This term is provided by the "Rule of Law Encyclopedia" project leading group office of China Law Society.
The crime of illegal business operation is committed by the perpetrator《Criminal Law of the People's Republic of China》The illegal business activities mentioned in Article 225 constitute a crime.
Chinese name
Crime of illegal business
Basis
Article 225 of the Criminal Law
Criminal subject
Natural persons who have reached the age of criminal responsibility and are capable of criminal responsibility
The crime of illegal business operation refers to the perpetrator's implementation of illegal business activities as described in Article 225 of the Criminal Law of the People's Republic of China, thus constituting a crime.
Legal basis
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（1） Relevant provisions of the Criminal Law of the People's Republic of China (hereinafter referred to as the Criminal Law):
Article 225 stipulates that the crime of illegal business operation means that anyone who, in violation of State regulations, commits one of the following illegal business operations and disturbs 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 gains;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 the illegal gains or be sentenced to confiscation of property:
（1） Operating, without permission, goods that are monopolized or sold as prescribed by laws and administrative regulations or other goods that are restricted from trading;
（2） Buying and selling import and export licenses, import and export certificates of origin, and business licenses or approval documents as required by other laws and administrative regulations;
（3） Illegal operation of securities, futures and insurance business without approval of the relevant competent department of the State, or illegal operation of fund payment and settlement business;
（4） Other illegal business activities that seriously disrupt the market order.[1]
Sentencing standard:If the circumstances of the crime of illegal business operation are serious, he 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 gains;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 the illegal gains or be sentenced to confiscation of property.
（2） Relevant judicial interpretations:
Interpretation on Some Issues Concerning the Specific Application of Law in Handling Criminal Cases that Obstruct the Prevention and Control of Sudden Epidemic Diseases and Other Disasters (implemented on May 15, 2003)
Article 6 Interpretations: Whoever, in violation of the relevant market operation and price management regulations of the State during the period of preventing and controlling the epidemic situation of sudden infectious diseases and other disasters, drives up prices, makes exorbitant profits, seriously disturbs market order, and has a large amount of illegal gains or other serious circumstances, shall be convicted of the crime of illegal business operations in accordance with the provisions of Item (4) of Article 225 of the Criminal Law,Give a heavier punishment according to law.
Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Illegal Production, Sale and Use of Drugs Prohibited from Use in Feed and Animal Drinking Water (implemented on August 16, 2002)
Article 1 explains that anyone who illegally produces or sells clenbuterol hydrochloride and other drugs that are forbidden to be used in feed and animal drinking water without obtaining a drug production and trade license and approval number, thus disrupting the order of the drug market, and if the circumstances are serious, he shall be investigated for criminal responsibility for the crime of illegal trade in accordance with the provisions of Item (1) of Article 225 of the Criminal Law.
Article 2 explains that anyone who adds clenbuterol hydrochloride and other drugs that are forbidden to be used in feed and animal drinking water to the feed he produces or sells, or knowingly sells the feed with such drugs added, if the circumstances are serious, he shall be investigated for criminal responsibility according to the provisions of Item (4) of Article 225 of the Criminal Law.
Article 5 Interpretation: Anyone who commits an act prescribed in this interpretation and simultaneously violates two or more crimes prescribed in the Criminal Law shall be investigated for criminal responsibility in accordance with the provisions on heavier punishment.
Article 6 Drugs prohibited from use in feed and animal drinking water shall be determined in accordance with the catalogue of drugs prohibited from use in feed and animal drinking water announced by the relevant departments of the State.
Interpretation of the Supreme People's Court on Some Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Destroying Forest Resources
Those who forge, alter, or buy or sell forest cutting licenses, timber transport certificates, forest, tree, and woodland ownership certificates, review consent for occupying or requisitioning forest land, payment receipts for forest cultivation funds, and other forestry certificates approved by other state organs, which constitute crimes, shall be convicted and punished for the crime of forging, altering, or buying or selling official documents and certificates of state organs;However, if the business license certificate such as the import and export permit certificate for trading simultaneously constitutes the crime of illegal business operation, the offender shall be convicted and punished in accordance with the provisions on heavier punishment.
Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Destruction of Wildlife Resources
Those who forge, alter, buy or sell official documents and certificates issued by state organs, such as import and export permits for wild animals, special hunting and catching permits, hunting permits, domestication and breeding permits, which constitute crimes, shall be convicted and punished for the crime of forging, altering, buying or selling official documents and certificates issued by state organs;However, if the above-mentioned acts constitute a crime and also constitute a crime of illegal business operation, they shall be convicted and punished in accordance with the provisions on heavier punishment.
Reply of the Supreme People's Procuratorate on the Application of Law to Illegal International or Hong Kong, Macao and Taiwan Telecommunications Business
Those who illegally operate international or Hong Kong Special Administrative Region, Macao Special Administrative Region or Taiwan telecommunications business or engage in profit-making activities involving Hong Kong, Macao and Taiwan telecommunications business, thus disrupting the management order of the telecommunications market, shall be punished with the crime of illegal operation.
Constitutive requirements
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（1） Object Elements
The object infringed by the crime of illegal business operation should be the market order.Among them, the import and export licensing system is an important part of the business licensing system. The trading of import and export licenses and import and export certificates of origin not only violates the market order, but also violates the foreign trade management system.
According to the provisions of the Foreign Trade Law, the country implements a unified foreign trade system and promotes and develops trade relations with other countries and regions on the principle of equality and mutual benefit.In terms of foreign trade, the People's Republic of China grants the most favored nation treatment and national treatment to other contracting parties and participating parties or to the other party on the principle of reciprocity and reciprocity.If any country or region takes discriminatory prohibitions, restrictions or other similar measures against the People's Republic of China in terms of trade, the People's Republic of China may take corresponding measures against that country or region according to the actual situation. In order to ensure the development of foreign trade in accordance with the above provisions, the state requires that import and export goods must provide certificates of origin,An import and export license shall be applied for in addition to those that may be exempted from the license under special circumstances as prescribed by law.Therefore, the import and export certificate of origin and import and export license must be true and valid, and no forgery or alteration is allowed.At the same time, import and export certificates of origin and import and export licenses are used for specific import and export trade of specific importers and exporters, and are not allowed to be traded.Buying and selling certificates of origin and import and export licenses disturb the country's foreign trade order, which must be punished.
（2） Objective Elements
In the objective aspect, it is manifested as unlicensed operation of franchised and monopolized goods or other restricted goods, purchase and sale of import and export licenses, import and export certificates of origin, and other business licenses or approval documents required by laws and administrative regulations, as well as other illegal business activities, disrupting market order, and serious acts.There are mainly the following behavior modes:
1. Unauthorized operation of goods that are monopolized or sold as prescribed by laws and administrative regulations or other goods that are restricted from trading.
In order to ensure the normal order of the market, some materials related to the national economy and the people's livelihood, people's health and safety, and public interests are restricted from trading in China.Business activities such as purchase, storage, transportation, processing, wholesale and sales can only be carried out after approval and obtaining business license.It is illegal to operate without approval.The so-called restricted goods refer to the goods that are not allowed to be freely traded in the market according to regulations, such as important means of production and consumer goods that are not allowed to be freely traded by the state, goods that are operated by special units designated by the state, such as tobacco and grass monopoly goods (cigarettes, cigars, cut tobacco, re cured cigarette paper, filter sticks, cigarette tow, tobacco machinery), foreign exchangeGold, silver and its products, gold and silver handicrafts, jewelry and precious medicinal materials, etc.The state laws and administrative regulations shall stipulate which articles are subject to restrictions on sales.All of these are special regulations made by the state to regulate the market for specific goods. The operation of goods that are restricted without permission has caused great confusion in the market for goods that are restricted by the state.
Interpretation of the Supreme People's Court on Some Issues Concerning the Specific Application of Law in the Trial of Criminal Cases Concerning Illegal Publications (Fa Shi [1998] No. 30)Article 11: "Whoever, in violation of State regulations, publishes, prints, duplicates or distributes other illegal publications that seriously endanger social order and disrupt market order other than those specified in Articles 1 to 10 of this Interpretation, if the circumstances are serious, shall be convicted and punished for the crime of illegal business operations in accordance with the provisions of Item (3) of Article 225 of the Criminal Law."
