The family of the defendant Shi entrusted Shanghai Law Firm to appoint me as its defender. The defender consulted the case file, met with the defendant Shi XX, and listened to the public prosecutor's opinion in court after the trial. According to the facts of this case, this defender expresses the following defense opinions for the reference of the collegial panel.

1. The defendant * *' s behavior is a labor service behavior, not a division of labor behavior, not a business behavior, and does not have the objective elements of the crime of illegal business operation;

Defendant Shi * * was introduced in March, 2000, and was employed by the business department of * *. As an employee of the operation department, it is an obligation to obey the arrangement of the operation department. The work content and form of the defendant Shi * * are decided by the boss of the operation department. Defendant Shi XX's delivery, door-to-door installation, debugging and payment for goods were all carried out according to the instructions of the business department, instead of instructing others to deliver goods, deliver goods and install on the door. The defendant Shi * * is the executor of the instruction, not the sender. His behavior is labor service, not division of labor, passive execution, not active participation. Cihai's explanation of "management" is to manage and deal with economic undertakings. For any economic entity, only the behavior of management and handling is the business behavior. As far as this case is concerned, the act of deciding who, how, when, where, variety and quantity to deliver goods, install on site, debug and exit is a business act, but the act of picking up goods, delivering goods, install on site, debug and exit itself is not a business act.

Objectively, the crime of illegal business operation is manifested as operating franchise, monopoly commodities or other commodities with restricted business 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. The defendant Shi XX did not engage in business activities and did not have the objective elements of the crime of illegal business operations.

Second, the defendant Shi * * did not seek illegal interests, nor did he deliberately seek illegal interests;

Defendant Shi * * was introduced to work in the sales department of * * in March 2000, with a monthly salary of 1000 yuan/month ~ 1500 yuan/month. There are no "four golds", no bonuses, no red envelopes and dividends. The defendant Shi * * did not seek illegal interests. Did the defendant Shi * * deliberately seek illegal interests? No, the reconnaissance record of the defendant Shi * * shows that the defendant Shi * * works in the sales department and earns money to support his wife and children.

The crime of illegal business operation is subjectively intentional and has the purpose of seeking illegal interests. Defendant Shi XX does not seek illegal interests, and does not have the subjective elements of the crime of illegal business operation.

Three. Opinions on the application of laws and regulations in this case.

Article 225 of the Criminal Law adopts the way of "blank crime", literally stating that "violation of state regulations" is an objective element of crime. According to the legislative interpretation of Article 96 of the Criminal Law, "violation of state regulations refers to violation of laws, decisions, administrative regulations and administrative measures formulated by the National People's Congress and its Standing Committee, and decisions and orders issued by the State Council". This case is accused of illegal business operation, and the products it deals in are satellite receiving equipment, which is not stipulated in the laws and decisions formulated by the National People's Congress and its Standing Committee. There is only one administrative regulation, that is, 1993 10.5, which stipulates the administrative measures, decisions and orders issued by the State Council. the State Council has issued a special administrative regulation, that is, Decree of People's Republic of China (PRC) and the State CouncilNo. 129. Article 11 of the Order clearly stipulates: "Whoever sells satellite ground receiving facilities without authorization in violation of the provisions of this Ordinance shall be ordered by the administrative department for industry and commerce to stop selling, confiscate its satellite ground receiving facilities and may be fined less than twice the sales amount." Does not involve criminal punishment.

Notice of the Criminal Trial Chamber of Shanghai Higher People's Court and the Public Prosecution Office of Shanghai People's Procuratorate on Printing and Distributing the Answers to the Application of Criminal Law. The Shanghai Higher People's Court made the following explanation on the determination and punishment of the crime of illegal business operation in article 3 of the document "Shanghai High Law and Punishment (2002) 1": "When determining this crime, it should generally be based on the criminal rules stipulated by relevant laws and administrative regulations. The crime of illegal business operation cannot be applied as a new' pocket crime' expansion. " This defender believes that the act of selling satellite ground receiving facilities involved in this case should not be subject to criminal punishment according to law.

To sum up, the defendant Shi * * worked in the sales department of * * and the company of * *, but as a migrant worker, he did not have the identity of an operator, nor did he actually carry out business activities, let alone seek illegal interests. Moreover, the basis for the adjustment of the criminal law to this case is not sufficient. Please give full consideration to the opinions of this defender and give the defendant Shi a fair judgment!

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