The crime of illegal business operation refers to illegal business operation, which involves operating franchised, monopolized or other restricted goods without permission, buying and selling import and export licenses, import and export certificates of origin, business licenses or other approval documents stipulated by laws and administrative regulations, engaging in other illegal business activities, disrupting market order and having serious circumstances. The constitution of this crime is as follows: the object of the crime of illegal business operation is the market management system in which the state restricts the sale of goods and business licenses. Two. Objective elements: This crime is objectively manifested as engaging in monopoly, monopoly of commodities or other commodities with restricted operation without permission, buying and selling import and export licenses, import and export certificates of origin, business licenses or other approval documents stipulated by laws and administrative regulations, and engaging in other illegal business activities that disrupt market order and have serious circumstances. There are mainly the following kinds of behaviors: 1, franchising without permission, monopolizing commodities or other commodities whose trading is restricted by laws and administrative regulations. In order to ensure the normal order of the market, in our country, some materials related to the national economy and people's livelihood, people's life, health and safety, and public interests are restricted from trading. After approval and obtaining a business license, they can engage in business activities such as acquisition, storage, transportation, processing, wholesale and sales. It is illegal to operate without approval. The so-called restricted commodities refer to commodities that are not allowed to be bought and sold freely in the market according to regulations, such as important means of production and consumer goods that are not allowed to be bought and sold freely according to state regulations, as well as commodities operated by specialized units designated by the state, such as tobacco monopoly products, foreign exchange, gold and silver and their products, gold and silver handicrafts, jewelry and precious medicinal materials. Article 11 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Publications (Interpretation [1998] No.30): "In violation of state regulations, publishing, printing, copying and distributing other illegal publications that seriously endanger social order and disrupt market order other than those stipulated in Articles 1 to 10 of this Interpretation, if the circumstances are serious, it shall be in accordance with Item (3) of Article 225 of the Criminal Law. Only those laws and regulations that restrict business are restricted goods, otherwise they cannot be identified. In addition, whether the goods are restricted or not is not immutable, and the state can make changes and adjustments according to actual needs. 2. Buying and selling import and export licenses, import and export certificates of origin and business licenses or approval certificates stipulated by other laws and regulations. The business license or relevant approval documents are valid certificates for the holder to carry out economic activities. Nothing is illegal business. Some lawless elements are not qualified to deal in commodities restricted by the state and cannot obtain relevant business licenses or approval documents, so they buy or even forge business licenses or approval documents from others in an attempt to evade inspection and sanctions. As a result, the illegal behavior of buying and selling business licenses and approval documents also came into being. This kind of behavior directly urges countries with serious illegal business circumstances to limit the proliferation of buying and selling goods, which is quite harmful. So we should also replace punishment with punishment. The import and export license issued by the administrative department of foreign economic relations and trade of the State Council and its authorized institutions is not only a legal certificate for foreign trade operators to conduct foreign trade activities legally, but also an important certificate for the state to manage import and export goods and technologies. For example, the customs must take this as the basis when inspecting and releasing import and export goods and technologies. Import and export certificate of origin refers to a valid certificate used to prove that the origin of import and export goods and technologies belongs to a certain country or region. It is a proof that importing countries and regions levy different tariffs according to different origins and implement other import differential treatment. The so-called business license or approval documents stipulated by other laws and administrative regulations generally refer to the business license or approval documents for restricted commodities. For example, the tobacco monopoly license is a certificate issued by the tobacco monopoly bureau to enterprises, units and individuals to allow them to operate tobacco monopoly products, including tobacco monopoly production license and tobacco monopoly business license. The so-called transportation permit is a certificate issued by a provincial tobacco company to handle the consignment procedures of tobacco leaves according to the allocation plan, documents or contracts of the Tobacco Corporation. The former is the documentary evidence that the licensed unit or individual is engaged in tobacco monopoly business, and it is an important certificate to distinguish between legal operation and illegal operation of tobacco industry. The latter is an important certificate for the receiving unit or individual to engage in tobacco transportation. After examination and approval, the competent state department will issue the above certificates to units or individuals to strengthen the supervision and unified management of the production, operation and transportation of tobacco monopoly products. 3. Illegally engaging in securities, futures or insurance business without the approval of the relevant state departments. 4 illegal pyramid schemes, lottery transactions and other illegal business activities that seriously disrupt the market order; Reselling wastes whose import is prohibited or restricted by the state; Monopoly goods, drive up prices and hoard; Selling foreign exchange, licenses, indecent articles, etc. This crime belongs to the circumstance crime, and the illegal business operation must be "serious" to constitute a crime. If it is only illegal business and the circumstances are not serious, it does not constitute a crime. " The circumstances are particularly serious "is an aggravating circumstance. Generally speaking, the basic plot of "serious circumstances" should be that the amount of illegal income is large or huge; The basic plot of "especially serious circumstances" should be that the amount of illegal income is extremely huge and should be considered in combination with other circumstances. The so-called other circumstances mainly refer to: those who have repeatedly engaged in illegal business operations and still do not repent after administrative punishment; Engaging in illegal business activities by taking advantage of authority, which has a bad influence; Monopoly of commodities, driving up prices, seriously disrupting the market and seriously affecting national economic and social stability; Illegal business activities causing serious consequences, etc. Three, the main elements: the subject of this crime is the general subject, that is, all natural persons who have reached the age of criminal responsibility and have criminal responsibility ability. A legally established and responsible unit can also be the subject of this crime. According to this article, the subject of this crime refers to the business operator. However, under the condition of market economy, "no one does not do business". If the subject of this crime is limited to a special subject, many acts of buying and selling goods, import and export licenses and import and export certificates of origin without any business license (non-operators) will not be punished. Therefore, the subject of this crime is the general subject. Subjective elements: Subjectively, this crime is constituted by intention and has the purpose of seeking illegal interests, which are the two main contents of this crime. If the actor buys and sells the business license because he doesn't understand the laws and regulations, he should not be punished as this crime, and the competent department should investigate his administrative responsibility. V. Relevant provisions of the Criminal Law on the crime of illegal business operation: Article 225 of the Criminal Law stipulates that anyone who violates state regulations and commits one of the following illegal business operations and disrupts market order, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also 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 his illegal income or his property shall be confiscated: (1) dealing in franchise, monopoly goods or other commodities whose business is restricted by laws and administrative regulations without permission; (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) Other illegal business operations that seriously disrupt the market order. The amount involved in this case is large and should be sentenced to more than 5 years.

Legal objectivity:

Criminal law of the people's Republic of China

Article 225

Whoever, in violation of state regulations, commits one of the following illegal business operations and disrupts the market order, if the circumstances are serious, 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 for illegal gains or confiscation of property:

(a) without permission, the franchise, monopoly of goods or other goods restricted by laws and administrative regulations;

(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;

(three) without the approval of the relevant competent departments of the state, illegally engaged in securities, futures, insurance business, or illegally engaged in fund payment and settlement business;

(four) other illegal business activities that seriously disrupt the market order.