Article 225 Whoever, in violation of State regulations, commits one of the following illegal business operations and disrupts the market order, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also, or shall only, be fined not less than one time but not more than five times the illegal income; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than five years, and shall also be fined not less than one time but not more than five times for illegal gains or confiscation of property:

(a) operating a franchise or monopoly commodity or other commodities whose operation is restricted 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 by laws and administrative regulations;

(3) illegally engaging in securities, futures or insurance business without the approval of the relevant competent department of the state; (This clause was added to Article 8 of the First Amendment)

(four) other illegal business activities that seriously disrupt the market order. Item (3) of the original Criminal Law Amendment 1999.

First, the standard of filing the crime of illegal business operation.

According to the relevant provisions of the Provisions of the Ministry of Public Security and the Supreme People's Procuratorate on the Prosecution Standards of Economic Crime Cases, if one of the following circumstances is met, it shall be prosecuted for the crime of illegal business operation:

Anyone who, in violation of state regulations, engages in international telecommunications business or profit-making activities involving telecommunications business in Hong Kong, Macao and Taiwan without authorization by renting international private lines, privately setting up exchange equipment or other means shall be prosecuted under any of the following circumstances:

1, and the amount of outbound business is greater than 1 ten thousand yuan;

2. The loss of telecom tariff caused by the operation of inbound business is more than 6.5438+0 million yuan;

3, although not up to the above standard, but because of illegal operation of international telecommunications services or telecommunications services involving Hong Kong, Macao and Taiwan, he has received more than 2 administrative penalties and has illegal business activities.

Illegal operation of foreign exchange, suspected of one of the following circumstances, should be prosecuted:

1. buying and selling foreign exchange outside designated foreign exchange banks and China foreign exchange trading center and its sub-centers, with an amount of more than US$ 200,000 or an illegal income of more than RMB 50,000;

2. Companies, enterprises or other units, in violation of the relevant provisions of foreign trade agency business, fraudulently purchase foreign exchange from designated foreign exchange banks for others by illegal means, or knowingly forge or alter vouchers or commercial documents, the amount of which is more than 5 million US dollars, or the illegal income is more than 500,000 yuan;

3. Introduce through an intermediary that the amount of foreign exchange fraudulently purchased is more than 1 10,000 USD or the illegal income is more than 1 10,000 RMB.

Publishing, printing, copying and distributing illegal publications in violation of state regulations shall be prosecuted under any of the following circumstances:

1, the amount of illegal business operation by individuals is more than 50,000 yuan, and the amount of illegal business operation by units is more than 6,543.8+0.5 million yuan;

2, the amount of illegal income of individuals in 20 thousand yuan to 70 thousand yuan, the amount of illegal income of units in more than 50 thousand yuan;

3. Individuals illegally operate 5000 newspapers or 5000 periodicals or 2000 books or more than 500 audio-visual crystals and electronic publications, and units illegally operate 1500 newspapers or 15000 periodicals or 5000 books or 1500 audio-visual products and electronic publications.

Anyone who engages in securities, futures and insurance business illegally without the approval of the relevant competent departments of the state, whose illegal business amount is more than 300 thousand yuan or whose illegal income is more than 50 thousand yuan, shall be prosecuted.

Individuals or units engaged in other illegal business activities, suspected of one of the following circumstances, should be investigated:

1, the amount of personal illegal business is more than 50,000 yuan, or the amount of illegal income is more than 1 10,000 yuan;

2. The illegal business operation amount of the unit is more than 500,000 yuan, or the illegal income amount is more than 654.38+10,000 yuan.

Article 225 of the Criminal Law stipulates that anyone who violates state regulations and commits one of the following illegal business operations and disrupts market order, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than 1 times but not more than 5 times the illegal income; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than five years, and shall also be fined not less than 1 times but not more than 5 times of the illegal income or his property shall be confiscated: (1) engaging in the exclusive sale of commodities or other commodities whose trading is restricted 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 by laws and administrative regulations; (3) Other illegal business operations that seriously disrupt the market order.

The NPC Standing Committee's Decision on Punishing the Crime of Cheating, Escaping and Illegal Trading in Foreign Exchange supplements this crime, stipulating that "whoever illegally buys or sells foreign exchange outside the trading places stipulated by the state and disrupts the market order, if the circumstances are serious, shall be convicted and punished in accordance with the provisions of Article 225 of the Criminal Law. If a unit commits the crime mentioned in the preceding paragraph, it shall be punished in accordance with the provisions of Article 23 of the Criminal Law 1. " .

