Lawyer

Chapter 858 Incomparably Silky Smooth
After investigation, before the incident, Gui Hanxin and Ai Shicai sold a total of 310 shares of the above-mentioned five non-listed joint-stock companies to 210 investors (originally, the five companies did not have There are so many shares, the company’s shares only increased after the shares were split), the total sales amounted to RMB 760, and the profit from it was more than RMB 310.

Practice has proved that no matter how the relevant departments promote and educate the people, or how the police warn the common people, there will always be many people who dream of getting rich overnight, desperately rushing towards the distant and illusory profiteering, and finally make a lot of money.

After the incident, the family members of the defendants approached Lawyer Liu, the legal counsel of Wanli Investment Co., Ltd., and entrusted him and his colleagues to defend the two defendants.

A year later, the case of Gui Hanxin and Ai Shicai was transferred by the procuratorate to the City Intermediate People's Court. A week ago, the Intermediate People's Court heard the case.

Defendants Gui Hanxin and Ai Shicai and their defenders have no objection to the basic facts of the indictment.

The defender believed that the three defendants did not constitute the crime of illegal business operation, and the main reasons were as follows:

First, the defendant unit and the defendant were engaged in the transfer of property rights, not the securities business;

Second, the equity of an unlisted joint stock company can be transferred according to law, and the behavior of the defendant unit and the defendant is legal;
Thirdly, after the department of industry and commerce approved the addition of the item of "Application Procedures for Property Rights Transaction", the defendant unit and the defendant had a reasonable trust in the legitimacy of the scope of business and subjectively had no criminal intent, so their actions did not constitute the crime of illegal business operation.

After the hearing, the collegial panel made a verdict in court.

The Intermediate People's Court held that the defendants Gui Hanxin and Ai Shicai went beyond the company's business scope approved and registered with the industrial and commercial authorities, and transferred the equity of non-listed joint stock companies to the public as agents without the approval of the statutory authority. , continue to operate beyond the scope on the grounds of increasing the business items of "handling property rights transaction application procedures on an agency basis", and still do not stop the business activities after the relevant administrative law enforcement department points out that it has no right to operate. The national securities market, and the circumstances of the crime are particularly serious, have constituted the crime of illegal business operation.

The two defendants established a company for the purpose of illegally operating securities business, and since the establishment of the company, illegally operating securities business has been the main activity, so they cannot be treated as unit crimes, and should be determined as natural person crimes.The public prosecution agency's accusation that this case is a unit crime is inappropriate and should be corrected.

In accordance with Article 225 (20), No. 60, Article [-], No. [-], Article [-] of the Criminal Law of the People's Republic of China, the judgment is as follows:

320. Defendant Gui Hanxin committed the crime of illegal business operation and was sentenced to five years and six months in prison and fined RMB [-] million.

320. The defendant, Ai Shicai, committed the crime of illegal business operation and was sentenced to five years and six months in prison and a fine of RMB [-] million.

[-]. The second defendant's illegally obtained stolen money shall continue to be recovered.

After the verdict was pronounced in the first instance, the two defendants appealed to the Provincial Higher Court on the grounds that the agency transfer of equity in a non-listed joint-stock company was not engaged in securities business, did not exceed the scope of operation, and had no criminal intent.At present, the second trial of the case has not yet opened.

After the verdict was pronounced in the first instance, someone recommended a lawyer in Beijing to the defendant’s family. Later, when the defendant’s family could not make up their minds, they called Mr. Gui, who was the general manager of the company’s legal affairs (Mr. Gui was somewhat related to the defendant Gui Hanxin), and let him He helped, and Mr. Gui didn't want to offend anyone, so he proposed to invite several experts to discuss the qualitative issues of the case, and then determine the candidates for the lawyer, so this case seminar was held.

"Lawyer Liu, I have something unclear and I want to ask you." A local lawyer surnamed Wang opposite Fang Yi spoke first.

"Tell me." Lawyer Liu was very polite.

"Didn't the two defendants set up Wanli Investment Co., Ltd. to start a serious investment business? Why did the court find that the two defendants established the company for illegal securities business?" Lawyer Wang asked the other four experts.

"It's like this. There is a small episode in it. When the two defendants set up the company before, there was a funder who promised to invest, but the promise was not fulfilled. The two defendants felt that it would be troublesome to set up a company without business and have to file taxes, so they applied for the company. Logged out.

Because I have just registered for less than a month and have no business, it is very convenient to cancel.

However, after the two defendants made a lot of money in the market, they found that it was profitable to handle share transfers as an agent. At this time, they went to an intermediary agency to stop the cancellation, but the cancellation process had already been completed.

No way, in order to act as an agent for stock transfer, the two re-registered Wanli Investment Co., Ltd.We only discovered this when we were reviewing papers.

In my opinion, the focus of this case is mainly on:
225. Does the agency transfer of the equity of a non-listed company fall within the scope of operating securities business as stipulated in Item ([-]) of Article [-] of the Criminal Law?

[-]. Did the actions of the two defendants constitute the crime of illegal business operation?
This time I invite all colleagues to participate in the seminar, and I also want to discuss these two points and listen to your suggestions. "Lawyer Liu said, looking at Mr. Gui, who nodded to express his approval of what he said.

Fang Yi's face was expressionless, but his heart was active: the materials provided before were flawed, this was deliberately done by Lawyer Liu in order to confuse the public, or the paralegal's careless mistake!This kind of thing came up from the very beginning, and this seminar was... a bit interesting.

After listening to Lawyer Liu's words, everyone started to use their brains. In fact, everyone had already realized the focus of this case summarized by Lawyer Liu.

"According to Article 225 ([-]) of the Criminal Law, violating state regulations, illegally operating securities business without the approval of relevant state authorities, disrupting market order, and the circumstances are serious, constitute the crime of illegal business operation.

Therefore, for the defendant in this case, the key to the characterization of his behavior is whether the act of transferring the equity of a non-listed company as an agent can be identified as "operating securities business".

If it can be determined in this way, it will meet the prerequisites for determining that the defendant has committed the crime of illegal business operation according to the above-mentioned "Criminal Law"; otherwise, this provision cannot be used as the basis for the judgment.

The securities business... Attorney Zhao is the best at it. What do you think, Lawyer Zhao? "What the old professor said is very reasonable, but it is useless at all. It is a typical principle that has no practical effect. It is very suitable for a conference, but at this time it gives people a feeling of fooling things.

However, the cleverness of the old professor lies in the fact that he promoted Lawyer Zhao very smoothly.The lawyer Zhao mentioned by the old professor is the male lawyer in his 50s from Beijing.

(End of this chapter)