After a while, the three male judges of the collegial panel walked into the courtroom, and the prosecutor Zhou and his colleagues who had seen him before in the public prosecution bench were whispering.

After completing the previous procedures, after the court checked the defendant's basic information, the presiding judge first asked the bailiff to take Xiang Dong out of the courtroom for trial. When there are multiple defendants in the same criminal case, the court investigation needs to be conducted separately.

The presiding judge said: "Now conduct a court investigation and ask the prosecutor to read out the indictment to Yaqiang." ”

“…… We believe that the defendant's transfer of Internet cafes with business licenses, network culture business licenses, and other legal licenses to Yaqiang and Xiangdong, but without going through the formalities for changing the registration, is in essence buying and selling documents of state organs and concealing illegal purposes with the help of legal forms.

Defendant Xiang Yaqiang's conduct violated the provisions of Article 280 of the Criminal Law of the People's Republic of China, the facts of the crime are clear, the evidence is credible and sufficient, and he should be investigated for criminal responsibility for the crime of buying and selling documents of state organs. The court is requested to adjudicate in accordance with the law. Complete! Inspector Zhou said.

"Defendant Xiang Yaqiang, did you hear clearly the indictment read out by the prosecutor just now? Do you dispute the charges and facts charged against you in the indictment? The presiding judge asked.

"I have no objection to the facts of the case, I have objections to the charges, and the relationship between me and Xiang Dong is a normal business relationship, and there is no crime." Xiang Yaqiang said.

Subsequently, with the permission of the presiding judge, Prosecutor Zhou asked the defendant Xiang Yaqiang several factual questions about the case, which were actually nothing more than how the transfer was made, how much money was collected, and whether there were any formalities.

As a defender, Mr. Zhao also raised a few innocuous questions.

In the subsequent presentation of evidence and cross-examination, the defendant and the defender had no objection to the evidence, and both Xiang Yaqiang recognized the factual evidence of the transfer of the Internet café.

During this period, as Xiang Dong's defender, the only thing Fang Yi had to do was to listen to what Xiang Yaqiang had to say, and whether there was anything unfavorable to Xiang Dong.

Fortunately, today is a trial, and Xiang's family is listening below, and what Xiang Yaqiang said is not different from what he understood in front of him.

The presiding judge asked the bailiff to take Xiang Yaqiang out of the courtroom to await trial, and Xiang Dong into the courtroom. Inspector Zhou read out the indictment again.

“…… The defendant Xiangdong obtained the relevant documents of Internet cafes through buying and selling, in essence, using legal forms to cover up illegal purposes and buying and selling state organ certificates, and his conduct was illegal and constituted the crime of buying and selling state organ certificates.

Therefore, the defendant Xiang Dong's business activities were unauthorized Internet access service business activities without obtaining an Internet culture business license, and constituted the crime of illegal business operation.

We believe that the defendant Xiang Dong's conduct violated the provisions of Articles 225 and 280 of the Criminal Law of the People's Republic of China respectively, the facts of the crime are clear, the evidence is credible and sufficient, and he should be investigated for criminal responsibility for the crime of illegal business operation and the crime of buying and selling documents of state organs. The court is requested to adjudicate in accordance with the law. Complete. Inspector Zhou said.

"Defendant Xiang Dong, did you hear clearly the indictment read out by the prosecutor just now? Do you have any objection to the charges and facts of the crime charged in the indictment? The presiding judge asked.

"There are objections. The operation of the Internet café after I signed the Internet café transfer contract with Yaqiang is a normal operation and does not constitute the crime of illegal business operation or the crime of buying and selling documents of state organs. "To the east.

He himself was very puzzled by the charges charged by the procuratorate, and when he went to the detention center for the last time before the trial, Fang Yi told him that he would defend his innocence, which greatly boosted his confidence. That's why he firmly believes that he is innocent.

"The prosecutor may interrogate the defendant Xiang Dong about the facts of the crime charged in the indictment." The presiding judge said.

"Okay, Presiding Judge." Inspector Zhou took out the question of the question prepared in advance: "Defendant Xiangdong, how did you know that Xiang Yaqiang's Internet café was going to be transferred?" ”

"Xiang Yaqiang is my second uncle, he didn't negotiate the transfer of the Internet café with others before, and then he found me and asked me if I wanted an Internet café. I thought his internet café was good, so I agreed. "To the east.