The amendment to the Criminal Law further modifies and perfects this crime, and stipulates that one item is added to Article 225 of the Criminal Law as the third item: "Illegal operation of securities, futures or insurance business without the approval of the relevant competent department of the state;" The original item 3 was changed to item 4.

CaseNo. 1, the standard for filing this crime, violates state regulations, engages in international telecommunications business or profit-making activities involving telecommunications business in Hong Kong, Macao and Taiwan without authorization by renting international private lines, privately setting up exchange equipment or other methods, and shall be prosecuted under any of the following circumstances:

(1) The amount of outbound business is greater than 1 ten thousand yuan;

(2) The loss of telecom tariff caused by the operation of inbound business is more than 6,543,800 yuan;

(3) Having been subjected to administrative punishment for more than 2 times for illegally operating international telecommunication services or telecommunication services involving Hong Kong, Macao and Taiwan, although the above-mentioned amount standard has not been reached. "

On April 28th, 2000, the Supreme People's Court issued the Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Cases Disrupting the Management Order of the Telecommunication Market, which stipulated that such crimes involved "serious circumstances" and "particularly serious circumstances". The "serious circumstances" stipulated here is the starting point of punishment and the standard of filing a case, which is consistent with the standard of economic crime prosecution.

The so-called "outbound business volume" refers to the total duration (minutes) of the actor's illegal operation of international telecommunications business or telecommunications business involving Hong Kong, Macao and Taiwan multiplied by the user usage fee charged by the actor per minute.

The so-called "telecom tariff loss" refers to the amount obtained by multiplying the total duration (minutes) of the actor's illegal operation of international telecom business or telecom business involving Hong Kong, Macao and Taiwan by the international settlement price due to China in legal telecom business every minute.

As for item (3), we should pay attention to the following points: first, "although it has not reached the above-mentioned amount standard", according to the relevant provisions in the annex to the Standard Provisions on the Prosecution of Economic Crime Cases, it means that it is close to the amount standards stipulated in items (1) and (2), reaching more than 80% of the amount, that is, "the amount of outbound business is more than 800,000 yuan; second, As for the type of punishment, the specific time and the time interval between two punishments, it does not affect the investigation of criminal responsibility. Third, as long as it belongs to "the amount of illegal outgoing business is more than 800,000 yuan, and at the same time, it is subject to administrative punishment for illegally operating international telecommunications business or telecommunications business involving Hong Kong, Macao and Taiwan for more than 2 times, and illegal business activities are also carried out", or "the amount of telecom tariff loss caused by illegal incoming business is more than 800,000 yuan, and at the same time, it is subject to administrative punishment for illegally operating international telecommunications business or telecommunications business involving Hong Kong, Macao and Taiwan for more than 2 times, and illegal business activities are also carried out", the public security organ shall file a case,

In the second case, "illegal foreign exchange business, suspected of one of the following circumstances, should be prosecuted:

(1) buying and selling foreign exchange outside designated foreign exchange banks and China Foreign Exchange Trading Center and its sub-centers, with an amount of more than USD 200,000, or with an illegal income of more than RMB 50,000;

(2) A company, enterprise or other unit, in violation of the relevant provisions on foreign trade agency business, fraudulently buys foreign exchange from a designated foreign exchange bank for others by illegal means, or knowingly forges or alters documents or commercial documents, the amount of which is more than 5 million US dollars, or the illegal income is more than 500,000 yuan;

(3) The amount of foreign exchange fraudulently purchased through intermediary is more than USD 6,543.8+0,000, or the illegal income is more than RMB 6,543.8+0,000. "

