How to characterize the case of illegal labor export, fraud or illegal operation?

Defendant Lin Lin (a pseudonym).

Defendant Zhou Hui (pseudonym).

At the end of 200 1 year, the defendant Lin privately engraved the seal of "Jurong Consulting Office of Zhenjiang Jingkou Overseas Labor Service Co., Ltd." and recruited 8 laborers in Jurong to go to Malaysia in the name of the consulting office. Because Malaysia did not have the qualification for exporting labor services, and Malaysia did not open the general labor market to China (the confessions of the two defendants were only known after the incident), Lin Lin met the defendant Zhou Hui through others' introduction and asked him to help with the travel passport and other related matters. Zhou Hui agreed and passed a salesman of Zhenjiang Oriental Travel Company. After paying the relevant formalities (the defendant Zhou Hui's company also charged a handling fee of 200 yuan for each person), he issued an invoice to the travel company to pay for traveling abroad, and successfully applied for a travel passport with the invoice. Then Liang, a Guangzhou Ocean International Tourism Company, applied for a tourist visa for the laborers and bought an exit ticket. Finally, the defendant Lin Lin sent eight laborers to Malaysia in the name of tourism, and Li of that country was responsible for the specific resettlement after arrival. Among these labor exporters, the defendant Lin Lin * * * charged the labor personnel fee 163800 yuan. Among them, Guangzhou Liang visa and air ticket booking fee is 24,000 yuan, Li154,000 yuan, and labor service payment 14000 yuan.

During this period, the defendant Zhou Hui, as the general manager of Zhenjiang Zhiyuan International Technology and Talent Consulting Service Co., Ltd. (hereinafter referred to as Zhiyuan Company), registered and established Jurong Office of Zhiyuan Company on June 5438+1October 8, 2002, and officially hired the defendant Lin Lin as the director of the office.

June 5438+October 2002 10, the defendant Lin Zhiyuan directly recruited six laborers to Malaysia in Jurong in the name of Jurong Office. Similarly, because Zhiyuan Company did not have the qualification of exporting labor services, the defendants Zhou Hui and Linlin used the same method as last time to send the six laborers to Malaysia. Later, the defendant Lin learned in Malaysia that for the first batch of eight laborers sent to Malaysia, Mary did not fully implement the work according to the contract, and some of the implemented work benefits were far lower than those agreed in the contract, and they failed to obtain the work permits necessary for legal work. However, the defendant Lin Lin still asked the eight workers to say that they had lived and worked well in Malaysia and took them back to China for publicity. In March 2002, the defendants Lin Lin and Zhou Hui used the same method and means to transport four laborers to Malaysia in the name of Jurong Office of Zhiyuan Company. Defendants Lin Lin and Zhou Hui charged the two groups of laborers a total of RMB 265,438+RMB 3,000. Among them, the defendant Lin paid Guangzhou Liang a tourist visa to buy a plane ticket for 30,000 yuan, paid Li more than 65,438 yuan +0.6 million yuan, and got his own money10.7 million yuan. Zhiyuan company failed to make a profit.

From April to June, 2002, the defendant Zhou Hui recruited nine laborers in Danyang to go to Malaysia in the name of "Zhiyuan Company", and * * * collected 242,600 yuan for the laborers' fees. The company kept part of the handling fee (about 1.34 million yuan), and all the rest were remitted to the accounts of Lin and Liang in Guangzhou through the company's finance for visa application, air ticket booking and remittance to Ma. In the same period, the defendant Zhou Hui also entrusted Qingdao Overseas Personnel Service Company to recruit 10 laborers from Malaysia, and Zhiyuan Company paid Lin Lin more than 230,000 yuan in advance to send the 10 laborers to Malaysia.

After defendants Lin Lin and Zhou Hui sent 37 laborers to work in Malaysia five times, Mary was cheated because he could not get the necessary work permit to work in Malaysia, and found that Malaysian companies with employment contracts did not exist at all. At this time, Li avoided seeing and couldn't contact, and the defendant Linlin couldn't properly solve the matter and control the development of the situation. The workers then sat in the Malaysian Embassy of China and applied for consular protection. The Embassy of China in Malaysia has repeatedly sent urgent telex to the Ministry of Foreign Affairs to reflect this matter. After the incident, the defendant Zhou Hui went to Malaysia three times to recall all the laborers and returned some victims with RMB378,000. The public security organ seized the defendant Zhou Hui's money of RMB 6,543,800+0.22 million.

