Is it necessary to deduct the cost of illegal income from buying and selling?
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Lawyer Yang Lin Meng Yan
Shanghai Dehe Hantong Law Firm has been practicing for 5 years.
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Legal analysis: illegal income should be deducted from the cost. Property directly or indirectly produced or obtained as a result of a crime shall be recognized as illegal income.
Legal basis: Measures for the Determination of Illegal Income in Administrative Punishment Cases by the Administrative Department for Industry and Commerce Article 2 The basic principle for the administrative department for industry and commerce to determine illegal income is that all the income obtained by a party illegally producing or selling goods or providing services, after deducting the appropriate and reasonable expenses directly used by the party for business activities, is illegal income. Unless there are special provisions in these Measures.
April 2022 Answer-65438+April.
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Is it necessary to deduct the cost of illegal income from buying and selling?
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Is it necessary to deduct the cost of illegal income from buying and selling?
Legal analysis: illegal income should be deducted from the cost. Property directly or indirectly produced or obtained as a result of a crime shall be recognized as illegal income. If the illegal income has been partially or completely converted into other property, the converted and converted property shall be regarded as illegal income. Legal basis: Article 299 of the Criminal Procedure Law of People's Republic of China (PRC), the application for confiscation of illegal income shall be tried by the collegial panel of the intermediate people's court in the place where the crime was committed or where the criminal suspect or defendant lived. After accepting the application for confiscation of illegal income, the people's court shall make an announcement. The announcement period is six months. The criminal suspect, the close relatives of the defendant and other interested parties have the right to apply to participate in the litigation, or they may entrust an agent ad litem to participate in the litigation. The people's court shall hear the application for confiscation of illegal income after the expiration of the announcement. If an interested party participates in the litigation, the people's court shall hold a hearing.
Lawyer Lu Lin Kuang Jiaxin
Practice for 4 years
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Is the illegal income deducted from the cost?
Whether the illegal income is deducted from the cost depends on the specific situation. Confiscation of property is a kind of property punishment, which refers to the penalty method of forcibly nationalizing part or all of a criminal's personal property without compensation. It refers to the nationalization of all or part of the personal property, cash, creditor's rights and other property of criminals, and cannot involve the property of people other than criminals; If all the property is confiscated, the necessary living expenses should also be reserved for the criminal himself, his dependents and children. The legitimate debts of the criminal before the confiscation of property can be returned upon the application of the creditor; A person sentenced to confiscation of property may not apply to the people's court for discretionary relief for any reason. When sentenced to confiscation of property, the property owned or deserved by the criminal's family members shall not be confiscated. The so-called property owned by family members refers to the property owned by family members, such as the clothes worn by family members themselves and the property obtained from personal labor. Family members should have property, which means the family and all the property that should belong to family members. The property owned by criminals and others, the part owned by others, shall not be confiscated. Legal basis: Article 59 of the Criminal Law of People's Republic of China (PRC) confiscates part or all of the property owned by criminals. If all property is confiscated, necessary living expenses shall be reserved for criminals and their families. When sentenced to confiscation of property, the property owned or deserved by the criminal's family members shall not be confiscated. Article 60 of the Criminal Law of People's Republic of China (PRC) * * * If the legal debts incurred by criminals before the confiscation of property need to be repaid with the confiscated property, they shall be repaid at the request of creditors. Provisions of the Supreme People's Procuratorate and the Supreme People's Court on Several Issues Concerning the Procedure for Confiscating the Illegal Income of Criminal Suspects and Defendants in Handling Death Cases Caused by Escape Article 6 The property directly or indirectly generated or obtained by committing a crime shall be recognized as the illegal income as stipulated in the first paragraph of Article 280 of the Criminal Procedure Law.
Qiao Guangyuan lawyer
Practiced for 9 years.
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Is the illegal income deducted from the cost?