The NPC Standing Committee's Decision on Punishing Crimes of Foreign Exchange Fraud, Foreign Exchange Evasion and Illegal Trading of Foreign Exchange stipulates that anyone who illegally buys or sells foreign exchange outside the trading places stipulated by the state and disturbs the market order, if the circumstances are serious, shall be convicted and punished for the crime of illegal business operation in accordance with the provisions of Article 225 of the Criminal Law. Prior to this decision, the Supreme People's Court adopted the Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Fraudulent Purchase and Illegal Trading of Foreign Exchange on August 28th, 20 1998, which came into effect on September 28th of the same year, and made a judicial interpretation on cases of illegal trading of foreign exchange. Article 3 of the Interpretation stipulates that whoever buys or sells foreign exchange outside the designated foreign exchange banks and China Foreign Exchange Trading Center and its sub-centers and disrupts the order of the financial market shall be convicted and punished in accordance with the provisions of Item (3) of Article 225 of the Criminal Law: (1) illegally buying or selling foreign exchange of more than US$ 200,000; (two) the illegal income of more than fifty thousand yuan. Article 4 stipulates that any company, enterprise or other unit that violates the provisions of foreign trade agency business by fraudulently buying foreign exchange for others from designated foreign exchange banks, or knowingly using forged or altered vouchers or commercial documents, with an amount of more than US$ 5 million or an illegal income of more than 500,000 yuan, shall be convicted and punished in accordance with the provisions of Item (3) of Article 225 of the Criminal Law. Whoever fraudulently purchases foreign exchange through an intermediary is more than 654.38 million US dollars or the illegal income is more than 654.38 million yuan shall be convicted and punished in accordance with the provisions of Item (3) of Article 225 of the Criminal Law. It can be seen that the provisions on the prosecution standard of economic crime cases are consistent with the judicial interpretation standard of the Supreme Court on illegal foreign exchange business. For this kind of illegal business crime, it is mainly to investigate the amount of illegal purchase of foreign exchange, fraudulent purchase of foreign exchange, and fraudulent purchase of foreign exchange through intermediary introduction. In line with the above standards, the public security organ shall file a case for investigation; Those who fail to meet the above-mentioned amount standards shall be given corresponding administrative penalties by the state foreign exchange authorities.

The third case of the standard for filing a case for this crime is "publishing, printing, copying and distributing illegal publications in violation of state regulations, and under any of the following circumstances, it shall be prosecuted:

(1) The amount of illegal business by individuals is more than 50,000 yuan, and the amount of illegal business by units is more than 6,543,800 yuan+0.5 million yuan;

(two) the amount of illegal income of individuals is more than twenty thousand yuan, and the amount of illegal income of units is more than fifty thousand yuan;

(3) Individuals illegally operate 5,000 newspapers or 5,000 periodicals or 2,000 books or more than 500 audio-visual products and electronic publications, and units illegally operate15,000 newspapers or periodicals15,000 books or 5,000 audio-visual products or electronic publications 1500. "

The Interpretation of Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Publications, which was adopted by the Supreme People's Court on June 5438+0998+February 1 and came into effect on February 23 of the same year, clearly explained the "serious circumstances" and "particularly serious circumstances" involved in such crimes. According to the explanation, if publishing, printing, copying and distributing illegal publications in violation of state regulations constitute the crime of copyright infringement and the crime of selling infringing copies, they shall be convicted and punished respectively in accordance with the provisions of these two types of crimes. Whoever engages in publishing, printing, copying and distributing other illegal publications that seriously endanger social order and disrupt market order, if the case constitutes a crime, shall be convicted and punished for the crime of illegal business operation in accordance with the provisions of Article 225 of the Criminal Law. There are three cases of conviction and punishment according to the crime of illegal business operation: first, individuals commit the above-mentioned acts, and "serious circumstances" means: (1) the business amount is more than 50,000 yuan to 1 10,000 yuan; (two) the amount of illegal income is more than 20 thousand yuan to 30 thousand yuan; (3) Operating 5,000 newspapers or 5,000 periodicals or 2,000 books or more than 500 audio-visual products and electronic publications. Second, the unit implements the above behavior. "Serious circumstances" means: (1) the business amount is between 15000 yuan and 300000 yuan; (2) the amount of illegal income is more than 50,000 yuan to 654.38+10,000 yuan; (3) Operating more than 15000 newspapers or 15000 periodicals or 5000 books or 1500 audio-visual products and electronic publications (boxes). 3. The amount of business, the amount of illegal income or the amount of business is close to the starting point of the amount and quantity of illegal business activities. Under any of the following circumstances, it can be considered as "serious" illegal business activities: (1) Being subject to administrative punishment for publishing, printing, copying and distributing illegal publications for more than two years; (two) publishing, printing, copying and distributing illegal publications, which has caused adverse social impact or other serious consequences.

