amount of an indivial's illegal business operation reaches 50000 yuan, or the amount of illegal income reaches 10000 yuan
(2) the amount of illegal business of the unit reaches 500000 yuan, or the amount of illegal income reaches 100000 yuan< (3) having received more than two administrative punishments for illegal trading in tobacco procts, and illegal trading, with an amount of 20000 yuan
[reference point for Statutory Benchmark punishment of fixed-term imprisonment of more than five years]
if the circumstances of illegal trading in tobacco procts are particularly serious, the Statutory Benchmark punishment is fixed-term imprisonment of five years<
illegal operation of telecommunication business
[reference point of legal benchmark punishment for fixed-term imprisonment of less than five years, criminal detention and single fine]
if the amount of illegal operation of telecommunication business is less than 1.5 million yuan, it is a fine punishment; If the amount is more than 1.5 million yuan but less than 2 million yuan, it shall be criminal detention; If the penalty is 2 million yuan, the penalty will be fixed-term imprisonment for six months, with an increase of 50000 yuan, the penalty will be increased by one month
[reference point of Statutory Benchmark punishment for fixed-term imprisonment of more than five years]
if the amount of illegal operation of telecommunication business is 5 million yuan, it will be fixed-term imprisonment of five years, and the sentence will be increased by one month for every 100000 yuan increase
[legal benchmark criminal reference for the person responsible for unit crime]
8. According to relevant laws and regulations, if a person is convicted of a criminal offence of illegal business operation and the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention and shall also, or shall only, be fined not less than one time but not more than five times the illegal income; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than five years and shall also be fined not less than one time but not more than five times the illegal gains or be sentenced to confiscation of property< According to the relevant laws and regulations, Article 225 of the criminal law of the people's Republic of China shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also, or shall only, be fined not less than one time but not more than five times of the illegal income if he violates the state regulations and commits one of the following illegal business operations, thus disrupting the market order, if the circumstances are serious; If the circumstances are especially serious, the offender shall be sentenced to fixed-term imprisonment of not less than five years and shall also be fined not less than one time but not more than five times the illegal gains or be sentenced to confiscation of property:
(1) engaging in the business of monopoly or monopoly goods or other restricted goods as prescribed by laws and administrative regulations without permission< (2) buying and selling import and export licenses, certificates of origin for import and export, and other business licenses or approval documents stipulated by laws and administrative regulations< (3) engaging in securities, futures and insurance business illegally without the approval of the relevant state authorities, or engaging in fund payment and settlement business illegally< (4) other illegal business operations that seriously disrupt the market order.
(1) engaging in the business of monopoly or monopoly goods or other restricted goods as prescribed by laws and administrative regulations without permission< (2) buying and selling import and export licenses, certificates of origin for import and export, and other business licenses or approval documents stipulated by laws and administrative regulations< (3) engaging in securities, futures and insurance business illegally without the approval of the relevant state authorities, or engaging in fund payment and settlement business illegally< (4) other illegal business operations that seriously disrupt the market order.