One. Whether the illegal income is deducted from the cost 1. Illegal behavior belongs to general illegal business behavior, and the illegal income should be deducted from the cost. The details are as follows: (1) The counterpart is not engaged in illegal business activities, but is simply illegal or infringing; (2) The products operated by the other party are illegal products and cannot be used and benefited; (3) According to the law, it can be inferred that the calculation of illegal income has not deducted the cost. 2. Legal basis: Article 6 of the Provisions of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Procedure for Confiscating the Illegal Income of Criminal Suspects and Defendants in Handling Death Cases Caused by Escaping shall be deemed as "illegal income" as stipulated in the first paragraph of Article 280 of the Criminal Procedure Law. If the illegal income has been partially or completely converted into other property, the converted and converted property shall be regarded as "illegal income" as stipulated in the preceding paragraph. The income from the transformation of illegal income, the transformed property, or the income from which the corresponding part of illegal income has been mixed with illegal income shall be recognized as "illegal income" as stipulated in the first paragraph. Two. How is the illegal income determined? The contents of the determination of illegal income are as follows: 1. In order to standardize and guarantee the administrative departments for industry and commerce to exercise their functions and powers in accordance with the law, implement administrative penalties fairly and effectively, and protect the legitimate rights and interests of citizens, legal persons and other organizations, these Measures are formulated in accordance with the provisions of relevant laws and regulations; 2. The basic principle for the administrative department for industry and commerce to identify illegal income is that all the income obtained by the parties from illegally producing or selling goods or providing services, after deducting the appropriate and reasonable expenses directly used by the parties for business activities, is illegal income. Unless there are special provisions in these Measures; 3. The illegal income of illegally produced commodities shall be calculated by deducting the purchase price of raw materials from the total sales income of illegally produced commodities; 4. The illegal income from illegal sales of commodities refers to the calculation of deducting the purchase price of the sold commodities from the sales income of illegal sales of commodities; 5. The illegal income from illegally providing services shall be calculated by deducting the purchase price of the goods used in the services from the total income from illegally providing services; 6, in violation of laws and regulations, to provide convenient conditions for illegal acts, illegal income according to the total income of the parties; 7 illegal contracting, the contractor provides materials, in accordance with the relevant provisions of the calculation of illegal income; If the customized person provides materials, the illegal income shall be calculated in accordance with Article 5 of these Measures; 8. In illegal pyramid selling activities, the illegal income from soliciting customers and defrauding entry fees shall be calculated according to the total income of the parties; The illegal income from paid pyramid selling and sales of self-produced goods by the team shall be calculated by deducting the purchase price of raw materials for producing goods from the income from illegal sales of goods; The sales of non-self-produced goods shall be calculated by subtracting the income from illegal sales of goods from the purchase price of the goods; 9, in the identification of illegal income, the parties should be deducted before the administrative department for Industry and commerce in accordance with laws, regulations and the provisions of the people's governments at or above the provincial level; 10. If there are other provisions on the determination of "illegal income" and "illegal income" in laws and administrative regulations, those provisions shall prevail. If there are other provisions on the determination of "illegal income" and "illegal income" in government regulations, such provisions can be followed.
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Lawyer ding
Practiced for seven years.
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Whether to deduct expenses from the confiscation of illegal income
Legal analysis: It is not clear whether the confiscation and recovery of illegal income are deducted from the cost. First, the counterpart is not engaged in illegal business activities, but is simply illegal or infringing. For example, if a company manager takes advantage of his power to accept bribes or embezzle company property, his illegal income shall be confiscated and ordered to return the company property according to the provisions of the Company Law. Second, the products operated by the other party are illegal products and cannot be used and benefited. For example, if a printing factory illegally prints trademarks of tobacco products, according to the provisions of the Tobacco Monopoly Law, the administrative department for industry and commerce shall destroy the printed trademarks, confiscate their illegal income and impose a fine. Third, according to the law, we can deduce the meaning of calculating illegal income without deducting costs. For example, those who purchase printing equipment without approval and undertake printing business without permission shall be banned by administrative organs according to the Regulations on the Administration of Publishing, and publications, main special tools and equipment engaged in illegal activities and illegal income shall be confiscated, and a fine of less than the illegal income shall be imposed. Legal basis: Article 64 of the Criminal Law of People's Republic of China (PRC) stipulates that the property illegally obtained by criminals shall be recovered or ordered to make restitution; The lawful property of the victim shall be returned in time; Contraband and personal articles used in crimes shall be confiscated. Confiscated property and fines shall be turned over to the state treasury and shall not be misappropriated or disposed of by themselves.
Lawyer Hu
Practiced for 9 years.
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Is illegal profit deducted from the cost?
Legal analysis: According to Chinese laws, if it is suspected of illegal business operation, the illegal income should not be deducted from the cost. Legal basis: Article 2 of the Administrative Coercion Law of the People's Republic of China Administrative Coercion mentioned in this Law includes administrative coercive measures and administrative coercive measures. Administrative coercive measures refer to the acts that administrative organs temporarily restrict citizens' personal freedom or temporarily control the property of citizens, legal persons or other organizations in the process of administrative management in order to stop illegal acts, prevent evidence from being damaged, avoid harm and control the expansion of danger. Administrative enforcement refers to the act of an administrative organ or an administrative organ applying to a people's court to enforce the obligations of a citizen, legal person or other organization that fails to perform an administrative decision. Twelfth ways of administrative enforcement: (1) additional fines or late fees; (2) Transfer of deposits and remittances; (three) auction or disposal of places, facilities or property sealed up or detained according to law; (4) removing obstacles and restoring to the original state; (5) Performing for the sake of performance; (6) Other enforcement methods. Nineteenth emergency, the need to implement administrative compulsory measures on the spot, the administrative law enforcement personnel shall report to the person in charge of the administrative organ within 24 hours, and go through the approval procedures. If the person in charge of the administrative organ thinks that administrative compulsory measures should not be taken, it shall be lifted immediately.
Wu huanhuan lawyer
Practice for 4 years
Is the illegal income from crime deducted from the cost?
