Several problems identified crime of illegal business
【Summary】 intercept Elements of criminal legislation is enacted to intercept the perpetrators have to plug leakages Elements of French functionality. Illegal Operation's "Elements of interception" performance
of "or any other type." One-line amendment to the Penal Code and the Penal Code the crime of illegal business to make changes to further clarify the judicial interpretation constitutes a crime. Limited to "other serious illegal behavior disturbed the market order" set up the scope of crime, while judicial interpretation is necessary to clear the illegal publication and the single criminal act of illegal trade in foreign exchange behavior and disrupt telecommunications market rank ... ...
Illegal crime refers to violations of state regulations, engaging in illegal business activities, disrupted the market order, serious behavior. The crime of illegal business in 1997, the crime of criminal law in the decomposition of speculation formed on the basis of new charges. Scholars have suggested that the Criminal Code adopted in 1997, (Note: See Zhao Bingzhi editor: "Research on the Criminal Code amendments," the Chinese People's Public Security University Press, 1990,263,264 pages; Dao Luan,
etc. Editor: "The modification and application of criminal law", People's Publishing Association, 1997,485 pages.) decomposition of speculation crimes, an additional crime of illegal business. One-line amendment to
criminal law and criminal law have right to do illegal business appears
set to further judicial interpretation of the crime of illegally enrich "other" behavior of the content that constituted the crime of illegal business complicated situation, leading to many difficulties identified by the crime of illegal business. This article is based on this, according to the relevant legislative provisions and judicial interpretation of the crime of illegal business further elaborated with a view to clarifying the composition of the crime of illegal business, and in judicial practice, to
determine precisely the crime of illegal business.
First, the crime of illegal business, "Elements of intercept"
Elements of interception, is a technical point of civil law the elements of the legislative classification form, which refers to the
development of criminal legislation that has to plug leakages offenders breaking the law to intercept the composition of functional elements in the form of expression, "or any other type", "hold-type", "minimum
requirements type. (Note: see Chu-Huai-sik with:" Criminal integration and
the relationship between criminal law theory ", Beijing University Press, 1996,358,359 page.) Model Law as a tight sub-provisions of the legislative
approach, the interception is constituted Elements on improving our
criminal legislation more empirical sense. to take the crime of illegal business lists should be open simultaneously with the general type of approach to the performance of the objective elements of content, there is a basic component constitutes two sentences with increasing amplitude. In other words, the objective elements of the crime of illegal business successfully applied the intercept Elements of the legislation, expressed as "or other types." Penal Code adopted in 1997 is the first listed
illegal acts of two kinds of specific ways, the times to "other serious illegal behavior disturbed the market order "unfinished lists general illegal behavior. 1999 amendment to the Criminal Code to further increase the" illegal securities, futures, insurance the circumstances are serious, "as the third behavior.
1997 of the Penal Code Article 225 of the first two kinds of 1,2 provides that illegal acts of ways: operating without a license laws and administrative regulations, monopoly restrictions on the sale of goods or other items; the sale of import and export licenses, import and export certificate of origin, as well as other laws and administrative regulations of the operation license or approval documents. However, judicial practice, illegal means like different conditions, it is difficult to be a clear list-style summary. Thus, the Penal Code article
225, paragraph 4 to set the "interception of constituent elements," that is disrupting the market order of other serious illegal behavior. The
general requirement is to compensate for the above-mentioned two pairs of
illegal acts enumerated set. The reason for the general criminal law provisions in order to focus on the fight against illegal acts of the former two categories at the same time so as not to disturb the market order of other serious illegal acts of persons to justice. (Note: See Huang Jing-ping editor: "the crime of disturbing the market order," the Chinese People's Public Security University Press, 1999,172 ~ 173.) In
order to meet the economic life of the development and changes to the legislative technique to the provisions enumerated in combination with the general approach, easy to effectively crack down on illegal crime.
