(a) operating a franchise, monopoly or other restricted goods 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) illegally engaging in securities, futures or insurance business without the approval of the relevant competent department of the state;
(four) engaged in other illegal business activities, disrupting the market order, and the circumstances are serious.
Understanding of "violation of state regulations" in the crime of illegal business operation
At the first level, if an act does not violate the state regulations, but only violates local laws and departmental rules lower than the state regulations, it certainly does not constitute the crime of illegal business operation;
On the second level, if an act violates the state regulations, but the state regulations do not stipulate that the act constitutes a crime ... criminal responsibility should be investigated. Criminal judicial interpretation does not explain the act as an act of illegal business operation, and of course it does not constitute an illegal business operation crime.
At the third level, if an act violates state regulations and the state stipulates that the act constitutes a crime, it should be investigated for criminal responsibility, but the criminal judicial interpretation does not clearly state that the act is an act of illegal business operation, and certainly does not constitute an illegal business operation crime, such as operating without a license.
According to the relevant regulations, those who engage in illegal audio-visual products, which constitute a crime, should be dealt with separately according to the specific circumstances of the case. According to the relevant provisions of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Publications and the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for the Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (II),
1 Article 1 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Publications, which came into effect on February 23, 1998, stipulates: "In violation of state regulations, publishing, printing, copying and distributing articles1to 10 of this Interpretation.
According to the provisions of Article 12 of the Judicial Interpretation, if the personal business amount is more than 50,000 yuan to 654.38+10,000 yuan, the illegal income amount is more than 20,000 yuan to 30,000 yuan, and there are more than 500 audio-visual products and electronic publications, it is a crime of illegal business operation. If the business amount is more than 6,543.8+0.5 million yuan and less than 300,000 yuan, the amount of illegal income according to law is more than 50,000 yuan and more than 6,543.8+0.0 million yuan, and the number of audio-visual products and electronic publications is more than 6,543.8+0.5 million pieces (boxes), it is illegal business, and the circumstances are particularly serious.
Article 13 of the judicial interpretation stipulates that the business amount of a unit is more than15,000 yuan to 300,000 yuan, the illegal income is more than 50,000 yuan to 654,380+0,000 yuan, and the audio-visual products and electronic publications are more than 1500 pieces (boxes), which is an illegal business operation crime. The business amount is more than 500,000 yuan to 6,543.8+0,000 yuan, the illegal income is more than 6,543.8+0.5 million yuan to 300,000 yuan, and more than 5,000 pieces (boxes) of audio-visual products and electronic publications are engaged in illegal business, and the circumstances are particularly serious.
In the notice issued by the Supreme People's Procuratorate and the Ministry of Public Security on May 7, 20 10, Article 79 of the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for the Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (II) stipulates:
1. The amount of illegal business operation by individuals is more than 50,000 yuan, and the amount of illegal business operation by units is more than150,000 yuan;
2. The amount of illegal income of individuals is more than 20,000 yuan, and the amount of illegal income of units is more than 50,000 yuan;
3. Individuals illegally operate 5000 newspapers or 5000 periodicals or 2000 books or more than 500 audio-visual products and electronic publications.
4. Although it does not meet the above-mentioned amount standard, it has one of the following circumstances:
(1) publishing, printing, copying and distributing illegal publications twice or more within two years, publishing, printing, copying and distributing illegal publications;
(two) publishing, printing, copying and distributing illegal publications, which has caused adverse social impact or other serious consequences.
1. The amount of illegal business operation by individuals is more than 150,000 yuan, and the amount of illegal business operation by units is more than 500,000 yuan;
2. The amount of illegal income of individuals is more than 50,000 yuan, and the amount of illegal income of units is more than 150,000 yuan;
3. Individuals illegally run 15,000 newspapers and periodicals or more than 5,000 books, and more than 1,500 kinds of audio-visual products and electronic publications.
4. Although the above amount standard is not met,
laws and regulations
(1) criminal law:
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) operating a franchise or monopoly commodity or other commodities whose operation 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;
(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.
