Constitutive elements of the crime of illegal business operation
According to the law, judging whether the buying and selling behavior of merchants belongs to illegal business depends on whether it meets the constitutive requirements of illegal business. If it meets the requirements, it constitutes the crime of illegal business operation; Those who do not meet the requirements do not constitute a crime, but may be punished by the administrative department for industry and commerce.
According to the regulations, the constitutive elements of the crime of illegal business operation include the following elements:
1. Object elements: The object of the crime of illegal business operation is the national market management system and business license that restrict the sale of goods.
To put it bluntly, businesses violate state regulations and engage in certain business activities without permission, which disrupts market order and harms social and national interests.
2. Objective requirements: engaging in monopoly, monopoly or other commodities with restricted trading 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.
In essence, it is that the merchant has carried out unauthorized trading activities. If the merchant has no actual action, it is impossible to constitute the crime of illegal business operation by thinking alone.
3. Subject elements: the subject of the crime of illegal business operation is the general subject, that is, all natural persons who have reached the age of criminal responsibility and have criminal responsibility ability. The unit can also be the subject of this crime.
Usually, it means that a normal person who has reached the age of 16 constitutes the crime of illegal business operation, while a person who has not reached the age of 16 or a mental patient cannot constitute the crime of illegal business operation. The so-called "unit" refers to all kinds of companies, enterprises, institutions and other legal persons and organizations.
4. Subjective elements: the subjective aspect of the crime of illegal business operation is intentional and has the purpose of seeking illegal interests.
In other words, you must buy and sell in violation of state regulations without permission in order to constitute the crime of illegal business operation.
legal ground
Criminal law of the people's Republic of China
Article 225
The crime of illegal business operation violates the provisions of the state and commits one of the following illegal business operations, disrupting the market order, and if the circumstances are serious, it 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.