Elements of interceptor to intercept the perpetrators have to plug
leakages breaking the law functions, but the administration of justice in the use of existing risk of abuse. (Note: see Chu-Huai-sik with: "Criminal
integration and the relationship between criminal law theory", Beijing University Press, 1996,358,359 page. Professor Chu, Elements of the use of intercept must follow two rules: First, less than a last resort when you do not; second law of itself should be able to express or implied "other" the connotation and extension.) Thus, it is necessary to "disturb the
market order of other serious illegal acts" to do a limit. In theory, constitute the crime of illegal business conduct illegal business need to
have two basic characteristics: First, an administrative law nature, that is in violation of national laws and administrative regulations of the prohibitive or restrictive regulations, administrative law is a necessary prerequisite for a crime. Secondly, seriously disrupted the market order (including the order of market access, market competition order and the
order of market transactions) and to achieve the degree of social harm of crime. Serious or not, need to circumstances and consequences of hazards to be qualified. A specific extension, different scholars on the crime of illegal business objects made of different limits. (Note: see Liu Chen Editor: "The new Criminal Code offenses pass new problems and interpretation", People's Publishing House, 1997,621,622 pages; Zhou Luan, single-length cases, ZHANG Si-Han editor: "The modification and
application of criminal law", People's Publishing Association, 1997,489 pages; but Wei: "On the crime of illegal business", in "Law and Business Research," 1999 (2).) We believe that there is no need to list may also be an artificial means exhaustive "other seriously disturbed the market order of the illegal business behavior "of the act. Abolition of speculation as a crime of illegal operation of the new post-crime covers a wide range of
high frequency cited, in particular article 225, paragraph 4. As with the
Penal Code does not expressly provided for greater social harm of illegal acts of the legal basis for conviction, it is not considered to be the pockets of crime, but the pockets of judicial practice, play a role. Therefore, how to understand and apply to "other serious illegal behavior disturbed the market order" requirement to prevent the illegal operation of an arbitrary expansion of a new "pockets of crime" and thus undermine the foundations of legality. This is the legislators, the judiciary and
scholars should be a common concern. (Note: See Chen Zexian: "Some Problems of illegal operation", contained "new research and application of the Criminal Code (Criminal Law Research Association 1999 Annual Meeting Proceedings)", the Chinese Procuratorate Press, 2000,519 ~ 522.) We view,
finds that the crime of illegal behavior should be based on laws and regulations in the Chancery Division, to grasp the offense of the crime of illegal business elements of the quality and composition of the real
economic life, the conduct of a specific identification.
Second, identification of illegal publishing behavior
Illegal publishing behavior is published in violation of state regulations to engage in publishing, distribution, reproduction distribution industries such as publishing activities, including publications, programs and publications illegal content is illegal. Generally speaking, the publication of the contents of illegal behavior that publications published in non-compliance with normal procedures, that
the publication process in illicit activities.
(A) the crime of illegal business practices found illegal publishing
With regard to whether the act constitutes a crime of illegal business of illegal publishing of the identified issues, Supreme People's
Court "on the trial of criminal cases of illegal publications, a number of issues specific application of the interpretation of the law" to define the two examples of illegal publishing of the "other serious illegal behavior disturbed the market order ": First, publishing, distribution, copying issue with the reactionary nature of the political dynamic nature of the political content of publications, pirated pornographic materials and other serious harm other than the social order and disrupting the
market order of the acts of illegal publications; two are illegal engaged in publishing matter of publishing, printing, copying, distribution operations, seriously disrupting the market order, the circumstances are especially serious conduct. The former for the publication of the contents of illegal publications, which is illegal publications for the publishing process. Before the enactment of judicial interpretation, some scholars have considered all the circumstances of pirated away from the illegal
publication of serious acts of illegal programs, are advised to crimes punishable by illegal. (Note: See Houfeng Mei, Zhang Jinlong: "Crime and Punishment of illegal publishing behavior", in the "new criminal laws and difficult of research and application (Criminal Law Research Association 1998 Annual Meeting Proceedings)", the Chinese Procuratorate Press, 1999,518 page.) This view is more relevant. However, the strict interpretation of the provisions of illegal publications, the need for the
publication process to constitute a particularly serious crime. Therefore, the case that the publication process for the second offense constitutes a crime of illegal business publication of the existence of heavier composition, worth considering. We tend to act only in the basic
composition. The pursuit of economic benefits for the publication of a simple pass with the others to seek prior sale, lease or illicit transfer of the publication of the name, ISBN, Issues, version number, to explain the provisions of such acts constitute the crime of complicity in illegal business.