(2) the National People's Congress Standing Committee (NPCSC)'s decision on punishing foreign exchange fraud, evasion and illegal trading.
4. Whoever illegally buys or sells foreign exchange outside the trading places stipulated by the state, thus disrupting the market order, if the circumstances are serious, shall be convicted and punished in accordance with the provisions of Article 225 of the Criminal Law.
Where a unit commits the crime mentioned in the preceding paragraph, it shall be punished in accordance with the provisions of Article 231st of the Criminal Law.
judicial explanation/interpretation
Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases that Hinder the Prevention and Control of Infectious Diseases (implemented on May 15, 2003)
Article 6 During the period of prevention and control of sudden infectious diseases and other disasters, whoever, in violation of the provisions of the State on market operation and price management, drives up prices and profiteers, seriously disrupts the market order, and the amount of illegal income is relatively large or there are other serious circumstances, shall be convicted of the crime of illegal operation in accordance with the provisions of Item 4 of Article 225 of the Criminal Law and be severely punished according to law.
Interpretation of Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Illegal Production, Sale and Use of Feed and Animal Drinking of Prohibited Drugs (effective as of August 16, 2002)
Article 1 Whoever illegally produces and sells clenbuterol hydrochloride and other drugs that are prohibited from being used in feed and animal drinking water without obtaining the Pharmaceutical Production and Business License and the approval number, thus disrupting the order of the pharmaceutical market, and the circumstances are serious, shall be investigated for criminal responsibility for the crime of illegal business in accordance with the provisions of Item (1) of Article 225 of the Criminal Law.
Article 2 Where drugs such as clenbuterol are added to the feed produced and sold, which are prohibited from being used in feed and animal drinking water, or if the circumstances are serious, criminal responsibility shall be investigated for the crime of illegal business operation in accordance with the provisions of Item (4) of Article 225 of the Criminal Law.
Article 5 Whoever commits an act stipulated in this Interpretation and commits two or more crimes stipulated in the Criminal Law at the same time shall be investigated for criminal responsibility in accordance with the provisions of heavier punishment.
Article 6 Drugs prohibited from being used in feed and animal drinking water shall be determined according to the list of drugs prohibited from being used in feed and animal drinking water published by relevant state departments.
law
Article 225 of the Criminal Law shall, in violation of state regulations, commit one of the following illegal business operations, disrupting the market order, and if the circumstances are serious, 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) operating franchise, special business projects or other restricted business projects as stipulated 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) illegally engaging in securities, futures or insurance business without the approval of the relevant competent department of the state;
(four) other illegal business activities that seriously disrupt the order of the city. Article 231 Where a unit commits the crimes specified 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 shall be punished in accordance with the provisions of this section.
Definition of crime
The provisions of Article 225 of the Criminal Law on the crime of illegal business operations can only be applied to illegal business operations that disrupt market order and have serious circumstances. The application of item 4 of this article cannot be divorced from this basic premise. Therefore, for a kind of harmful behavior that is not clearly stipulated in the criminal law, if it is punished as the crime of illegal business operation, it must meet the following conditions:
Use the internet to avoid illegal sales.
(1) The act is a commercial act. Although the word "management" does not specifically refer to economic and business activities in linguistics, it refers to "planning and management" and "planning and organization in general". However, as an illegal business activity stipulated in the crime of disrupting the order of socialist market economy, the word "business" should be a business activity in the economic field, that is, it should be understood as a profit-making economic activity, including engaging in industry, commerce and service industry. What needs to be emphasized is that this kind of "operation" is for profit, which is a basic feature of the crime of illegal operation as an economic crime. If a so-called business activity is not for profit, but for public welfare or charity, then even if some aspects of the behavior do not conform to the relevant laws and regulations, it should be excluded from this crime.
(2) The business conduct is illegal. The so-called "violation of the law" refers to the violation of the laws and decisions formulated by the national legislature and the administrative regulations, administrative measures, decisions and orders formulated by the State Council. Usually refers to the prohibition or restrictive norms that violate national laws and regulations. If a business operation is not prohibited or restricted by national laws and regulations, the business operation should not be regarded as illegal. For example, private operation of IP phones should not be regarded as illegal before the national legislature and the State Council have explicitly prohibited or restricted it. Without the State Council's approval or authorization, the relevant provisions in some administrative regulations or other documents issued by the State Council's subordinate departments or local governments are beyond the contents of national laws and regulations, and generally cannot be used as the legal basis for identifying illegal business operations.