9. Whoever commits the crime of illegal business operation shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention and shall also, or shall only, be fined not less than one time but not more than five times the illegal gains
if the circumstances are especially serious, the offender shall be sentenced to fixed-term imprisonment of not less than five years and shall also be fined not less than one time but not more than five times the illegal income or be sentenced to confiscation of property
If a unit commits the crime of illegal business operation, it shall be fined, and the person in charge and other persons directly responsible for it shall be punished in accordance with the above provisions< First, the concept of the crime of illegal business operation:
refers to the illegal business operation of franchised or monopolized goods or other restricted goods without permission, the trading of import and export licenses, import and export certificates of origin and other business licenses or approval documents stipulated by laws and administrative regulations, as well as other illegal business activities that disturb the market order, A serious act. The subjective aspect of this crime consists of intention, and has the purpose of seeking illegal profits, which are the two main contents of this crime in the subjective aspect. If the actor does not seek illegal profits for the purpose, but because he does not understand the laws and regulations, he should not be punished as this crime, but should be investigated for administrative responsibility by the competent department< Second, legislative background:
the crime of illegal business operation derived from the cancelled crime of speculation and profiteering is specified in Article 225 of the criminal law. However, the crime of illegal business operation still retains some characteristics of the "pocket crime". The fourth item of Article 225 of the criminal law "other illegal business activities that seriously disturb the market order" is obviously a flexible provision in the absence of legislative interpretation to restrict it, thus leaving the judicial organs more room for discretion
in the process of revising the criminal law, there has been a debate on whether it is necessary to leave such a small "pocket" in the "crime of illegal business operation" after abolishing the crime of speculation and profiteering ". One view is that the principle of legality should be established in the new criminal law, and the clarity of the criminal law norms is the inherent requirement of legality. Therefore, it is not suitable to stipulate the content of uncertain counts such as "others" in the specific provisions of the new criminal law, which is also in line with the original intention of the division of "pocket crime" to make it specific. Another view is that, e to the abolition of the analogy system and the decomposition of "pocket crime", if the provisions on certain crimes are too definite, specific and inflexible, it is difficult to list all kinds of criminal acts, especially in the period of rapid economic change in the form of economic crimes, if some provisions are not "pocket" at all, It may not be concive to cracking down on various economic crimes in time, and it is also not concive to the relative stability of the criminal code. Therefore, it is necessary to set up some "others" and other omissions and omissions provisions. The provisions of the new criminal law on the crime of illegal business operation take the latter opinion into consideration and set up the fourth content. This also reflects the profound influence of the graal reform of China's criminal law and the traditional legislative guiding ideology of combining principle and flexibility on the revision of the criminal law
in the two years since the implementation of the new criminal law, from the perspective of judicial practice, the genetic gene of the crime of illegal business operation has graally emerged. The fourth item of Article 225 of the criminal law is being quoted more and more as the legal basis for the conviction of illegal business activities which are harmful to the society and have no specific provisions in the criminal law. As the meaning of "operation" is quite broad, almost all economic activities, such as proction, circulation, exchange and sales, may belong to operation activities. Therefore, the scope of application of the crime of illegal operation is expanding in practice
however, China's criminal law has entered the era of legality after all. Flexibility must be based on principle, and any criminal legislation and justice that contradicts the basic principle of legality should be avoided as far as possible. Therefore, how to understand and grasp the essential characteristics of the crime of illegal business operation, how to correctly interpret and apply the fourth provision of the crime, how to prevent the crime of illegal business operation from arbitrarily expanding into a new "pocket crime", and how to shake the foundation of the principle of a legally prescribed punishment for a crime, is a topic that legislators, judiciaries and scholars should pay close attention to.
if the circumstances are especially serious, the offender shall be sentenced to fixed-term imprisonment of not less than five years and shall also be fined not less than one time but not more than five times the illegal income or be sentenced to confiscation of property
If a unit commits the crime of illegal business operation, it shall be fined, and the person in charge and other persons directly responsible for it shall be punished in accordance with the above provisions< First, the concept of the crime of illegal business operation:
refers to the illegal business operation of franchised or monopolized goods or other restricted goods without permission, the trading of import and export licenses, import and export certificates of origin and other business licenses or approval documents stipulated by laws and administrative regulations, as well as other illegal business activities that disturb the market order, A serious act. The subjective aspect of this crime consists of intention, and has the purpose of seeking illegal profits, which are the two main contents of this crime in the subjective aspect. If the actor does not seek illegal profits for the purpose, but because he does not understand the laws and regulations, he should not be punished as this crime, but should be investigated for administrative responsibility by the competent department< Second, legislative background:
the crime of illegal business operation derived from the cancelled crime of speculation and profiteering is specified in Article 225 of the criminal law. However, the crime of illegal business operation still retains some characteristics of the "pocket crime". The fourth item of Article 225 of the criminal law "other illegal business activities that seriously disturb the market order" is obviously a flexible provision in the absence of legislative interpretation to restrict it, thus leaving the judicial organs more room for discretion
