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.
The crime of illegal business operation refers to an act that violates state regulations, engages in franchise, monopoly of commodities or other commodities with restricted transactions without permission, and engages in other illegal business activities, disrupting market order and having serious circumstances. In judicial practice, the identification and punishment of this crime should pay attention to the following aspects:
1 The key to this crime is that the actor must have illegal business practices. According to the provisions of the Criminal Law, illegal business mainly takes the following forms: (1) Without permission, it deals in franchised or monopolized commodities or other commodities whose trading is restricted by laws and administrative regulations, such as tobacco, salt, chemical fertilizers, pesticides, agricultural films and mineral products. ; (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 state departments; (four) illegal pyramid selling or disguised pyramid selling, illegal publishing, printing, copying, distribution and other illegal business activities that seriously disrupt the market order.
Illegal business activities that have been charged separately in the criminal law should not be dealt with according to this crime, but should be convicted and punished according to the corresponding charges.
Such as unauthorized establishment of financial institutions, transfer of business licenses of financial institutions, unauthorized issuance of stocks, corporate bonds, stealing and selling cultural relics, buying and selling precious animals and their products, etc. In essence, it also belongs to the category of illegal business operations, but there are special provisions in the criminal law, so these acts can no longer be convicted and punished for this crime as other illegal business operations.
Illegal business operation must reach a serious degree to constitute this crime, otherwise it can only be given administrative punishment according to relevant administrative regulations. To determine whether the circumstances are serious, we should generally consider the following aspects: (1) illegal business volume and illegal income; (2) the number of illegal operations; (3) Whether it has caused heavy losses or other serious consequences; (4) whether he still refuses to repent after being punished by the administration, etc. Specific prosecution standards will be specified below.
According to the criminal law, serious circumstances are a necessary condition for the crime of illegal business operation. However, due to the wide range of illegal business operations and different performances, it is difficult to determine whether the circumstances are serious in practice. Therefore, the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Prosecution Standards for Economic Crimes stipulates the corresponding prosecution standards according to the characteristics of different illegal business operations: 1 Violating state regulations, engaging in international telecommunications business or engaging in profit-making activities involving telecommunications business in Hong Kong, Macao and Taiwan without authorization by renting international special lines, setting up exchange equipment privately or other methods, and being suspected of one of the following circumstances, it shall be prosecuted: (1) Out-of-business volume 65438. (3) Having been subjected to administrative punishment more than twice for illegally operating international telecommunications services or telecommunications services involving Hong Kong, Macao and Taiwan, although the above-mentioned amount standard has not been reached.
2. Illegal foreign exchange operation shall be prosecuted if it is suspected of any of the following circumstances:
(1) buying and selling foreign exchange outside designated foreign exchange banks and China Foreign Exchange Trading Center and its sub-centers, with an amount of more than USD 200,000, or with an illegal income of more than RMB 50,000;
(2) Companies, enterprises or other units, in violation of foreign trade agency business regulations, fraudulently purchase foreign exchange for others from designated foreign exchange banks by illegal means or with forged or altered vouchers or commercial documents, with an amount of more than 5 million US dollars or illegal income of more than 500,000 yuan;
(3) fraudulently purchasing foreign exchange through an intermediary, with an amount of more than US$ 6,543.8+0,000 or an illegal income of more than RMB 6,543.8+0,000.
3. Publishing, printing, copying and distributing illegal publications in violation of state regulations shall be prosecuted if they are suspected of one of the following circumstances: (1) The illegal business amount of individuals is more than 50,000 yuan, and the illegal business amount of units is more than150,000 yuan; (two) the amount of illegal income of individuals is more than twenty thousand yuan, and the amount of illegal income of units is more than fifty thousand yuan; (3) Individuals illegally operate 5000 newspapers, 5000 periodicals, 2000 books, more than 500 audio-visual products and electronic publications, and units illegally operate 15000 newspapers, 15000 periodicals, 5000 books, audio-visual products and electronic publications 10.
In addition, if the business volume, illegal income and business volume are close to the above standards, and there are any of the following circumstances, they can also be prosecuted: (1) Those who have been subjected to administrative punishment more than twice for operating illegal publications within two years; (two) the operation of illegal publications has caused adverse social impact or other serious consequences.
Anyone who engages in securities, futures and insurance business illegally without the approval of the relevant competent departments of the state, whose illegal business amount is more than 300 thousand yuan or whose illegal income is more than 50 thousand yuan, shall be prosecuted.
Engaged in other illegal business activities, suspected of one of the following circumstances, should be prosecuted: (1) the amount of personal illegal business is more than 50,000 yuan, or the amount of illegal income is more than 1 10,000 yuan; (2) The illegal business operation amount of the unit is more than 500,000 yuan, or the illegal income amount is more than 654.38+10,000 yuan.
According to the provisions of the Criminal Law and relevant judicial interpretations, the following points should be paid attention to when applying penalties to the crime of illegal business operation:
1 If a natural person commits this crime, he shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also or solely be fined not less than 1 times but not more than 5 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/kloc-0 but not more than 5 times of illegal gains or confiscation of property.
If a unit commits this crime, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished in accordance with the provisions of this crime committed by natural persons.
The criminal law and judicial interpretation have no uniform provisions on the above-mentioned particularly serious circumstances, and only some judicial interpretations have provisions on the following specific circumstances in which the circumstances of the crime of illegal business operation are particularly serious:
(1) According to the provisions of Articles 12 to 14 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, the circumstances in which individuals operate illegal publications are particularly serious, which means that there are one of the following circumstances: ① illegal business amount/kloc-0.50 million yuan but not more than 300,000 yuan; (two) the amount of illegal income is more than 50 thousand yuan and less than 654.38+10 thousand yuan; Operating 65,438+05,000 newspapers or 65,438+05,000 periodicals or 5,000 books or 65,438+05,000 audio-visual products and electronic publications.
If the circumstances of illegal publications are particularly serious, it means that there are one of the following circumstances: ① the illegal business amount is more than 500,000 yuan to 6,543.8+0,000 yuan; The amount of illegal income is 6.5438+0.5 million yuan to more than 300,000 yuan; There are 50,000 kinds of newspapers or periodicals or books15,000 kinds or more than 5,000 kinds of audio-visual products and electronic publications.
The amount of business, illegal income or business is close to the above-mentioned starting penalty standard, and it can also be considered as particularly serious under any of the following circumstances:
(1) Having been subjected to administrative punishment for publishing, printing, copying and distributing illegal publications twice or more within two years; Publishing, printing, copying and distributing illegal publications have adverse social impact or other serious consequences.
(II) According to Articles 2 and 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Cases Disrupting the Management Order of the Telecommunication Market, illegal operation of international telecommunication services involving Hong Kong, Macao and Taiwan is particularly serious, which means one of the following circumstances:
(a) the amount of outbound business is more than 5 million yuan; The loss of telecom tariff caused by the operation of inbound business is more than 5 million yuan.
If the amount of business volume or telecom tariff loss is close to the above standards and has one of the following circumstances, it can also be considered as particularly serious:
(1) Being subject to administrative punishment for more than two years for illegally operating international business and telecommunications business involving Hong Kong, Macao and Taiwan; Illegal operation of international telecommunications services involving Hong Kong, Macao and Taiwan has caused other serious consequences.
During the prevention and control of sudden infectious diseases and other disasters, whoever, in violation of state regulations on market operation and price management, drives up prices for profiteering and seriously disrupts market order, constitutes the crime of illegal business operation, shall be given a heavier punishment.