Judicial interpretation of the illegal publishing the contents of illegal acts constitute the crime of illegal publications, has made clear that: (1) unit of crime and the conditions of natural persons convicted of
crime are different standards. Large-scale illegal publishing unit of
behavior, cause serious harm to explain the provisions of a more natural unit of illegal acts constitute the crime of illegal publishing the higher
the amount of the standard. (2) the amount of conviction the conditions of equal importance with the plot. Are guilty of the crime of illegal business circumstances, to the amount of timing factors, an important criterion but not the only standard, the amount, quantity close to the
starting point but there are certain circumstances constitute a crime of illegal business. (3) the amount of conviction to adapt to the situation of crime-type diversification. Taking into account in practice there may not be able to profit illegally or even losses, bankruptcy, the amount of standards and operation of mining the amount of illegal income the amount of choice one way. As long as the amount of two kinds, one of the conditions to achieve a conviction constitutes a crime. (4) measurement
methods diversified and rich operational. In view of some cases management can not measure the amount or the amount of illegal gains to explain the provisions of other measurement methods (for example, according to copies of newspapers, periodicals according to the present, book by book, audio
and video publications, according to Zhang). (5) The conviction of principle and flexibility of the conditions. A certain amount of explanation provided for the range, also requires the provinces,
autonomous regions and municipalities Higher People's Court according to local conditions and social security conditions in the statutory amount, within the range of quantitative criteria to determine the local implementation of specific standards, shall be reported to the Supreme
People's for the record. These amounts and number of the provisions of the publication of the content found illegal publications constitute the crime of illegal operation of an accurate standard. (Note: It should be noted that these quantitative factors far as publishing the contents of illegal publications, publication of illegal publications, procedures do not apply the above provisions. Sun defense: "" on the trial of criminal cases of illegal publications, the specific application of the law interpretation
of a number of issues "allay", in "Criminal Justice Reference" 1999 (a).) procedures for the publication of illegal publications, judicial interpretation does not provide for "particularly serious" standard, practice should be based on the specific circumstances of the case finds that strict grasp.
(B) the judicial interpretation of existing problems and solutions
From the Supreme People's Court promulgated the judicial interpretation of view, there are two main problems: First, the
publication process standards for the criminalization of illegal publications. Judicial interpretation did not "particularly serious" make provision for standards of judicial practice, how to grasp. I think they should be combined in accordance with the amount and circumstances in order to grasp the amount of standard-based conviction as "particularly
serious", can refer to publication, distribution, reproducing and distributing a reactionary political content publications, infringing,
obscene articles, etc. beyond the grave endangering the social order and disrupting the market order of the illegal publications constituted the crime of aggravated illegal composition of the standard strict grasp. Second, publication, distribution, reproducing and distributing a
reactionary political content publications, infringing, obscene articles, etc. The problem of crime act. In strict accordance with the provisions of judicial interpretation, publication, distribution, reproducing and distributing a reactionary political content publications, pirated pornographic and other illegal acts can not constitute a crime. The question is: implementation of the publication, distribution, copying issued a reactionary political content publications, infringing, obscene
articles, etc. constitutes a relevant crime, it may also disturb the market order and the circumstances are serious and constitute the crime of illegal business. This situation when the Imaginative Joinder of Offenses. Traditional homes judicial interpretation of the Jane, avoided should the number of patterns in crime research problems, (Note: See Houfeng Mei, Zhang Jinlong: "Crime and Punishment of illegal publishing behavior", in "New Study on the Problems with the implementation of the Criminal Code
applicable (Criminal Code Research Association 1998 Annual Meeting Proceedings) ", Chinese Procuratorate Press, 1999,516 ~ 519.) will be
simplistic. Moreover, this may lead to legal loopholes, that is, the implementation of publication, distribution, copying issued a reactionary
political content publications, infringing, obscene materials such acts do not constitute a corresponding crime, it may also disturb the market order and the circumstances are serious and constitute an illegal business case can not be processed. For this situation, under the existing judicial interpretation can not be resolved, can only be interpreted strictly in accordance with regulations. Reposted elsewhere in the paper for free download http://
Third, identification of illegal trade in foreign exchange behavior
Illegal trade in foreign exchange management act is the violation of foreign exchange regulations, foreign exchange trading behavior. A general sense, we are talking about acts of illegal trade in foreign exchange
means the place stipulated by the state foreign exchange transactions carried out outside the behavior of foreign exchange trading foreign exchange.
