"Well, this is for public companies, but what about non-public companies? Is a subdivision transfer allowed? Lawyer Zhao felt that Fang Yi was just reading from the script, and he might not really understand.

"The shares of non-listed companies are not allowed to be transferred in subdivisions. Although there are no legal provisions, there are relevant provisions in the regulations of the relevant departments. Moreover, the regulatory authorities have not allowed the subdivision and transfer of shares of non-listed companies limited by shares.

On 25 March 1998, the General Office of the State Council forwarded the CSRC's "Plan for Cleaning Up and Rectifying Illegal Over-the-Counter Stock Transactions," requiring that the subdivision transactions and warrant transactions engaged in by property rights exchanges established without the approval of the State Council be thoroughly cleaned up as illegal over-the-counter stock transactions.

Since then, the China Securities Regulatory Commission (CSRC) has made unwritten "three noes" regulations on the local property rights trading market, which are "not to be subdivided, not to be continuous, and not to be standardized".

In December 2006, the General Office of the State Council promulgated the Circular on Issues Concerning the Severe Crackdown on 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 Circular on Issues Concerning the Rectification of Illegal Securities Activities.

The above two circulars call for cracking down on all kinds of illegal and criminal securities activities, including illegal agency transfer of shares of non-listed companies.

Therefore, the subdivision and transfer of shares of non-listed companies is an illegal way of property rights transactions.

Mr. Zhao, you often do this kind of business, do you know about other relevant regulations, and are there any latest regulations? In the future, I can also learn from one or two for business. Fang Yi asked very politely.

Lawyer Zhao didn't expect Fang Yi to kick the ball back, in fact, the rules he knew were also these, and there was nothing new. He also followed his colleagues to do two similar cases and came over to show off, but in fact, he didn't study this kind of problem in depth, which is a bit of a tiger skin.

Seeing everyone looking at him, Lawyer Zhao laughed awkwardly twice and cleared his throat: "Lawyer Fang knows quite comprehensively.

Well, I do not deny that the defendant's conduct was in the nature of a property rights transaction to a certain extent, but this nature does not affect the determination that his conduct is a disguised securities business. Therefore, my opinion is that the defendant in this case has committed the crime of illegal business operation. He immediately digressed from the subject, appearing to be confident.

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

He was quite satisfied with Lawyer Fang's answer just now, to be honest, Mr. Gui didn't like Lawyer Zhao too much, and the reason was that Lawyer Zhao was too arrogant.

Humility benefits are full of losses, it is applicable everywhere, and I am not deceived!

"Well, I agree with Lawyer Zhao." Although Fang Yi was a little annoyed with Lawyer Zhao, this guy's judgment was consistent with his, and Fang Yi didn't want this negative emotion to affect his professional judgment.

"Oh? The reason? Mr. Gui asked.

Fang Yi glanced at the reasons he had summarized earlier: "I think that according to Article 225 of the Criminal Law, only if the circumstances of illegal business operation are serious, can the crime of illegal business operation be constituted.

As for the determination of 'serious circumstances', in judicial practice, it should be 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 conduct not only satisfies the condition of 'aggravating circumstances', but also falls under the category of 'particularly serious circumstances' on the grounds that:

1. The company established by the defendant is an investment company and does not have the qualifications to deal in securities, nor does it have the qualifications to engage in property rights trading business.

According to the Rules on Property Rights Transactions, a property rights transaction brokerage institution refers to an intermediary institution that has the qualifications to engage in property rights transactions and accepts the entrustment of enterprises to act as agents for property rights transactions, and the personnel engaged in property rights transaction business must have the corresponding brokerage qualifications.

In this case, the company operated by the defendant was neither licensed nor qualified as a property rights trading brokerage institution, which was obviously beyond the scope of operation.

After the Municipal Administration for Industry and Commerce made a penalty decision to order corrections and impose a fine of 10,000 yuan on the grounds that the company exceeded the scope of operation, the company did not rectify the relevant business.

On the contrary, the company has added the business item of 'applying for property rights transactions' and continues to act as an agent for the sale of shares of non-listed companies.

However, 'agency property rights transaction application procedures' refers to the service activities of accepting the entrustment of the property owner and submitting the application for property rights transaction to the property rights trading institution in the name of the property rights owner, excluding directly engaging in property rights transaction activities.

Therefore, the fact that the company had exceeded its scope of operation by adding the business item of 'applying for property rights transactions' could not change the fact that it had exceeded its scope, and the fact that the investment company operated by the defendant continued to sell shares of the unlisted company to the public after being punished by the industrial and commercial department, which was obviously a malicious operation beyond the scope of operation.

2. The amount of business and profits made by the defendant was particularly huge.

The defendant sold shares of non-listed companies to the public, with a total sales amount of RMB7,698,300 and a profit of RMB3.1 million.

Although there is currently no judicial interpretation that stipulates the specific amount criteria for 'serious circumstances' and 'particularly serious circumstances' for illegal securities business, courts will generally refer to relevant judicial interpretations when making judgments.

For example, Articles 11 and 12 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Publications stipulate that the publishing, printing, reproduction, and distribution of illegal publications other than those provided for in Articles 1 to 10 of this Interpretation that seriously endanger social order and disrupt market order, and the amount of personal business is more than 150,000~300,000 yuan, or the amount of illegal gains is more than 50,000-100,000 yuan, is a "particularly serious circumstance".

3. The defendant's conduct disrupted the order of the national securities market, easily caused mass incidents, and caused great harm to society.

In the past year or so, the company operated by the defendant deceived more than 300 investors into buying shares of an unlisted company limited by shares on the grounds that the stock could be listed in a short period of time and that it could obtain a high return on the original shares.

Moreover, if the defendant fails to fulfill its promises, investors will not be able to make profits or even cause significant losses, and it is very likely that a mass incident will occur, affecting local social stability.

To sum up, the defendant in this case exceeded the business scope of the company approved and registered by industry and commerce, and transferred the equity of an unlisted joint-stock company to the public without the approval of the statutory authority, which is an illegal securities business, and the circumstances are particularly serious, constituting the crime of illegal business operation.

However, in view of the fact that the purpose of the defendant's establishment of the company was to engage in illegal securities business, and since the main activity of the company was to commit the crime after its establishment, according to Article 2 of the Interpretation of the Supreme People's Court on Issues Concerning the Specific Application of Law in the Trial of Cases Involving Crimes by Units, it should not be punished as a crime committed by a unit, so I believe that there is no problem with the characterization of this case by the court of first instance.

As for sentencing, if there are no statutory mitigating circumstances, I personally believe that the original verdict will be upheld in the second instance. Fang Yi looked at Mr. Gui and said.

(End of chapter)