Lawyer's character

"Oh, that is to say, this type of financial crime, on the surface, meets the elements of the crime stipulated in the Criminal Law and constitutes a crime. In fact, it may not really constitute a crime. The actual situation must be analyzed." Cheng Du was thoughtful. murmured.

"Yes, financial crimes are no different from violent crimes such as murder and robbery. You cannot make arbitrary conclusions about crime or non-crime, otherwise it will be easy to fall into formalism.

Legal provisions are not perfect, and sometimes legal practitioners need to think and find the root cause. Don’t believe too much in the authoritative opinions, “Wen Wu is the first”, you always have a chance, because they have no right to judge.

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

If financial institutions that have obtained the qualification to operate financial business entities, such as banks, futures brokerage companies, etc., in order to expand their business, expand their business outlets or add branches without reporting it to the competent authority, or they have not approved it despite reporting it to the competent authority. The unauthorized establishment of a branch to carry out business activities certainly meets the requirements of 'without the approval of the relevant national competent authority', but does it actually constitute the crime of unauthorized establishment of a financial institution? " Du Yong asked.

“If the company has obtained the qualification to operate financial business and has a license, legally speaking, the branch established is integrated with the company. Even if the branch does not obtain a financial license, it should not constitute the crime of establishing a financial institution without authorization. However, administrative penalties may be imposed.

This situation is essentially different from the social harm caused by entities or individuals without subject qualifications establishing financial institutions without authorization. I think this crime should not be punished.

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

Du Yong smiled, it seemed that the fat man had enough brains: "That's right, you can't just look at the surface and imagine, but look at the essence."

"Master, where should we defend this case? Should we defend the case as a minor crime?" Cheng Du asked doubtfully.

When Du Yong gave Cheng Du the case file before, he did not tell him the final defense plan, but just asked him to analyze it on his own. Du Yong intended to test him and let him express himself freely. Now it seems that Cheng Duoyi still has a long way to go, but fortunately, this kid has a flexible mind and good understanding.

"I am going to defend Lai Zixing not guilty," Du Yong said.

…

Soon after, Lai Zixing's illegal business case came to court. Cheng Du only got his trainee lawyer certificate the day before the trial and did not have time to go through the entrustment procedures. So when he and Du Yong arrived at the court, they could only sit in the auditorium and not the defense table.

After the trial began, Lai Zixing admitted all the facts charged by the procuratorate (it was okay not to admit it, the evidence submitted by the prosecutor had pictures and truth), but he did not admit the charges charged by the procuratorate, and the court investigation process ended quickly. Entered the debate process.

“The facts of this case have been clearly investigated, the court investigation has ended, and now the court debate has begun. The court debate mainly revolves around the disputed facts that have not been certified by the court and the issue of how the law should be applied based on the facts.

Let me first give the floor to the prosecutor. "The presiding judge said with a calm face.

"Presiding Judge, Judge: The 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 authorities. His behavior seriously disrupted the market order, so his behavior falls under Article 1 of the Criminal Law. The crime of illegal business operations stipulated in Article 225.

We recommend that defendant Lai Zixing be sentenced to five years in prison. "The male prosecutor with a big face said.

"The defendant defended himself," the presiding judge continued.

"Judge, my Dafa company has not been registered and has not actually started business. I have not forced borrowers to pay back money. I think I do not commit the crime of illegal business... I ask the court to find me not guilty." Although Lai Zixing is a little bit He was nervous, but it did not prevent him from expressing his defense opinions.

"The defendant's defender expressed his defense opinion." The presiding judge glanced at Du Yong.

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

Article 225 of the Criminal Law lists four types of illegal business activities, namely:

(1) Operating franchised or monopolized items or other restricted items as prescribed 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 in laws and administrative regulations;

(3) Illegally operating securities, futures, and insurance businesses without approval from the relevant state authorities, or illegally engaging in fund payment and settlement business;

(4) Other illegal business activities that seriously disrupt market order.

The behavior of the defendant in this case obviously does not meet the first two situations mentioned above.

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

Accordingly, the defendant's behavior does not fall within the third scenario mentioned above.

In addition, the defendant engaged in the pledge loan business in the name of an unregistered company without authorization. Although it was engaged in illegal financial activities, his behavior disrupted the financial management order rather than the market order, so it did not fall within the fourth provision above.

To sum up, the behavior of the defendant in this case does not constitute the crime of illegal business operations. The court is requested to acquit the defendant in accordance with the law. complete. "After Du Yong finished expressing his defense opinions, he placed the A4 paper in his hand on the defense table.

"The prosecutor can respond to the defender's defense opinions." After a moment, the presiding judge said.

"Okay, in response to the defender's defense, the prosecutor mainly expressed the following views:

We believe that the defendant’s behavior falls within other illegal business behaviors that disrupt market order as stipulated in Article 225, Item 4 of the Criminal Law, for the following reasons:

1. Since Article 225, Paragraph 3 of the Criminal Law includes illegally engaging in “operating securities, futures, insurance and fund payment and settlement businesses” within the scope of punishment for the crime of illegal business operations, it shows that the legislation affirms that this behavior infringes on the market. From the standpoint of order, other illegal financial activities can also be regarded as infringing on market order, which is in line with the original intention of the legislation.

2. Although illegal financial activities directly infringe 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 perspective of the separate provisions, both are crimes that undermine the socialist market economic order. A chapter.

To sum up, the reason that the defendant's behavior disrupted the financial management order rather than the market order and therefore denied that it constituted the crime of illegal business cannot be established. complete. "The male prosecutor responded. (End of Chapter)