Legal analysis: Whether the illegal income is deducted from the cost depends on the specific situation. Property directly or indirectly produced or obtained by a crime shall be recognized as illegal income as stipulated in the first paragraph of Article 280 of the Criminal Procedure Law. Legal basis: Article 6 of the Provisions of the Supreme People's Procuratorate and the Supreme People's Court on Several Issues Concerning the Application of Confiscation Procedures to the Illegal Income of Criminal Suspects and Defendants in Cases of Escape and Death, all the property directly or indirectly generated or obtained as a result of the crime shall be recognized as "illegal income" as stipulated in the first paragraph of Article 280 of the Criminal Procedure Law. If the illegal income has been partially or completely converted into other property, the converted and converted property shall be regarded as "illegal income" as stipulated in the preceding paragraph. The income from the transformation of illegal income, the transformed property, or the income from which the corresponding part of illegal income has been mixed with illegal income shall be regarded as the "illegal income" as stipulated in the first paragraph. Measures for the determination of illegal income in administrative punishment cases by administrative organs for industry and commerce Article 2 The basic principle for the determination of illegal income by administrative organs for industry and commerce is that all the income obtained by a party illegally producing or selling goods or providing services, after deducting the appropriate and reasonable expenses directly used by the party for business activities, is illegal income.
Zhao Shuyuan, Guangxi contract lawyer
Internship for 2 years
Does it cost to confiscate and recover illegal income?
Legal analysis: illegal activities belong to general illegal business activities, and their illegal income should be deducted from the cost. Confiscation of illegal income is a form of administrative punishment, which is mainly applicable to the situation that the actor obtains material benefits due to illegal acts. Legal basis: Article 59 of the Civil Code of People's Republic of China (PRC) confiscates some or all personal property of criminals. If all property is confiscated, necessary living expenses shall be reserved for criminals and their families. When sentenced to confiscation of property, the property owned or deserved by the criminal's family members shall not be confiscated.
Li Yufang, Wuhan divorce lawyer.
Practiced for seven years.
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Should the crime of illegal business be deducted from the cost?
Legal analysis: need. 1. Whoever illegally deals in salt of more than 20 tons but less than 30 tons shall be sentenced to criminal detention or fined. Anyone who illegally deals in 30 tons of salt shall be sentenced to 1 year imprisonment, and the term of imprisonment shall be increased by 1 year for every additional 6 tons. 2. If the amount of illegal telecommunication business is less than 6.5438+0.5 million yuan, a fine of more than 500,000 yuan but less than 2 million yuan will be imposed, and if the criminal detention is 0,000 yuan, a fixed-term imprisonment of not more than 6 months will be imposed, and the sentence will be increased by 1 month for each additional 50,000 yuan. Legal basis: Article 225 of the Criminal Law of People's Republic of China (PRC), in violation of state regulations, commits one of the following illegal business operations and disrupts market order. If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than one time but not more than five times his illegal income. If the circumstances are especially serious, a fine of not less than one time but not more than five times the illegal income shall be imposed or property shall be confiscated: (1) dealing in exclusive commodities or other commodities with restricted trading 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; (three) without the approval of the relevant state departments, illegally engaged in securities, futures, insurance business, or illegally engaged in fund payment and settlement business. (4) Seriously disrupting the market.
Nanjing lawyer Zhang Lijun.
Practice 1 1 year
Does it cost to confiscate and recover illegal income?
Illegal behavior belongs to general illegal business behavior, and its illegal income should be deducted from the cost. Confiscation of illegal income is a form of administrative punishment, which is mainly applicable to the situation that the actor obtains material benefits due to illegal acts. 1. Can administrative punishment be imposed after the alleged crime of environmental pollution is not prosecuted? If there is an administrative violation, administrative punishment may be investigated after the suspected crime is not prosecuted. According to Article 8 of the Administrative Punishment Law of the People's Republic of China, there are seven types of administrative punishment: 1 and warning. It is the state's condemnation and warning to the administrative violator, and the state's formal negative evaluation of the violator's illegal behavior. From the point of view of the country, warning is the official expression of the state administrative organs, which will have an adverse impact on the other party and should be included in the scope of legal constraints; For the punished person, the sanction function of warning is mainly to form psychological pressure and unfavorable social public opinion environment for the parties. The important purpose of applying warning punishment is to make the punished person realize the illegality of his behavior and the harm to society, correct the illegal behavior and stop breaking the law. 2. all right. It is a kind of sanction that the administrative organ forcibly collects a certain amount of money from the administrative violator and deprives him of certain property rights. Applicable to sanctions against various administrative violations. 3. Confiscation of illegal income and property. Confiscation of illegal income is a sanction for administrative organs to nationalize the property possessed by administrative offenders and obtained through illegal ways and methods; Confiscation of illegal property is a kind of sanction for administrative organs to nationalize the property illegally occupied by administrative offenders. 4, ordered to suspend production and business. It is a kind of sanction that the administrative organ forces the administrative violator to temporarily or permanently stop production, operation and other business activities. 5. Suspend or revoke the license, suspend or revoke the license. The administrative organ temporarily or permanently revokes the document that the state allows the administrative violator to enjoy certain rights or engage in certain activities, so that he loses his rights and activities. 6. Administrative detention. That is, the public security organs deprive people of their personal freedom in a short time as a compulsory punishment measure. 7. Other administrative penalties prescribed by laws and administrative regulations.
Lawyer Tang
Practiced for seven years.
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