[Trial] There were different opinions on how to determine the nature of this case during the trial. The first opinion was that the defendants Lin Lin and Zhou Hui, knowing that Zhiyuan Company did not have the qualification to export foreign-related labor services, still used generous treatment as bait to recruit laborers to work in Malaysia and sent them abroad by applying for tourist visas. Objectively, it has the behavior of concealing the truth of illegal labor export, subjectively, it has the intention of illegally occupying the money of laborers, which constitutes the crime of fraud.

The second opinion is that the actions of the defendants Lin Lin and Zhou Hui do not constitute the crime of ordinary fraud, but constitute the crime of contract fraud. The reason is that in the process of sending laborers to Malaysia, victims are defrauded of money by signing contracts. This not only violates the ownership of public and private property, but also violates the object of economic contract management order. In this case, Zhiyuan Company is a legally established limited liability company with legal personality, which should constitute a unit crime.

The third opinion is that this case should be mainly identified as the crime of illegal business operation committed by Zhiyuan Company. Some people think that the defendant Lin Lin illegally exported eight laborers for the first time, which can be regarded as the unit behavior of Zhiyuan Company. Some people think that it should be recognized as personal fraud in Lin Lin; There are also views that it should be regarded as Lin Lin's personal illegal business behavior.

[Comment] The author tends to be the last of the third opinions. The specific reasons are as follows: first, the defendant's subjective intention of illegally possessing public and private property is not obvious, and his behavior does not conform to the characteristics and elements of fraud and contract fraud.

First of all, China's criminal law stipulates that the crime of fraud refers to the act of defrauding a large amount of public and private property by fabricating facts or concealing the truth for the purpose of illegal possession. This legal provision makes it clear that the subjective intention of the crime of fraud is for illegal possession, and the means adopted is to fabricate facts or conceal the truth. The object of infringement is a single object, that is, the ownership of public and private property, and whether to sign a written contract is not an essential element of crime. Combined with this case, the public prosecution agency accused the two defendants of illegally recruiting and exporting laborers in written forms such as employment contracts and letters of guarantee. Therefore, the behavior of the two defendants does not meet the characteristics of fraud.

Secondly, the crime of contract fraud stipulated in China's criminal law refers to the act of defrauding the other party's property for the purpose of illegal possession during the signing and performance of the contract. It infringes on complex objects, that is, public and private property ownership and economic contract management system. The reason why the new criminal law separates the crime of contract fraud from the crime of ordinary fraud is to better distinguish the two crimes so as to accurately apply the law. In this case, although the behavior of the two defendants possessed certain property of others, which violated the economic contract management system, it was mainly illegal labor export activities, and obtained corresponding benefits from it. Therefore, the subjective intention of illegally possessing public and private property was not obvious, which did not conform to the essential characteristics of the crime of contract fraud, and the two defendants should not be punished for contract fraud.

Third, the subjective purpose of the two defendants is to obtain agency fees. Above, the author analyzes the essential characteristics of fraud and contract fraud. In this case, the contracts signed by the two defendants with all the laborers going abroad stipulated that all the people going abroad should be allowed to go abroad by Li of Malaysia, and all the necessary expenses have been paid to Li. As for whether Li Can got a legal work permit, Lin Lin and Hui Zhou didn't know at first. In the whole process of labor export, although Linlin knew that he was not qualified for labor export, he also carved the official seal privately, but did it reach the level of fraud? There is not enough evidence to prove it. Because the essential feature of fraud is to defraud public and private property for the purpose of illegal possession, in this case, the first batch of labor export is a loss; The second batch of Linlin's personal profit is 1.7 million yuan, and Zhiyuan Company has no profit; The third batch of Zhiyuan Company made a profit of 1.34 million yuan, and obtained corresponding profits from the labor export business, which belongs to the nature of agency fees and does not occupy all the property delivered by the victims. The intention of illegal possession is not obvious and the evidence is insufficient.

Second, the objective behavior in this case is illegal business operation.

First of all, the crime of illegal business operation stipulated in Article 225 of China's Criminal Law refers to illegal business operation in violation of state regulations, disrupting market order, and the circumstances are serious. Violation of state regulations here refers to violation of state laws or administrative regulations. If the circumstances are serious, it can be understood that the amount of illegal business must reach a certain amount standard. Although there is no clear amount standard or judicial interpretation in the Criminal Law and the Supreme People's Court, it has been clearly stipulated in the "Standards for the Prosecution of Economic Crime Cases" issued by the Supreme People's Procuratorate and the Ministry of Public Security on April 1 that "the illegal business amount of an individual is more than 50,000 yuan or the illegal business amount of a unit is more than 500,000 yuan or the illegal income is more than 65,438+10,000 yuan.