(3) Illegal business operations seriously disrupt market order. Taking market order as the object of this crime, on the one hand, it shows that the crime of illegal business operation is a crime of disturbing market order, on the other hand, the coincidence of the object of individual crime and the object of similar crime also confirms that the provisions of this crime are the "bottom-up" clauses in the section of "Crime of disturbing market order". This so-called "market order" includes market access order, market competition order and market transaction order. These three orders may be the object of the crime of illegal business operation.
think
1. Criminal violations are consistent with administrative violations, that is, illegal operators must violate relevant industrial and commercial laws and regulations, and there is no criminal violation without administrative violations.
2. Subjectively, the actor must be intentional and take profit as the purpose. Those who engage in illegal business knowing that it is illegal and not for profit are not considered to constitute, and only administrative punishment can be given to the perpetrator.
3. Only if the circumstances of the crime are serious can it constitute a crime, and whether the circumstances are serious should be determined from the amount and income of illegal business operations, whether the actor has carried out illegal business operations, causing great losses to the country or other serious consequences, and whether he still refuses to repent after administrative punishment.
Market economy is not only a free economy, but also an economy ruled by law. To judge the crime of illegal business operation, we should pay attention to the following issues:
1. The illegality of illegal business operations must be in violation of national laws, administrative regulations and other normative documents.
The illegality of illegal business operation refers to the violation of state regulations. This "State Regulation" refers to decisions and orders that violate laws and decisions formulated by the National People's Congress and its Standing Committee, administrative regulations formulated by the State Council, prescribed administrative measures, and issued. Violation of state regulations in the crime of illegal business operation refers to the provisions of the state on commodity monopoly or other laws and regulations restricting sales, as well as the provisions of the state on import and export licenses, import and export certificates of origin and other laws and regulations on business license and approval, so it does not mean violation of general business laws and regulations. Operating without a license or operating beyond the scope itself is not illegal. It is illegal in the sense of criminal law to operate without a license or beyond the scope of business and need administrative permission. For example, there is nothing in the business license to deal in tobacco, but if it goes beyond the scope, it is illegal, because tobacco is a franchise project. However, it is not illegal to operate beyond the scope or monopolize or restrict the sale of goods without administrative license or approval.
2. Other illegal business practices must be identified in strict accordance with the express provisions of the law.
According to the basic principle of "no crime and no punishment without explicit provisions in 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 according to law. The provisions of laws, administrative regulations or judicial interpretations on other illegal business operations should be restricted by the principle of "prohibiting the application of retroactivity", otherwise the scope of the crime of illegal business operations will be expanded at will.
3, 2065438+May 2, 2003 "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases Endangering Food Safety" clearly stipulates two forms of crime.
Article 11 stipulates that whoever, in violation of state regulations, produces and sells non-food raw materials prohibited by the state for the purpose of providing others with food for 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.
Whoever, in violation of state regulations, produces or sells pesticides, veterinary drugs, feed, feed additives or feed raw materials or feed additive raw materials, if the circumstances are serious, shall be convicted and punished in accordance with the provisions of the preceding paragraph.
Whoever commits the acts mentioned in the preceding two paragraphs and at the same time constitutes the crime of producing and selling fake and inferior products, the crime of producing and selling fake and inferior pesticides and veterinary drugs and other crimes shall be convicted and punished in accordance with the provisions of heavier punishment.
Article 12 stipulates that anyone who, in violation of state regulations, sets up a pig slaughtering plant (field) without permission to engage in business activities such as pig slaughtering and selling, 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.
punish
1. If a natural person commits a crime, he shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also or 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 his illegal income or his property shall be confiscated.
2. If a unit commits a crime, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be investigated for criminal responsibility in accordance with the provisions of this article.