It should be pointed out that although there are many kinds of restricted items, they must be stipulated by relevant national laws and regulations. Only those restricted by relevant laws and regulations are restricted items. Otherwise, they cannot be identified.In addition, whether the goods are restricted or not is not unchangeable, and the state can make changes and adjustments according to actual needs.
2. Buy and sell import and export licenses, import and export certificates of origin, and other business licenses or approval certificates required by laws and regulations.
The business license or the relevant approval documents shall be the valid evidence of the legitimacy of the holder's economic activities.Otherwise, it is illegal operation.Some lawbreakers, who were not qualified to operate goods restricted by the state and could not obtain relevant business licenses or approval documents, bought or even forged business licenses or approval documents from others in an attempt to evade inspection and sanctions.As a result, the illegal act of buying and selling business license and approval documents also arises.This kind of behavior directly promotes the proliferation of illegal business activities of the state that restrict the purchase and sale of goods in serious cases, which is quite harmful. Therefore, it should also be punished with penalties.
The import and export license shall be issued by the foreign economic relations and trade administration department of the State Council and its authorized institutions. It is not only the legal certificate for foreign trade operators to conduct foreign trade activities legally, but also an important certificate for the state to manage the import and export of goods and technologies. For example, the customs inspection and release of import and export goods and technologies must be based on this.The import and export certificate of origin refers to the valid certificate used to prove that the origin of import and export goods and technologies belongs to a country or region.It is a proof that the importing countries and regions levy differential tariffs and implement other import differential treatment according to different origins.The so-called business license or approval document stipulated by other laws and administrative regulations generally refers to the business license or approval document for the restricted goods.For example, a tobacco monopoly license is a certificate issued by the Tobacco Monopoly Bureau to enterprises and individuals to allow them to operate tobacco monopoly products. It includes a tobacco monopoly production license and a tobacco monopoly operation license.
The so-called transportation permit is a certificate issued by a provincial tobacco company according to the allocation plan, document or contract of the tobacco head office to handle the tobacco consignment formalities.The former is the material certification document for the license obtaining unit or individual to engage in the tobacco monopoly business, and is an important voucher to distinguish the legal operation and illegal operation of the tobacco industry.The latter is an important certificate for the receiving unit or individual to determine whether the tobacco transportation is legal or not. After examination and approval, the competent national department will issue the above-mentioned certificates to the unit or individual to strengthen the supervision and unified management of the production, operation and transportation of tobacco monopoly products.
3. Other illegal business activities that seriously disrupt the market order, illegal securities, futures or insurance business, and illegal fund payment and settlement business.
"Illegal fund payment and settlement business" refers to the business activity that can only be carried out by underground banks that illegally engage in commercial banks to accept customers' entrustment for collection and payment, transfer funds from the deposit account of the payer to the deposit account of the payee, so as to complete the settlement of claims and debts between customers or the transfer of funds.
4. Other illegal business activities that seriously disrupt the order of the market economy.
(1) Illegal trading of foreign exchange.
(2) Illegal operation of publications.
(3) Illegal operation of telecommunication business.
(4) Add clenbuterol hydrochloride and other prohibited articles in feed and animal drinking water to the feed produced and sold.
(5) Unauthorized establishment of Internet service business sites (Internet cafes) or unauthorized Internet service business activities.
(6) Illegal lottery operation.
（3） Main elements
The subject of this crime is the general subject, that is, all natural persons who have reached the age of criminal responsibility and have the capacity of criminal responsibility.A unit established according to law and capable of responsibility can also become the subject of this crime.The subject of this crime, according to the original meaning of this article, refers to the operator, but under the conditions of the market economy, "no one does not want to do business". If the subject of this crime is limited to a special subject, many acts of buying and selling goods, import and export licenses and import and export certificates of origin without any business license (non operator) will not be punished. Therefore, the subject of this crime is a general subject.The unit can also constitute the subject of this crime.
