Lawyer

Chapter 860
"Well, this is for listed companies, what about unlisted companies? Is splitting and transfer allowed?" Lawyer Zhao felt that Fang Yi was just repeating the script, and he might not really understand it.

"The shares of non-listed companies are not allowed to be split and transferred. Although there are no legal regulations, there are relevant regulations in the regulations of relevant departments. Moreover, the regulatory authorities have not allowed the split transfer of non-listed joint stock companies. shares.

On March 25, [-], the General Office of the State Council forwarded the "Scheduling and Rectification of Illegal Over-the-Counter Stock Trading Plan" issued by the China Securities Regulatory Commission, requesting that the subdivision transactions and warrant transactions conducted by property rights exchanges established without the approval of the State Council be regarded as off-exchange transactions. Illegal stock trading activities should be thoroughly cleaned up.

Since then, the China Securities Regulatory Commission has made unwritten "three nos" regulations on the local property rights trading market: "no dismantling, no continuous, no standardization".

In December 2006, the General Office of the State Council issued the "Notice on Strictly Cracking down on Issues Concerning Illegal Issuance of Stocks and Illegal Operation of Securities Business".

In January 2008, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the China Securities Regulatory Commission jointly issued the "Notice on Relevant Issues Concerning Rectification of Illegal Securities Activities".

Both of the above two notices require cracking down on various securities illegal and criminal activities, including illegal agency transfer of stocks of unlisted companies.

Therefore, splitting and transferring the shares of non-listed companies is an illegal method of property rights transactions.

Lawyer Zhao, you often do this kind of business, do you know other relevant regulations, are there any latest regulations?I can also learn a thing or two when doing business in the future. "Fang Yi asked very politely.

Lawyer Zhao did not expect Fang Yi to kick the ball back. In fact, the rules he knew were the same, and there was nothing new.He also followed his colleagues to do two similar cases and came here to show off. In fact, he has not studied this kind of issue in depth, which is a bit of a nonsense.

Seeing everyone looking at him, Lawyer Zhao laughed awkwardly, cleared his throat: "Lawyer Fang knows everything.

Well, I do not deny that the defendant's behavior has the nature of property rights transactions to a certain extent, but this nature does not affect the determination that his behavior is a disguised securities business.Therefore, my opinion is that the defendant in this case constituted the crime of illegal business operation. "He immediately changed the topic, showing a confident look.

"Lawyer Fang, what do you think?" Mr. Gui asked.

He is quite satisfied with Lawyer Fang's answer just now. To be honest, Mr. Gui doesn't like Lawyer Zhao very much. The reason is that Lawyer Zhao is too arrogant.

Humility benefits and damages, it is applicable everywhere, sincerity is not bullying!
"Well, I agree with Lawyer Zhao's opinion." Although Fang Yi was a bit annoyed by Lawyer Zhao, this guy's judgment was consistent with his. Fang Yi didn't want this negative emotion to affect his professional judgment.

"Oh? What's the reason?" Mr. Gui asked.

Fang Yi glanced at the reasons he summed up before: "I think that according to the provisions of Article 225 of the Criminal Law, only serious illegal business operations can constitute the crime of illegal business operations.

As for the determination of "serious circumstances", in judicial practice, it should be determined mainly based on the amount of illegal business and illegal profits, and comprehensively consider the circumstances of the case.

In my opinion, in this case, the defendant's behavior not only met the condition of 'serious circumstances', but also fell into the category of 'particularly serious circumstances', for the following reasons:
[-]. The company established by the defendant is an investment company, which is not qualified to operate securities, nor is it qualified to operate property rights transactions.

According to the "Property Rights Transaction Rules", a property rights transaction brokerage institution refers to an intermediary agency that has the qualifications for property rights transactions and accepts the entrustment of enterprises to act as an agent for property rights transactions, and the personnel engaged in property rights transactions must have corresponding brokerage qualifications.

In this case, the company operated by the defendant neither obtained a license nor qualified as a brokerage institution for property rights transactions, so it obviously operated beyond its scope.

After the Municipal Administration for Industry and Commerce ordered the company to make corrections and imposed a fine of 1 yuan on the grounds that the company operated beyond its scope, the company did not rectify related businesses.

On the contrary, the company has increased the business item of 'property transaction application procedures' and continues to sell stocks of non-listed companies as an agent.

However, "handling property rights transaction application procedures" refers to accepting the entrustment of the property right owner and submitting the property right transaction application service activity to the property right transaction institution in the name of the property right owner, excluding directly engaging in property right transaction activities.

Therefore, after the company added the business item of "handling property rights transaction application procedures", it could not change the fact that it operated beyond its scope. The investment company operated by the defendant continued to sell shares of unlisted companies to the public after being punished by the industrial and commercial department It is obviously a malicious out-of-scope operation.

[-]. The defendant's operating amount and profit amount are particularly huge.

The defendant sold the stocks of non-listed companies to the public, with a total sales amount of RMB 760, and a profit of more than RMB 310.

Although there is currently no judicial interpretation stipulating the specific amount standards for "serious circumstances" and "particularly serious circumstances" in illegally operating securities business, courts generally refer to relevant judicial interpretations when adjudicating.

For example, Article 11 and Article 15 of the Interpretation of the Supreme People's Court Concerning Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Publications stipulates that publishing, printing, duplicating, and distributing other serious harm to society other than those stipulated in Articles 30 to 5 of this Interpretation Illegal publications that disrupt order and disrupt market order, if the amount of personal business is more than 10 to [-] yuan, or the amount of illegal income is more than [-] to [-] yuan, it belongs to "especially serious circumstances."

[-]. The behavior of the defendant has disrupted the order of the national securities market, which is likely to cause mass incidents and is extremely harmful to society.

The company run by the defendant deceived more than 300 investors into buying shares of unlisted joint-stock companies in the past year or so on the grounds that the shares could be listed in a short period of time and obtain high returns on original shares. The above is the illegal establishment of an 'over-the-counter' market outside the supervision, which seriously disrupts the order of the national securities market.

Moreover, once the defendant fails to fulfill his promise and investors cannot make profits or even cause heavy losses, mass incidents are likely to occur and affect local social stability.

To sum up, the defendant in this case went beyond the business scope of the company approved and registered by the industrial and commercial authority, and transferred the equity of an unlisted joint-stock company to the public as an agent without the approval of the statutory authority.

However, in view of the fact that the purpose of the defendant’s establishment of the company is to engage in illegal securities business, and the main activity of the company after establishment is to commit the crime, according to the provisions of Article [-] of the Interpretation of the Supreme People’s Court on Issues Concerning the Specific Application of Law in the Trial of Unit Crime Cases , should not be treated as a unit crime, so I think there is no problem with the characterization of this case by the court of first instance.

As for the sentencing, if there is no statutory mitigating circumstance, I personally think that the second trial is likely to uphold the original sentence. "Fang Yi looked at Mr. Gui and said.

(End of this chapter)