(A) The crime of the illegal trade in illegal foreign exchange behavior
According to "Commercial Bank Law" Article 3, Article 11 stipulates that commercial banks business scope includes trading, agency trading of foreign exchange; without the PBOC for approval, no unit or individual shall not engage in deposits from the public and other commercial banking
business. "Defrauded people out on the punishment of foreign exchange, foreign exchange evasion and illegal trade of crime decision" Article 4: In the national regulations of the market place outside the illegal trade in foreign exchange, disturb the market order, the circumstances are serious, according to the provisions of Article 225 of the Penal Code offense . For the unit of illegal trade in foreign exchange to implement the above acts constitutes a crime under Article 231 of the Penal Code to
be punished. Some scholars believe that this legislation is no doubt the provisions of the illicit trade in exchange for the illegal acts of the crime of the fourth behavior. (Note: See Huang Jing-ping editor:
"undermine the market economic order and the crime research," the Chinese
People's University Press, 1999,671 pp.) We believe that, whether it be as a fourth type of behavior, or as "other serious disturb the market order illegal act "shall not affect the conviction and sentencing of the kinds
of behavior. Taking into account one-way interface between criminal law
and criminal law, and only as an interpretative provisions (Note: See Wong Tai-yun: "" defrauded people out on the Punishment of foreign exchange, foreign exchange evasion and illegal trade of crime decision "the
understanding and application of" containing " Criminal Justice Reference "1999 (1).) Illegal trafficking in illegal foreign currency constitutes the crime of criminal law in the judicial interpretation and there was no substantive change in a single row. The fourth set patterns of behavior that seem too far-fetched. We tend to be included in "other seriously
disturbed the market order of the illegal behavior." As for the illegal trading of foreign exchange act "serious" and "particularly serious", a
single criminal law have not been clearly defined. Judicial practice, you can refer to "About the trial have defrauded people out foreign exchange, the criminal cases of illegal trade in foreign exchange a number of issues specific application of the law interpretation of" the relevant provisions.
(B) the legislative acts of illegal trade in foreign exchange Evolution and the problem Retroactivity
Legislation on the illegal trade in foreign currency constitutes the
crime of illegal business there is a legislative process of evolution. Supreme People's Court "on the trial have defrauded people out foreign exchange, the criminal cases of illegal trade in foreign exchange a number of issues specific application of the interpretation of the law" and the
Ninth NPC Standing Committee, "have defrauded people out on the punishment of foreign exchange, foreign exchange evasion and illegal trade of crime, the decision" came out right The make different provisions. This, resulting in the law of the retroactive issue.
Judicial interpretation of Article 3, Section 4 provides that the implementation of the following acts of illegal trade in foreign exchange in order to penalize illegal business: The designated foreign exchange
banks and the China Foreign Exchange Trade Center and its sub-centers
other than the sale of foreign exchange, and disrupt the financial market order, and the illegal trade in foreign exchange 200 thousand U.S. dollars or more, or the illegal income of more than 50,000 yuan; companies,
enterprises or other units in violation of the provisions relating to foreign trade agency business, using illegal means, or knowingly to be forged or altered documents, business documents, for others the foreign exchange have defrauded people out foreign exchange designated banks, the amount of 500 million U.S. dollars or the illegal income of more than 500,000 yuan; intermediary introduction defrauded people for more than one million U.S. dollars, or illegal foreign exchange income of more than
100,000 yuan. Single Penal Code Article 4, the judicial interpretation of Article 3 provide that the provisions of the Exchange in the country outside the illegal trade in foreign exchange, those who disturb the market order to constitute a crime punishable crime of illegal business. Thus, after the implementation of one-way for the criminal law occurred
before the enactment of criminal law cases of illegal trade in foreign currency should be based on Article 225 of the Penal Code and the judicial
interpretation of Article 3 to be convicted. Right after the single criminal law enacted in cases of illegal trade in foreign currency shall be in accordance with Article 225 of the Penal Code and the Penal Code Article 4-way to be convicted.