"Xiang Yaqiang transferred the Internet café to you, how much did you set the price? Is there any payment? Inspector Zhou asked.

"100,000 yuan, I will give it to him after we sign the agreement, and the bank will transfer it." To the east.

"After you transferred, did you make any changes?" Inspector Zhou asked.

"No, Xiang Yaqiang told me to operate first, anyway, the license has not expired, and it will be too late to change it when it expires. I thought that my second uncle Xiang Yaqiang would not cheat me, and it was very troublesome to go through the procedures to make changes, so I didn't make changes. "To the east.

"After the transfer of the Internet café, who is running it?" Inspector Zhou asked.

"I'm in charge." To the east.

"Presiding Judge, we're done." Inspector Zhou said.

"Does the defendant Xiang Dong's defender need to ask the defendant questions?" The presiding judge asked.

"Questions." After speaking, Fang Yi looked at Xiang Dong: "Defendant Xiang Dong, what is the real purpose of your Internet café?" ”

"The real purpose is to buy and operate the Kyushu Internet café from Yaqiang, and the investor will be changed to myself and replaced by Yaqiang. To put it bluntly, I am the shareholder and actual controller of the Internet café. "To the east.

"Have you ever run a business before?" Fang Yi asked.

"I have run a donkey meat roast shop in BD City, and I run the business procedures myself, so I know a little bit about the company." To the east.

The purpose of Fang Yi's questioning was very simple, that is, to tell the judge through Xiang Dong's mouth that the defendant Xiang Dong was buying a company and changing investors, rather than using money to buy the actual management rights of the Internet café. This is exactly the same as what Xiang Yaqiang said before.

"Presiding judge, the defender has finished asking." Fang Yi said.

In the next part of the presentation of evidence and cross-examination, Xiang Dong and the defender Fang Yi cross-examined the evidence provided by the prosecutor one by one, and like Xiang Yaqiang, they all accepted the evidence on the facts of the case.

After the court investigation was completed, the presiding judge asked the bailiff to bring Xiang Yaqiang into the courtroom.

"The facts of this case have been investigated, the court investigation has been completed, and the court arguments are now begining. Court debates revolve around disputed facts that have not been certified by the court and how the law should be applied based on the facts.

The prosecutor will speak first. The presiding judge said.

Prosecutor Zhou repeated the contents of the previous indictment, holding that the defendant Xiang Yaqiang sold the Internet café he operated to the defendant Xiangdong together with the relevant documents, and both of them constituted the crime of buying and selling documents of state organs; Xiang Dong's business activities after obtaining relevant certificates for Internet cafes through buying and selling are regarded as engaging in Internet access service business activities without obtaining an Internet culture business license, which constitutes the crime of illegal business operation.

Next, the defendant defended himself, Xiang Yaqiang and Xiang Dong did not believe that their actions constituted a crime, it was a normal business transfer, and asked the court to rule not guilty in accordance with the law.

"Next, the defendant's defender will express his defense opinions, and Xiang Yaqiang's defender will first express his defense opinions." The presiding judge said.

"Presiding judge and judge: The defender believes that the Internet café transfer agreement signed between the two defendants in this case is an overall transfer, and there is no subjective intention to buy and sell state organ certificates to Yaqiang, which does not constitute the crime of buying and selling state organ certificates. The court is requested to acquit the defendant Xiang Yaqiang in accordance with the law. Complete! Lawyer Zhao said.

"Next, the defendant will give his defense opinions to Dong's defender." The presiding judge said.

"Presiding judge and judge: The defender believes that in this case, the defendant transferred the 'Kyushu' Internet café invested by Yaqiang to Xiangdong, another defendant in this case, and issued the business license, Internet culture business license, Internet access service business premises security audit certificate, public gathering place put into use, pre-business fire safety inspection certificate, etc. The behavior of the two did not constitute the crime of buying and selling documents of state organs, and Xiang Dong's behavior did not constitute the crime of illegal business operation, for the following reasons:

1. The above-mentioned one license and three certificates belong to the certificates issued by the state authorities to the 'Kyushu' Internet café, and as a new investor after the transfer of the Kyushu Internet café to the east, the relevant licenses of the Internet café are not revoked or invalid, and are still valid.