in the process of revising the criminal law, there has been a debate on whether it is necessary to leave such a small "pocket" in the "crime of illegal business operation" after abolishing the crime of speculation and profiteering ". One view is that the principle of legality should be established in the new criminal law, and the clarity of the criminal law norms is the inherent requirement of legality. Therefore, it is not suitable to stipulate the content of uncertain counts such as "others" in the specific provisions of the new criminal law, which is also in line with the original intention of the division of "pocket crime" to make it specific. Another view is that, e to the abolition of the analogy system and the decomposition of "pocket crime", if the provisions on certain crimes are too definite, specific and inflexible, it is difficult to list all kinds of criminal acts, especially in the period of rapid economic change in the form of economic crimes, if some provisions are not "pocket" at all, It may not be concive to cracking down on various economic crimes in time, and it is also not concive to the relative stability of the criminal code. Therefore, it is necessary to set up some "others" and other omissions and omissions provisions. The provisions of the new criminal law on the crime of illegal business operation take the latter opinion into consideration and set up the fourth content. This also reflects the profound influence of the graal reform of China's criminal law and the traditional legislative guiding ideology of combining principle and flexibility on the revision of the criminal law
in the two years since the implementation of the new criminal law, from the perspective of judicial practice, the genetic gene of the crime of illegal business operation has graally emerged. The fourth item of Article 225 of the criminal law is being quoted more and more as the legal basis for the conviction of illegal business activities which are harmful to the society and have no specific provisions in the criminal law. As the meaning of "operation" is quite broad, almost all economic activities, such as proction, circulation, exchange and sales, may belong to operation activities. Therefore, the scope of application of the crime of illegal operation is expanding in practice
however, China's criminal law has entered the era of legality after all. Flexibility must be based on principle, and any criminal legislation and justice that contradicts the basic principle of legality should be avoided as far as possible. Therefore, how to understand and grasp the essential characteristics of the crime of illegal business operation, how to correctly interpret and apply the fourth provision of the crime, how to prevent the crime of illegal business operation from arbitrarily expanding into a new "pocket crime", and how to shake the foundation of the principle of a legally prescribed punishment for a crime, is a topic that legislators, judiciaries and scholars should pay close attention to.
10. The crime of illegal business operation refers to the serious act of violating state regulations, engaging in illegal business activities and disturbing market order. The crime of illegal business operation is a new charge formed on the basis of breaking down the crime of speculation and profiteering in 1997 criminal law. We should break down the crime of speculation and increase the crime of illegal business operation. The single criminal law and the criminal law amendment have further defined the illegal business operation. The judicial interpretation constantly enriches the content of "other" behavior of the crime of illegal business operation, forming a complicated situation of the constitution of the crime of illegal business operation, which leads to many difficulties in the determination of the crime of illegal business operation. This article is based on this, according to the relevant legislative provisions and judicial interpretation of the crime of illegal business operation for further elaboration, in order to clarify the composition of the crime of illegal business operation, and accurately identify the crime of illegal business operation in judicial practice< The "elements of interdiction" of the crime of illegal business operation is a classification form of elements from the perspective of legislative technology in the civil law system. It refers to the elements formulated by criminal legislation with the function of blocking the criminal's escape from the legal net, including "or other type", "holding type" and "minimum requirement type". As a legislative method of strict specific provisions of law, it is of positive significance to improve the criminal legislation of our country. The crime of illegal business operation adopts the method of enumerating and generalizing simultaneously in order to express the connotation of objective elements. There are two sentencing ranges of basic constitution and aggravating constitution. In other words, in terms of the objective elements of the crime of illegal business operation, the legislative method of blocking the constituent elements is successfully used, which is manifested as "or other type". In 1997, the criminal code first listed two kinds of clear ways of illegal business operation, and then summarized the unfinished ways of illegal business operation with "other illegal business operations seriously disturbing the market order". In 1999, the amendment to the criminal law further added "those who illegally engage in securities, futures and insurance business with serious circumstances" as the third mode of conct< Article 225 (1) and Article 225 (2) of the criminal code of 1997 prescribe two ways of illegal business operation: the operation of franchised or monopolized goods or other restricted goods without permission; To buy and sell import and export licenses, certificates of origin for import and export, and other business licenses or approval documents stipulated by laws and administrative regulations. However, in the judicial practice, the illegal operation mode is different, which is difficult to be summarized by enumeration. Therefore, item 4 of Article 225 of the criminal law sets up the "elements of interception", that is, other illegal business activities that seriously disturb the market order. This general provision is designed to make up for the above two enumeration of illegal business operations. The reason why the criminal law makes this general provision is to focus on cracking down on the first two types of illegal business operations, and at the same time not to make other illegal business operators who seriously disturb the market order escape the legal net.
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