Lawyer

"Oh, that is to say, this kind of financial crime, on the surface, meets the requirements of the crime stipulated in the "Criminal Law" and constitutes a crime. In essence, it does not necessarily constitute a crime. We need to analyze the actual situation." Cheng Du thoughtfully muttering.

"Yes, financial crimes are no more violent crimes than homicide and robbery, and crime and innocence cannot be judged arbitrarily, so just draw a conclusion, otherwise it is easy to fall into formalism.

Legal regulations are not perfect, and sometimes legal practitioners need to think and find their roots.You should not overly believe in authoritative opinions, 'Wen Wu first', you will always have a chance, because they have no right to judge.

Let me extend it to you, the crime of establishing a financial institution without authorization as you just mentioned.

If a financial institution that has obtained the qualification to operate financial business, such as a bank or a futures brokerage company, fails to report to the competent authority in order to expand its business, expands its business outlets or sets up branches without authorization, or declares to the competent authority, but the competent authority has not yet approved Establishing a branch office without authorization to carry out business activities, on the surface, must meet the requirements of "without the approval of the relevant state competent authority", but does it actually constitute the crime of establishing a financial institution without authorization? "Du Yong asked.

"If the company has obtained the main qualification for operating financial business and has a license, legally speaking, the established branch is integrated with the company. Even if the branch has not obtained a financial license, it should not constitute the crime of establishing a financial institution without authorization. However, there may be administrative penalties.

This situation is fundamentally different from the social harm caused by the establishment of financial institutions by units or individuals without subject qualifications, and I think it should not be punished as a crime.

Master, am I right? "Cheng Du thought for a while and replied.

Du Yong smiled, it seems that this fat man has enough brains: "That's right, don't just look at the superficial imagination, but look at the essence."

"Master, in which direction should we defend this case? Do you want to plead less guilty?" Cheng Du asked suspiciously.

When Du Yong gave Cheng Du the case file before, he didn't tell him the final defense plan, but let him analyze it himself. Du Yong intended to test him and let him play freely.Now it seems that Cheng has a long way to go, but fortunately, this kid has a flexible mind and a good understanding.

"I'm going to defend Lai Zixing's innocence." Du Yong said.

……

Soon after, Lai Zixing's illegal business operation case opened.The day before the trial, Cheng Du had just obtained his trainee lawyer certificate, and it was too late to go through the entrustment procedures, so when he and Du Yong arrived at the court, they could only sit in the auditorium, not the defense bench.

After the trial began, Lai Zixing accepted all the facts of the procuratorate's allegations (it's okay not to, the evidence submitted by the prosecutors has pictures and truth), but he did not agree with the charges charged by the procuratorate, and the court investigation process ended soon.Entered the debate process.

"The facts of this case have been investigated clearly, the court investigation is over, and the court debate is now beginning. The court debate mainly revolves around the disputed facts that have not been certified by the court and how to apply the law based on the facts.

Let the prosecutor speak first. "The presiding judge said with a big face.

"Presiding judge, judge: The public prosecutor believes that the defendant Lai Zixing engaged in the pledge loan business in the name of an unregistered company without the approval of the relevant competent authority. The crime of illegal business operation stipulated in the article.

We recommend that the defendant, Lai Zixing, be sentenced to five years in prison. "The male prosecutor with a square face spoke.

"The defendant defends himself." The presiding judge continued.

"Judge, my Dafa company has not been registered, nor has it actually opened for business, nor have I forced the borrower to pay back the money. I don't think I have committed the crime of illegal business operation... I ask the court to acquit me." Lai Zixing although somewhat Nervous, but it did not affect his defense.

"The defendant's defender issued a defense opinion." The presiding judge glanced at Du Yong.

"The presiding judge, the judge: ... the defender believes that although the defendant Lai Zixing in this case provided car security loan services for others without approval and earned high interest, his behavior does not constitute the crime of illegal business operations for the following reasons:

Article 225 of the Criminal Law lists four types of illegal business operations, namely:
([-]) operating monopoly, monopoly items or other items that are restricted from trading as stipulated by laws and administrative regulations without permission;
([-]) Buying and selling import and export licenses, certificates of origin for import and export, and other business licenses or approval documents stipulated by laws and administrative regulations;
([-]) Illegally operating securities, futures, and insurance businesses without the approval of the relevant state authorities, or illegally engaging in fund payment and settlement businesses;
([-]) Other illegal business operations that seriously disrupt market order.

The behavior of the defendant in this case obviously did not meet the above two circumstances.

The fund payment and settlement business in the third situation refers to the behavior of realizing income and expenditure through the transfer of funds in the bank account, that is, the bank accepts the entrustment of the customer to collect and pay on behalf of the customer, transfers the money from the deposit account of the paying unit, and transfers it to the deposit of the receiving unit Account, in order to complete the settlement of claims and debts between economies or the transfer of funds.

Accordingly, the defendant's conduct did not fall under the third circumstance mentioned above.

In addition, the defendant engaged in the pledged loan business in the name of an unregistered company without authorization. Although it was engaged in illegal financial activities, his behavior disrupted the order of financial management, not the order of the market, so it did not fall under the fourth circumstance mentioned above.

To sum up, the behavior of the defendant in this case does not constitute the crime of illegal business operation, and the court is requested to acquit the defendant according to law.complete. After Du Yong delivered his defense opinion, he put the A4 paper in his hand on the defense stand.

"The public prosecutor can respond to the defense opinion of the defender." After a while, the presiding judge said.

"Okay, regarding the defender's defense, the public prosecutor mainly made the following points:

We believe that the behavior of the defendant belongs to other illegal business operations that disrupt market order as stipulated in Item 225 of Article [-] of the Criminal Law, for the following reasons:

225. Since item [-] of Article [-] of the "Criminal Law" includes illegally engaging in "securities, futures, insurance, and fund payment and settlement business" into the scope of punishment for the crime of illegal business operations, it shows that the legislation affirms that this behavior has violated market order. Therefore, other illegal financial activities can also be regarded as violating market order, which is in line with the original intention of the legislation.

[-]. Although the illegal financial activities directly infringe on the financial management order, in a broad sense, the financial management order is also included in the extension of the market order, and from the point of view of the specific provisions, both of them belong to the crime of undermining the order of the socialist market economy A chapter.

To sum up, the grounds for denying that the defendant's behavior constituted a crime of illegal business operations cannot be established because it disrupted the financial management order rather than the market order.complete. "The male prosecutor responded. (End of this chapter)