According to the case file materials provided by the prosecutor, the Kyushu Internet Café is an unincorporated private enterprise invested in Yaqiang and is a sole proprietorship.

According to Article 15 of the Law of the People's Republic of China on Sole Proprietorship Enterprises, if there is any change in the registration items during the existence of a sole proprietorship enterprise, it shall apply to the registration authority for the change of registration within 15 days from the date of the change.

According to Article 13 of the Administrative Measures for the Registration of Sole Proprietorship Enterprises, a sole proprietorship enterprise shall apply to the original registration authority for change of registration within 15 days from the date of occurrence of the change of the name and residence, the amount of capital contribution and the method of capital contribution of the investor.

At the same time, Article 17 of the Measures stipulates that if the investor of a sole proprietorship enterprise changes due to transfer or inheritance, the sole proprietorship enterprise may submit an assignment agreement or legal inheritance document to the original registration authority to apply for change of registration.

(The Administrative Measures for the Registration of Sole Proprietorship Enterprises have been repealed on 1 March 2022, and the relevant business is subject to the Detailed Rules for the Implementation of the Regulations of the People's Republic of China on the Registration and Administration of Market Entities promulgated by the State Administration for Market Regulation)

In addition, according to Article 13 of the Regulations on the Administration of Internet Access Service Business Premises, if a business unit operating an Internet access service business premises changes its name, domicile, legal representative or principal responsible person, it shall go through the change registration with the administrative department for industry and commerce in accordance with the law, and go through the relevant formalities or filing with the administrative department for culture and the public security organ.

From the above provisions, it can be seen that the transfer of the Kyushu Internet Café operated by Xiang Yaqiang to Xiangdong does not mean that the Kyushu Internet Café is closed or dissolved, and the Kyushu Internet Café has not been extinguished, and its business license is still valid.

Xiang Dong, as the transferee of the Kyushu Internet Cafe, only needs to apply to the industrial and commercial department for a change of registration with the transfer agreement in accordance with the above provisions.

Similarly, the transfer of the Kyushu Internet café to Xiangdong to Yaqiang does not necessarily lead to the invalidation of the three certificates of the Kyushu Internet café's network culture business license, and after the registration of the industrial and commercial department is changed to the east, and then the legal representative of the Internet culture business license is changed by the cultural department with a new business license, it can continue to operate the Kyushu Internet café legally.

2. The transfer of relevant licenses to the east is one of the contents of the performance of the transfer agreement of the Internet café, and although the formalities for changing it were not completed in a timely manner, it does not constitute the crime of buying and selling documents of state organs. There are two reasons for this.

First, it was the Kyushu Internet Café that was transferred to the east, not the property of the Internet café.

According to the agreement signed by the two parties, the subject matter of the contract to be transferred to the east is the Kyushu Internet café that operates in accordance with the law and has the relevant licenses, and not the one license and three licenses of the Kyushu Internet café, and the one license and three licenses are used to open another Internet café. The relevant departments will issue one license and three certificates to the Kyushu Internet café, and the Kyushu Internet café and the investor Xiang Yaqiang are independent of each other, therefore, the one license and three certificates of the Kyushu Internet café do not belong to Xiang Yaqiang personally.

After Yaqiang transferred the Kyushu Internet Café to Xiangdong, the user of the Internet café's one license and three certificates did not transfer, so there was no act of buying or selling state organ documents between the two defendants in this case.

Second, laws and regulations impose different penalties on the transfer of licenses and the failure to change the registration of enterprises after the transfer.

The Law on Sole Proprietorship Enterprises and the Regulations on the Administration of Business Premises for Internet Access Services provide different penalties for the transfer of business licenses, online culture business licenses, and the failure of enterprises to change their registration in accordance with regulations after the transfer.

Article 35 of the Law of the People's Republic of China on Sole Proprietorship Enterprises stipulates that anyone who alters, leases or transfers a business license shall be ordered to make corrections, confiscate illegal gains, and be fined not more than 3,000 yuan; where the circumstances are serious, the business license is revoked.