The so-called "business amount" refers to the amount obtained by multiplying the pricing amount of illegal publications by the number of illegal publications operated by the actor.

The so-called "amount of illegal income" refers to the amount of profit. If an illegal publication is not priced or priced in foreign currency, its unit price shall be determined according to the price actually sold by the actor.

The fourth case of the standard for filing a case for this crime is "those who illegally engage in securities, futures and insurance business without the approval of the relevant competent departments of the state, and the illegal business amount is more than 300,000 yuan, or the illegal income is more than 50,000 yuan, shall be prosecuted." The amendment to the Criminal Law stipulates that one item shall be added as the third item in Article 225 of the Criminal Law: "those who illegally engage in securities, futures and insurance business without the approval of the relevant competent departments of the state". For this kind of illegal business cases, mainly from the amount of illegal securities, futures or insurance business.

The so-called "illegal business amount" refers to the total amount involved in illegal securities, futures or insurance business.

The so-called "amount of illegal income" refers to the amount of illegal profits after deducting costs.

In line with the above standards, the public security organ shall file a case for investigation; If the above quantitative standards are not met, the relevant departments shall give corresponding administrative penalties.

For the fifth case of the standard for filing a case for this crime, "if an individual or unit engages in other illegal business activities and is suspected of one of the following circumstances, it shall be prosecuted: (1) the amount of illegal business of an individual is more than 50,000 yuan, or the amount of illegal income is more than 1 10,000 yuan; (2) The illegal business operation amount of the unit is more than 500,000 yuan, or the illegal income amount is more than 654.38+10,000 yuan. " This is a supplementary provision for crimes that cannot be included in the above four types of illegal business cases. Because the prosecution standards of units and individuals are inconsistent, we must first find out whether individuals or units are engaged in illegal business, and whether the amount of illegal business and illegal income meet the above standards. In line with the above standards, the public security organ shall file a case for investigation; If the above quantitative standards are not met, the relevant departments shall give corresponding administrative penalties.

Constitution of this crime

The crime of illegal business operation is an independent new crime separated from the crime of speculation stipulated in the original criminal law. It refers to a serious act of deliberately engaging in illegal business activities and disrupting market order in violation of state regulations.

1. The object of the crime of illegal business operation is the normal management of the market by the state and the order of market transactions. In order to maintain the market order and give full play to the regulating role of the market in economic activities, national laws and regulations stipulate that franchised or monopolized commodities or other commodities with restricted transactions must be approved by the relevant competent departments and issued with business licenses before they can operate, and no unit or individual may operate without authorization. Illegal business practices violate the above-mentioned national market management system and disrupt the market order.

The object of this crime refers to the franchised and monopolized goods that are operated without permission, or the goods and articles that are restricted in trade, foreign exchange and import and export licenses, import and export certificates of origin, business licenses or approval documents as stipulated by other laws and regulations.

2. The objective aspect of this crime is to violate state regulations, illegally engage in business activities and disrupt market order. First of all, the actor violated the relevant laws and regulations of the state, mainly referring to a series of laws and regulations of the state on franchising, monopolizing goods or other goods with restricted transactions. Secondly, engage in illegal business activities and disrupt market order. Specifically, it includes the following five types of behaviors:

(1) engages in franchise or monopoly commodities or other commodities whose trading is restricted by laws and administrative regulations without permission. Without permission, it means without the approval of the relevant competent department of the state. Franchise and monopoly goods refer to goods that must be franchised and monopolized by specialized agencies according to national laws and administrative regulations, such as salt and cigarettes. Other articles whose trading is restricted refer to articles whose business is restricted for a certain period of time according to the needs of economic development and safeguarding the interests of the state, society and people, such as fertilizers and pesticides. The scope of these projects is not static, and will be constantly adjusted and changed with the development of social economy.

(2) buying and selling business licenses or approval documents such as import and export licenses and import and export certificates of origin. Import and export license is an important license issued by the state to strengthen foreign trade management. According to the provisions of the Foreign Trade Law, foreign trade operators must obtain state permission in advance to import or export goods and technologies restricted by the state. Buying and selling import and export licenses is prohibited by criminal law.

Import and export certificate of origin refers to a document that can prove the origin of goods. It is a certificate for importing countries to levy differential tariffs and implement other import differential treatment according to different origins. The business license or approval document stipulated by other laws and regulations refers to the license or approval document issued by the relevant competent department of the state to operate certain specific industries or specific commodities. Such as cutting license, tobacco, salt, important agricultural production materials and other business licenses.

