After listening to the prosecutor's response, Du Yong suddenly realized that he had made a mistake, the financial market is also a market, and it is somewhat inappropriate to understand the financial order separately from the market order. Careless! But fortunately, there is also a plan B.

"The defender may respond to the prosecutor's opinion." The presiding judge looked at him with a blank expression.

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

Although the defendant's conduct in this case falls under the circumstances provided for in Article 225, Paragraph 4 of the Criminal Law, according to the above-mentioned law, only 'disrupting market order and the circumstances are serious' can constitute the crime of illegal business operation, and the defendant's conduct in this case failed to reach the level of 'serious circumstances', so it does not constitute the crime of illegal business operation. The specific reasons are as follows:

In 2010, the Supreme People's Procuratorate and the Ministry of Public Security jointly issued the Provisions on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (II) (hereinafter referred to as "Standard II"), which stipulates the standard for prosecuting individual crimes under Article 225, Paragraph 4 of the Criminal Law as 'the amount of illegal business operations is more than 50,000 yuan, or the amount of illegal gains is more than 10,000 yuan'.

The defendant's illegal business turnover in this case was 130,000 yuan, and if this standard is applied, it is obvious that the defendant's conduct constitutes the crime of illegal business operation. ”

As soon as Du Yong's words fell, Lai Zixing in the defendant's dock was stunned, what does this mean, why didn't the lawyer I hired speak for me, and followed the procuratorate to say, defected?!

"However, in our view, the defendant's illegal conduct in the pawnbroking business cannot simply apply this standard. Here's why:

First, the provisions of Standard 2 on the standard for prosecution under Article 225, Item 4 of the Criminal Law are derived from the Provisions on the Standards for Prosecution of Economic Crime Cases jointly issued by the Supreme People's Procuratorate and the Ministry of Public Security in 2001.

At that time, the standard was mainly aimed at the illegal operation of monopolies, monopoly or other restricted goods in the field of production and circulation, as well as the purchase and sale of business licenses or approval documents.

As an illegal business activity in the general production and circulation field, where an individual's illegal business turnover reaches 50,000 yuan or more, or the amount of illegal income is more than 10,000 yuan, it may be found to have reached the level of 'serious circumstances' and disrupted market order.

However, illegal financial activities are different from illegal business activities in the fields of production and circulation, and the former often involves huge amounts, and if the circumstances are determined to be serious according to the above-mentioned standards, even if the above-mentioned amount standards are reached, they will not necessarily cause serious disruptions to the market order, so the application of the above-mentioned standards to measure the seriousness of illegal financial activities is obviously too low and inappropriate.

Second, the Standard 2 stipulates that Article 225, Paragraph 3 of the Criminal Law, that is, the standard for filing and prosecuting illegal securities, futures and insurance business is 'the amount of illegal business operation is more than 300,000 yuan', and the standard for filing and prosecuting for illegally engaging in fund payment and settlement business is 'the amount is more than 2 million yuan'.

It can be seen that Standard 2 has set out a special standard for determining the seriousness of the circumstances of financial business, and this special standard is obviously applicable to a higher amount standard. The reason for this is to take into account the peculiarities of illegal financial operations.

The defendant's illegal car loan business in this case is also an illegal financial business, and should also refer to the amount standard provided for in Article 225, Paragraph 3 of the "Standard 2" instead of simply applying the standard of item 4.

Third, in terms of the effectiveness of Standard 2, according to the Notice on the Reference Application of the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (II)) issued by the Supreme People's Court in 2010:

1. Where the Supreme People's Court has no provisions on the standards for conviction and sentencing of relevant economic crimes, the people's courts may refer to and apply the provisions of "Standard 2" when trying cases of economic crimes.

II. In the course of applying the "Standard 2" by reference, if the people's courts at all levels find that the relevant provisions of the "Standard 2" cannot meet the needs of the trial of the case, they should consider the specific circumstances of the case and local realities, and prudently and prudently handle the application of law and policy grasp of the case in accordance with law, so as to strive for better social results.

For the purposes of the present case:

First, from the perspective of the amount of the crime, the defendant's illegal business revenue was only 130,000 yuan, and the illegal income was less than 20,000 yuan, which is far from the standard of 'the amount of illegal business operation is more than 300,000 yuan';

Second, from the perspective of the scale of operation, the defendant only engaged in car loan business with two parties, which did not actually involve an unspecified majority of people in society, and did not cause serious disruption to the local financial order;

Third, from the perspective of subjective intent, the defendant subjectively only hoped to obtain certain economic benefits through the business activities, and did not have the direct intention to disrupt the financial order.

Fourth, from the perspective of financial capacity, due to the defendant's lack of operating funds, the operation of the company was objectively unsustainable, and it was difficult to pose a substantial threat to financial security.

To sum up, the defendant's illegal engagement in car loan has not yet reached the level of 'serious circumstances' and does not constitute the crime of illegal business operation. Complete. Du Yong responded.

(Note: On April 29, 2022, the Supreme People's Procuratorate and the Ministry of Public Security jointly issued the revised Provisions on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (II), which came into force on May 15, 2022.)

The "Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (II)" (Gongtong Zi [2010] No. 23) and the "Supplementary Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (II)" (Gongtong Zi [2011] No. 47) are repealed at the same time. ）

……

After the trial, out of prudence, the collegial panel did not announce the verdict in court. Outside the gate of the court, Du Yong and Cheng both persuaded Wang Jie, the daughter-in-law of the defendant Lai Zixing, to say a few words and returned to the law firm.

On the morning of the fourth day after the trial, Du Yong received a phone call from the judge, informing him that the procuratorate had applied for the withdrawal of the case, and that the court had just issued a ruling allowing the withdrawal of the case, asking him to go to the court to get the ruling, and informing his family that he would go to the detention center in the afternoon to pick up people.

Then Du Yong called Lai Zixing's daughter-in-law Wang Jie, told him about the procuratorate's withdrawal of the prosecution, and asked him to pick up Lai Zixing at the door of the detention center at 3 o'clock in the afternoon.

In the afternoon, Du Yong drove to the court first to receive the ruling.

The court held that the procuratorate's application to withdraw the indictment against the defendant Lai Zixing for the crime of illegal business operation was in accordance with the provisions of the law, and in accordance with article 177 of the Interpretation of the Supreme Court on Several Issues Concerning the Enforcement of the (Criminal Procedure Law), the court ruled to allow the procuratorate to withdraw the indictment against the defendant Lai Zixing for the crime of illegal business operation.

(End of chapter)