Article 37 stipulates that when there is a change in the registration items of a sole proprietorship enterprise, if it fails to handle the relevant change registration in accordance with the provisions of this Law, it shall be ordered to change the registration within a time limit, and if it fails to do so within the time limit, it shall be fined not more than 2,000 yuan.

Article 29 of the "Regulations on the Administration of Internet Access Service Business Premises" stipulates that if an Internet access service business premises business unit alters, leases, lends or otherwise transfers an online cultural business license, which is not sufficient for criminal punishment, the administrative department for culture shall revoke the online cultural business license, confiscate the illegal gains, and impose a fine.

Article 32 stipulates that if a business unit operating an Internet access service business site changes its legal representative or principal responsible person without going through the relevant formalities or filing with the administrative department for culture or the public security organ, the administrative department for culture and the public security organ shall give a warning on the basis of their respective powers and may impose a fine of up to 15,000 yuan; and where the circumstances are serious, order a suspension of business for rectification, up to and including revocation of the online culture business license.

As an administrative crime, the crime of buying and selling documents of state organs must not exceed the scope of the targets of punishment for similar administrative violations.

According to the above provisions, the act of failing to change the registration in a timely manner after the transfer of the Kyushu Internet café to Yaqiang and Xiangdong does not belong to the act of transferring the certificates of state organs as stipulated in the Law on Sole Proprietorship Enterprises and the Regulations on the Administration of Business Premises for Internet Access Services, and naturally does not constitute the crime of buying and selling certificates of state organs, nor does it belong to the act of buying and selling business licenses in the crime of illegal business operation as stipulated in the Criminal Law.

3. The defendant's conduct of transferring an Internet café in Kyushu to the east is inconsistent with the conduct of the crime of buying and selling documents of state organs as provided for in article 280 of the Criminal Law.

Article 280 of the Criminal Law stipulates that anyone who forges, alters, buys or sells, or steals, snatches, or destroys official documents, certificates, or seals of state organs shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention, controlled release, or deprivation of political rights, and shall also be fined; where the circumstances are serious, a sentence of between 3 and 10 years imprisonment and a concurrent fine is to be given.

Based on the above provisions, the defender believes that the crime of buying and selling documents of state organs refers to the purchaser obtaining relevant documents through buying and selling without meeting the conditions for applying for relevant documents.

The mode of conduct of this crime is generally divided into two types: 1. buying and selling documents made in the name of state organs with false content; 2. Buy and sell the documents that the original holder applies for and obtains from the state organs. The defendant's act of transferring the Kyushu Internet café to the east did not belong to any of the above-mentioned acts.

4. The defendant continued to operate the Kyushu Internet Café after receiving the transfer to the east, and although he did not go through the registration of the license change, it did not constitute the crime of illegal business operation.

According to Article 225 of the Criminal Law, the crime of illegal business operation refers to the act of engaging in unauthorized business activities and disrupting market order in violation of state regulations, and the circumstances are serious.

Article 27 of the "Regulations on the Administration of Business Premises for Internet Access Services" stipulates that those who engage in Internet access service business activities without authorization in violation of the provisions of these Regulations shall be banned in accordance with law; Those who violate the criminal law shall be investigated for criminal responsibility in accordance with the provisions of the Criminal Law on the crime of illegal business operation.

The Regulations on the Administration of Business Premises for Internet Access Services are administrative regulations formulated by the State Council and are national provisions in the Criminal Law.

The failure to go through the relevant formalities or filings with the cultural administrative department or public security organ after changing the legal representative or investor of an Internet café is not an act that seriously disrupts the order of the market economy as stipulated in the Regulations, nor does it comply with the provisions of Article 225 of the Criminal Law.

In this case, the defendant entered into a Kyushu Internet café transfer agreement with Yaqiang and Xiangdong, and transferred the Kyushu Internet café and computer equipment operated by Yaqiang to Xiangdong.

On the face of it, the defendant in this case, Xiang Dong, who was transferred to the Kyushu Internet café, did not buy and sell the Internet culture business license separately, and used the license to carry out Internet access service business activities in other places, which is not an unauthorized engagement in Internet access service business activities.