(3) illegally buying and selling foreign exchange outside the trading places stipulated by the state. Illegal buying and selling of foreign exchange has serious social harm. The existence of foreign exchange black market has seriously disturbed the financial order of the country, and has an important impact on people's psychological expectations, thus exerting great pressure on the stability of the RMB. In order to punish the crime of illegally buying and selling foreign exchange, Article 4 of the Decision on Punishing the Crime of Cheating, Evading and Illegally Buying and Selling Foreign Exchange adopted by the National People's Congress Standing Committee (NPCSC) stipulates: "Whoever buys and sells foreign exchange outside the trading places stipulated by the state and disrupts the market order, if the circumstances are serious, shall be convicted and punished in accordance with the provisions of Article 225 of the Criminal Law." Therefore, it is clearly defined as the crime of illegal business operation in the form of legislation.

(4) illegally engaging in securities, futures or insurance business without the approval of the relevant competent department of the state. In view of the fact that some units or individuals secretly engage in securities and futures brokerage business and insurance business without the approval of the competent state department, which seriously disrupts the normal order of futures, securities and insurance markets and harms the interests of investors, shareholders and policyholders, the amendment to the Criminal Law clearly stipulates that criminal responsibility should be investigated for this crime of illegal business operation. It should be pointed out that the above-mentioned criminal acts are aimed at units or individuals that have not obtained the qualification to engage in securities, futures and insurance business, rather than the illegal acts of units or individuals with legal qualifications. Securities, futures and insurance practitioners who engage in securities, futures trading and insurance business in violation of regulations cannot be regarded as illegal business operations.

(five) other illegal business activities that seriously disrupt the order of market management. This refers to other illegal business practices that undermine the market management order except the first four. These other illegal business practices should generally have three characteristics: First, these behaviors must occur in production and business activities. Second, this behavior must violate market management regulations. Third, it has caused serious confusion to the market management order. In practice, there are mainly monopoly supply, hoarding and driving up prices; Selling gold and silver and its products; Reselling wastes whose import is prohibited or restricted by the state; Illegally engaging in pyramid schemes or engaging in pyramid schemes in disguised form; Selling gasoline products and so on. In addition, according to article 15 of the Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Publications issued by the Supreme People's Court 1998 12, if the business of publishing, printing, copying and distributing publications is illegally engaged, which seriously disrupts the market order, and the circumstances are particularly serious, which constitutes a crime,. According to Article 4 of the Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Foreign Exchange Fraud and Illegal Trading in Foreign Exchange, issued by the Supreme People's Court in September 1998, if a company, enterprise or other unit, in violation of the provisions of foreign trade agency business, defrauds foreign exchange from a designated foreign exchange bank for others by illegal means, or knowingly uses forged or altered vouchers or commercial documents, and the amount is more than US$ 5 million, it will fraudulently purchase foreign exchange through an intermediary/KLOC.

Finally, illegal business operation can only constitute a crime if the circumstances are serious, otherwise it will not constitute a crime of illegal business operation. As for what is serious, there is no judicial interpretation and legislative interpretation at present, but from the perspective of judicial practice, it is mainly based on the amount of crimes and comprehensively considers other circumstances, such as causing serious market disorder and serious consequences, engaging in illegal business activities many times, being repeatedly punished by the administration, refusing to change despite repeated admonitions, and having a bad social impact.

3. The subject, individual or unit of this crime can be constituted.

4. The subjective aspect of this crime is intentional, that is, knowing that his behavior is illegal and will have serious consequences of disrupting market order, but the actor hopes or allows this result to happen. Subjectively, the actor often has a profit-making purpose, but whether he has this purpose or not does not affect the establishment of this crime, and negligence cannot establish this crime.

Criminal responsibility of this crime

According to Articles 225 and 23 1 of the Criminal Law, Article 4 of the National People's Congress Standing Committee (NPCSC)'s Decision on Punishing Foreign Exchange Fraud, Foreign Exchange Evasion and Illegal Trading in Foreign Exchange, and Article 8 of the Criminal Law Amendment 1999, those who commit this crime shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and if the circumstances are serious, they shall also be given illegal income/KLOC.