Secondly, the export of labor services can also be the object of the crime of illegal business operation. Article 225 of the Criminal Law stipulates that one of the following illegal business operations in violation of state regulations constitutes the crime of illegal business operations, that is, operating franchised or monopolized commodities or other commodities whose operation is restricted by laws and administrative regulations without permission; 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; Illegal operation of securities, futures or insurance business without the approval of the relevant competent departments of the state; Other illegal business practices that seriously disrupt market order. Some people think that this article is an exhaustive list of crimes, even if the pocket clause in item (4) does not explicitly list illegal labor export as the scope of illegal business. Moreover, labor is not a commodity, and labor export cannot be operated as a commodity. The author believes that the essence of the above-mentioned illegal business situation lies in violating the relevant business management system, and the objective result is to disrupt the market order. Anyone who violates these two points shall be identified as the crime of illegal business operation in accordance with the provisions of Item (4) of Article 225 of the Criminal Law. And from an economic point of view, labor is also a special commodity. In combination with this case, Article 4 of the Notice of the General Office of the State Council on the Procedures for Examination and Approval and Passports for Expatriated Laborers Going Abroad (199014 February) forwarded by the State Development Office (1990) 7/kloc-0 clearly stipulates that the defendant illegally engaged in labor export in violation of the above management regulations, which may constitute illegal business operation. As for the defendant's knowing violation of this provision, it is a legal misunderstanding and does not affect the conviction.

Thirdly, the documents of the Commercial Office of the China Embassy in Malaysia are clear. According to Malaysian laws, China is not an open country in Malaysia's general labor market (this was discovered by Lin Lin and Zhou Hui after the incident). In this case, the consulting office, the firm and Zhiyuan Company recruited laborers according to the labor export information, invitation letter, recruitment brochure, employment contract and other materials provided by Li in Malaysia, and exported laborers overseas in the form of tourist visas, without any labor export qualifications or any entrustment from any company with labor export qualifications. Although some of them have arranged jobs, their monthly salary has not reached the originally agreed standard, and their working environment is very poor. Defendant Zhou Hui, as the general manager of legally established Zhiyuan Company, participated in the operation of illegally transporting laborers to Malaysia in order to broaden the business channels of the company. In the whole operation process, he signed a contract with Zhiyuan Company in the name of Jurong Office of Zhiyuan Company to conduct capital exchanges. It should be said that the defendant Zhou Hui personally had no intention of illegal possession. However, Zhiyuan Company does not have the qualification to export foreign-related labor services, and Zhiyuan Company and defendant Zhou Hui, as general managers, are well aware of this. Therefore, Zhiyuan Company and the defendant Zhou Hui have obvious intentions to operate illegally. Objectively speaking, Zhiyuan Company participates in the business of illegally transporting labor services to Malaysia, that is, it participates in recruiting laborers to Malaysia and handling tourist passports for them. This series of acts obviously violates the spirit of Notice No.71990 issued by the State Council of the State Council, and conforms to the constitutive requirements of the crime of illegal business operation.

In addition, Linlin, the defendant, used the forged official seal of "Jingkou Jurong Overseas Company Consulting Office" to recruit foreigners, and when it was exported to Malaysia, the Jurong office of Zhiyuan Company had not been established, and Linlin was not officially employed by Zhiyuan Company. This behavior of Lin Lin belongs to the behavior of individuals engaged in illegal business activities, and Lin Lin should bear corresponding responsibilities. This recognition is more in line with the basic principle of self-responsibility in China's criminal law theory.

To sum up, according to the facts and evidence of this case, the organization of foreign labor export by the two defendants is a real business activity, which subjectively has no purpose of defrauding others' property and does not constitute a crime of fraud. However, Lin and Tuesday people illegally engaged in labor export activities without the approval of the relevant departments and knowing that their units are not qualified for labor export. This behavior not only violates the relevant laws and regulations, but also disrupts the expatriate management system in China's labor market, resulting in more serious consequences. Therefore, in this case, it should be found that Zhiyuan Company constitutes the crime of illegal business operation, and the criminal responsibilities of the defendants Lin Lin and Zhou Hui, the persons directly responsible and the persons in charge should be investigated respectively.