In essence, after the transfer of the Kyushu Internet Café to the East, although the information of the legal representative registered on the business license and the network culture business license was not changed in a timely manner in accordance with the regulations, the network culture business license was still legal and valid as a compliance confirmation of the business address, business area, number of computers and other devices and ancillary equipment, information network security management system and security technical measures and other business requirements of the Kyushu Internet café.

Xiangdong continued to operate the Kyushu Internet café under the original address, the original business premises and the original business scale, and did not disrupt the business order of the Internet access service market. Therefore, Xiang Dong's conduct does not constitute the crime of illegal business operation.

To sum up, the defender believes that the defendant's act of transferring the Kyushu Internet café to the east is a normal commercial act and does not constitute a crime, and asks the court to rule that the defendant Xiangdong is not guilty in accordance with the law. Complete! Fang Yi said.

Lawyer Zhao on the side was very unbalanced, and said in his heart: Lawyer Fang, why are you talking so much, you can't tell the judge cleanly that the defendant does not constitute a crime, how troublesome it is to be verbose! You say so much, I say so little, how do you let Xiang family look at me, how can I be embarrassed!

The family of Xiang Lao Er (Xiang Yaqiang) in the auditorium was also churning in their hearts: Sure enough, you get what you pay for, and we asked Lawyer Zhao to spend less money, so Lawyer Zhao only said a few words; Xiang Dong's mother Xing Ping spent a lot of money to ask Lawyer Fang, and sure enough, Lawyer Fang's defense opinions also had a lot.

The presiding judge was also annoyed, after reading the case file before, he didn't know how many times he had greeted the guys from the procuratorate, and said secretly: Although we are a small county town and have seen little of the world, the act of enterprise transfer is legal and can activate the economy, don't you know? ! Isn't this looking for something for us? There are so many cases in the courthouse that we can't stop for a while.

Although he thought so, he was calm on the surface, and he didn't bring it out at all, and the procedures that should be followed in the trial were not missing at all.

"The prosecutor may respond to the defender's arguments." The presiding judge said.

"Okay presiding judge, in response to the defense opinions of the defendant Xiangdong's defender, we make the following opinions.

We believe that as long as it violates any laws and regulations of the state on the management of market operations, it can be determined as an objective act of the crime of illegal business operation.

In this case, the defendant Xiang Dong illegally accepted minors to Internet cafes to surf the Internet, which was also an illegal business operation, and his conduct constituted the crime of illegal business operation. Complete. Inspector Zhou was very unconvinced by Fang Yi's defense opinions.

"Defendant Xiang Dong's defense can respond to the prosecutor's opinion." The presiding judge said expressionlessly.

"Based on the prosecutor's defense and response, the defense counsel issued the following defense opinions:

The defender argued that the procurator's opinion was in essence to treat market order, which is the same kind of object as provided for in Chapter III of the Criminal Law, as the direct object of the crime of illegal business operation.

According to the public prosecutor's interpretation, the crime of illegal business operation stipulated in the sub-provisions of the Criminal Law is the crime of speculation and reversal as stipulated in the 1979 Criminal Law, and all the crimes provided for in Chapter III of the sub-provisions of the Criminal Law that violate the state's legal system related to the management of the market economy can be recognized as joint offenses of the crime of illegal business operation.

Obviously, this is not in line with the original legislative intent of the 1979 revision of the Criminal Law to abolish the crime of speculation, nor is it in line with the basic legal principle that criminal legislation should strive to clarify the number of crimes and the charges in order to achieve the legality of crimes.

The object of the crime of illegal business operation should be one or more specific systems, not a general market management system, so it cannot be found that the defendant in this case violated the relevant management system by admitting minors to Internet cafes to surf the Internet.

Therefore, the defense counsel held that the defendant Xiang Dong's conduct was not sufficient to constitute the crime of illegal business operation. Complete! Fang Yi said secretly: Since you buckle your hat indiscriminately, then I can only fight-for-tat.

Lawyer Zhao felt comfortable and said secretly: Pinch it, you both pinch hard! If Xiang Dong is not guilty, then Xiang Yaqiang will definitely be innocent as well; If Xiang Dong is found guilty, Lawyer Fang can be my shield.

The abacus in his heart crackled!

……

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(End of chapter)