4, disrupt telecommunications market behavior of the identification
Supreme People's Court "on the telecommunications market, the management tried to disrupt the order of the specific cases of application of the law interpretation of a number of issues," stipulates: "violating
state regulations by arbitrarily arrested for operating international telecommunications services for profit-making activities in Hong Kong,
Macao and Taiwan telecommunications business, disrupt telecommunications market management order, the plot serious, "constitutes the crime of illegal business, in accordance with Article 225 of the Penal Code provides that conviction and sentencing of 4. This explanation Zhaoduan in the case of large number of private Internet phone appear.
(A) the judicial interpretation of Zhao Duan
Chan Brothers, Fujian Province as an example the case of private telephone network, we can explore the source of judicial interpretation. Fuzhou, Fujian Province, Chen brothers for the private Internet phone
case, the relevant media have actually made a series of reports. (Note: "China Youth Daily," December 10, 1998 and January 29, 1999. Reported that the private Internet phone revealed gaps in the law should be to make up. Whether the legal vacuum, as can be used for further in depth.) Case by the Mawei District, Fuzhou City, Fujian Province Public Security Bureau of the admissibility of investigation, suspected of "illegal crime" suspects summoned Chen brothers, and the confiscation of the phone for the business
network telephones, tools such as color displays. Subsequently, the Chen brothers, to pay 50,000 yuan released on bail, while the Mawei district court legal proceedings. Of the original defendant, the operation of IP phones is illegal launched a debate. Chen brothers made "IP
Telecommunications is not a telecommunications franchise," requested the Court confirmed that Public Security Bureau "abuse of power." Mawei District Public Security Bureau, a defense that the Chen brothers, illegal
use of the Internet business network phone, with Article 225 of the Penal Code, "operating without a license laws and administrative regulations of the exclusive, proprietary items," "seriously disrupted the market order" and other features, should be held accountable criminal liability. The
first instance dismissed the indictment with second-instance ruling "IP
Telecommunications is not a telecommunications franchise." But whether Chen's brother, conduct of operations as "other serious illegal behavior
disturbed the market order"? Fuzhou City Intermediate People's Court of second instance ruling to deny the reality of this act was "illegal state regulations, disrupting the market order" in nature. Theoretical sector also believes that private business IP phone behavior is identified as
illegal behavior. (Note: See Chen Zexian: "crime of illegal business studies", in "Procuratorial Daily," February 12, 2000.) In relation to this case, we believe that there is no "Internet telephony not private," the general prohibition. Thus, the Chan brothers held criminally responsible as no legal basis, such as the Chen brothers case, conviction and sentencing of the crime of illegal business is bound to violate the principle of legality.
