At the workstation, Cheng Du frowned, his eyes switched back and forth between the case file materials of Lai Zixing's illegal business case and the computer screen, and his right hand kept turning the pencil, which was a habit he developed when he was in school, because he felt that only in this way could he concentrate and think about problems.

After Yu Wendong finished typing the defense opinions of a case on the computer, he got up and stretched, and saw that Cheng Du next to him had entered the realm of no self and no other, which made him secretly surprised, he didn't expect this goods to handle the case so seriously, and it was like two people in normal times. It is estimated that if he is not called for dinner, he can study the case for a day.

At this moment, Du Yong walked over: "How is the case going?" ”

"Master, do you think it is possible for Lai Zixing to constitute the crime of establishing a financial institution without authorization?" Cheng Du got up and asked suddenly.

"Oh? Let's go, take the case file, let's go to Boss Fang's office. Du Yong saw that more than half of the members of the team were in the office today, and it was easy to disturb others when discussing cases at the workstation. Fang Yi happened to go to the court just now, and he couldn't come back for a while, so he took his apprentice to Fang Yi's office.

Fang Yi's team has a habit of making his office the best place for team members to discuss cases as long as Boss Fang is not there. There is no way to be in Fang Yi's office every Friday meeting, and if there is a meeting, everyone has become a habit.

At first, Cheng Du was still a little apprehensive, thinking that Boss Fang was not there, and it was not good to enter other people's offices, but later when he saw that everyone was like this, he followed the local customs.

"Tell me what you think." After Du Yong sat down, he looked at Cheng Du opposite, who sat down and took out the information in his hand.

"Master, let me tell you what I understand, and see if what I said makes sense.

According to Article 174 of the Criminal Law, the establishment of a commercial bank, stock exchange, futures exchange, securities company, futures brokerage company, insurance company or other financial institution without the approval of the relevant competent state department constitutes the crime of establishing a financial institution without authorization.

I checked on the Internet, and the so-called 'unauthorized establishment of financial institutions' is generally manifested in two situations:

First, the perpetrator did not apply for establishment in accordance with the law with the People's Bank of China and other relevant state competent departments that have the authority to approve the establishment, and such situations are mostly seen in units and individuals that do not have the conditions for establishing financial institutions at all.

Second, although the actor submitted the application materials, the relevant competent department did not approve the application because it found that it did not meet the conditions after examination, and did not issue a financial business license.

In this case, the 'Dafa Company' established by the defendant not only did not have the approval of any financial authority, but also did not even meet the requirements for registration with the administrative authority for industry and commerce, which was obviously illegally established.

The financial institutions provided for in Article 174 of the Criminal Law refer to institutions engaged in or mainly engaged in financial business activities such as taking deposits, issuing loans, handling settlements, discounting bills, lending funds, trust investment, financial leasing, financing guarantees, and foreign exchange trading.

Generally, it includes commercial banks, stock exchanges, futures exchanges, securities companies, futures brokerage companies, insurance companies, financial leasing companies, guarantee companies, rural credit cooperatives, etc.

From the perspective of the business operated by 'Dafa Company', the business mode of Dafa Company conforms to the characteristics of pawnshops in the Measures for the Administration of Pawnbroking, that is, 'the pawnbroker pledges its movable property and property rights as pawns or mortgages its real estate as pawn to the pawnshop, pays a certain percentage of the fee, obtains the pawn money, and pays the pawn interest, repays the pawn money, and redeems the pawn within the agreed time limit'.

From the perspective of the essence of pawn behavior, pawn shops should belong to financial institutions. Therefore, the defendant's illegal establishment of the 'Dafa Company', which was actually engaged in pawnbroking activities, formally met the constitutive characteristics of the crime of establishing a financial institution without authorization.

Therefore, I think that the defendant Lai Zixing's conduct may constitute the crime of establishing a financial institution without authorization. After finishing speaking, Cheng Du put down the materials in his hand and looked at Du Yong.

"Well, being able to think independently and proactively about the facts of the case is commendable. At first, I thought about it, but then I rejected it. Du Yong leaned back in his chair and said with a smile.

With apprentices, the most afraid of people is the clouds, the master will say whatever the apprentice says, and the apprentice himself will not think independently. Master's words are not necessarily 100% correct, so if the apprentice wants to be better than the blue, he must have his own independent ideas, take the initiative to analyze the case, and learn the master's way of analyzing the case, but he can't be limited to this.

Cheng can say such a thing, Du Yong is very happy.

"Master, why did you reject this idea? Is there anything wrong with this idea? Cheng asked puzzled, in his opinion, his ideas were reasonable and well-founded, and there was no problem.

Although there is some truth in what you say, the legislative intent of the Criminal Law to provide for the crime of establishing financial institutions without authorization is not so simple.

This crime does not require the specific development of financial business, and the punishment is only a simple establishment act, but the reason why the Criminal Law directly recognizes such a simple establishment act as a crime is that such an act has a potentially serious danger to financial security.

From this point of analysis, if the act of establishment constitutes the crime of establishing a financial institution without authorization, it must inherently create a potentially serious danger to financial security, and if the act is unlikely to pose a serious danger to financial security, it cannot constitute the crime.

According to the literal provisions of article 174 of the Criminal Law, it seems that as long as the perpetrator commits the act of illegally establishing a financial institution, the crime of establishing a financial institution without authorization can be constituted. However, in specific cases, in order for an act that meets the characteristics of the crime to be found to constitute the crime, it is also necessary to determine whether the act is likely to pose a serious danger to financial security in terms of circumstances.

Whether the crime of establishing a financial institution without authorization is constituted can be analyzed from two aspects, namely, the formal and substantive elements:

The first aspect (formal requirements) is whether the institution illegally established by the perpetrator has some necessary formal characteristics of a legitimate financial institution, such as the name of the institution, the organizational department, the articles of association, the place of business, etc.

This is because, in practice, the so-called financial institutions established by the perpetrators are illegal only because they lack the approval requirements of the relevant state authorities, while the other requirements are often basically met, so that the general public can have trust, otherwise no one will have financial business dealings with them.

The second aspect (substantive elements) is whether the institution illegally established by the perpetrator has the substantive capacity to carry out the corresponding financial business, including financial strength, professional personnel, etc.

If we do not have the actual ability to carry out the corresponding financial business, it will not be possible to carry out the relevant financial business to the society, let alone the danger of seriously endangering the financial order and financial security.

In this case, the 'Dafa Company' set up by the defendant was only a house rented by the defendant in the wholesale market and listed for business, and it did not go through any of the most basic approval procedures, including registration with the industrial and commercial department.

According to the evidence on record, the "company" did not have sufficient working capital (the funds lent were all temporarily borrowed in the course of business transactions), carried out extremely irregular business (the loan agreements related to the car loan were all handwritten), and did not have enough professional practitioners (the defendant was the only one, and the defendant did not have a professional financial background).

To sum up, 'Dafa Company' does not meet the formal and substantive requirements of a financial institution as stipulated in Article 174 of the Criminal Law, and it does not reach the level of harm sufficient to threaten financial security and undermine financial order, so it cannot be punished as the crime of establishing a financial institution without authorization. Du Yong explained.

Three chapters today!

(End of chapter)