(B) the judicial interpretation of the understanding and application of
The judicial interpretation of the Supreme People's clear that unauthorized dealing in telecommunications services, disrupted the market order, in serious cases, constitute a crime of illegal business. The
appropriateness of judicial interpretation, not without questionable. (Note: from an economic point of view, this is purely the responsibility of accountability in administrative controls and industry monopolization of state power of the market economy through an obstacle. Zhou Qiren book: "real-world economics", China Development Press, 2002, 211 ~ 218.) However, in view of judicial interpretation has been put in practice should be followed and implemented. We intend to give any further explanation of the judicial interpretation:
First, what is in violation of state regulations? For communication, the chaotic situation, the State Council had approved and transmitted the Ministry of Posts and Telecommunications (at the time sequence of the State Council has not yet been established Ministry of Information Industry) "on strengthening the communications industry management and communication order, ask for instructions carefully straighten out." Referrals to a clear long-distance communications and international
communications by the postal and telecommunications departments under a unified management. In 1993, the State Council approved and transmitted the Ministry of Posts and Telecommunications, "on further strengthening the telecom services market management advice notice" (State Council 1993 No. 55) in to make further provisions calling for the liberalization of the telecommunications business operations, implementing the reporting system and operating licenses system. The same time, according to
September 1, 1993 enactment of the "out of radio management" requirement, set, use the radio (stations) of the units and individuals must submit a written application, apply to establish the station (stations) examination and approval procedures, to obtain radio licenses . Although the above
three provisions do not explicitly telecommunications business franchise, but can be regarded as the competent national authorities have to make the business telecommunications services require prior approval requirements.
The second is to disrupt the order of telecommunications management and conviction of the principal terms of behavior. According to judicial interpretation of the relevant provisions mainly include three kinds of behavior: (1) to take lease international lines, kangaroo relay equipment, the unauthorized operation of international telecommunications services or telecommunications services involving Hong Kong, Macao and Taiwan to conduct profit-making activities, disrupt telecommunications market
management order, the circumstances are serious; (2) without authorization settings, use the radio (stations), or the unauthorized occupation of the frequency of illegal international telecommunications services or telecommunications-related business of profit-making activities in Hong
Kong, Macao and Taiwan, the circumstances are serious; (3) to take other means, without permission operating international telecommunications
services or telecommunications services involving Hong Kong, Macao and Taiwan to conduct profit-making activities, disrupt telecommunications market management order, the circumstances are serious. For particularly serious circumstances are serious, and how to identify and judicial interpretation of clearly defined. Need clear that the interpretation of
Article 5, in violation of state regulations by arbitrarily setting, use the radio (stations), or the unauthorized occupation of the frequency of illegal international telecommunications services or telecommunications-
related business of profit-making activities in Hong Kong, Macao and
Taiwan, while committing illegal crimes and disrupting radio communications management order crime, constitutes a theoretical Imaginative Joinder of Offenses Penal Code, a heavier punishment in accordance with the provisions should be convicted and punished.
5, identification of illegal pyramid schemes
MLM is the enterprise product sold directly to consumers mode of operation, it is a mature market economy environment, corporate cost-
saving mode of operation for consumer convenience. For the pyramid, our government has taken a two different attitudes: first, strict supervision (January 10, 1997 the State Administration for Commerce and Industry issued Decree No. 73, "pyramid schemes management approach"); after the
light of "the low level of market development , mass consumer psychology is not yet mature, the management of inadequate laws and regulations, management tools is relatively backward, 1:00 pyramid difficult to effectively monitor and regulate business activities, "it is a total ban on direct sales business activities (the State Council, April 18, 1998 issued Decree 10 "pyramid selling business activities on the Prohibition of the notice"). Can not be overlooked is that China's current rampant
throughout the flood disaster and even direct sales business has evolved into a large number of the international community to prohibit the "rat" and the "pyramid selling methods." These illegal activities of serious violations of the interests of consumers and undermine normal market
economic order, that affect social stability, but its criminal law are not clearly defined. Guangdong Provincial Higher People's Court Supreme People's Court approved the "About the circumstances are serious acts of pyramid schemes, or pyramid schemes disguised characterization of the approval," pointed out: For the April 18, 1998 State Department "on the prohibition of pyramid selling business activities of the notice" released later, is still involved in MLM or a disguised pyramid selling activities,
disrupted the market order, the circumstances are serious, shall be in accordance with Article 225 of the Penal Code the provisions of paragraph 4, in order to illegally convicted and punished. Implementation of the above crime, while the other crimes constitute a penal provisions, in accordance with the provisions of a heavier penalty be convicted and punished.
It seems from this interpretation, paragraph 1, is a serious act of conviction pyramid schemes interpretation, paragraph 2, the implementation
of serious acts of illegal pyramid schemes on the heterogeneity of the