（4） Subjective element
The subjective aspect consists of intention and has the purpose of seeking illegal profits.If the perpetrator does not buy or sell business licenses for the purpose of seeking illegal profits, but because he does not understand laws and regulations, he should not be punished for this crime, but should be investigated for administrative responsibility by the competent department.
Common situations
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（1） Illegal foreign exchange trading
Illegal trading of foreign exchange outside the trading places stipulated by the State disturbs the market order and the circumstances are serious (if it is "illegally engaged in fund payment and settlement business", paragraph 3 of Article 225 shall apply).
（2） Dealing in illegal publications
In violation of State regulations, publishing, printing, duplicating or distributing illegal publications that seriously endanger social order and disrupt market order (except those that constitute other serious crimes), and the circumstances are serious.
（3） Unauthorized operation of international telecommunications business
In violation of the provisions of the State, using leased international special lines, private switching equipment or other methods to operate international telecommunications business or engage in profit-making activities involving Hong Kong, Macao and Taiwan telecommunications business without authorization, disrupting the management order of the telecommunications market, and the circumstances are serious.
（4） Pyramid marketing activities other than the crime of organizing and leading pyramid marketing activities
Those who implement pyramid selling or pyramid selling in disguised form other than the crime of organizing and leading pyramid selling activities in Article 224-1 of the Criminal Law and disturb market order, if the circumstances are serious, shall be punished as the crime of illegal business operation.If they constitute other crimes at the same time, they shall be convicted and punished in accordance with the provisions on heavier punishment.
（5） Illegal production and operation of clenbuterol
1. Those who illegally produce and sell clenbuterol hydrochloride and other drugs that are forbidden to be used in feed and animal drinking water without obtaining the drug production and business license and approval number, disturb the order of the drug market, and if the circumstances are serious, they shall be punished with the crime of illegal business;
2. Those who add clenbuterol hydrochloride and other drugs that are forbidden to be used in feed and animal drinking water to the feed they produce or sell, or knowingly sell feed with such drugs, if the circumstances are serious, shall be punished with the crime of illegal business operation.
（6） Raising prices during disasters such as infectious diseases
Those who violate the relevant market operation and price management regulations of the State during the period of preventing and controlling the epidemic situation of sudden infectious diseases and other disasters, drive up prices, seek huge profits, seriously disrupt the market order, have a large amount of illegal income, or have other serious circumstances, shall be convicted of the crime of illegal business operation and given a heavier punishment according to law.
（7） Unauthorized operation of Internet and other businesses
Whoever, in violation of State regulations, sets up a business site for Internet access services without authorization or engages in Internet access service business activities without authorization, if the circumstances are serious enough to constitute a crime, shall be punished as a crime of illegal business operation.
（8） Issuing and selling lottery tickets without authorization
Whoever issues or sells lottery tickets without the approval of the State, if the case constitutes a crime, shall be punished as a crime of illegal business operation.
（9） Illegal use of POS machine
1. In violation of national regulations, if a person directly pays cash to a credit card holder by means of fictitious transactions, inflated prices, cash returns, etc., using POS machines and other methods at the point of sale, if the circumstances are serious, he shall be convicted and punished as a crime of illegal business.
2. If a cardholder, for the purpose of illegal possession, maliciously overdraws in the above manner, and should be investigated for criminal responsibility, he shall be convicted and punished for the crime of credit card fraud.
（10） Illegal trade in tobacco products
Whoever produces, wholesales or retails tobacco products without the permission of the department of tobacco monopoly administration or without a production license, wholesale license or retail license, if the circumstances are serious, shall be convicted and punished for the crime of illegal business operation (Item 1 of Article 225 shall apply to this).
（11） Issuing fund units to raise funds without legal approval in violation of national regulations
If the circumstances are serious, he shall be convicted and punished for the crime of illegal business operation;If an intermediary agency illegally acts as an agent to buy or sell shares of a non listed company and commits a crime, it shall be punished as a crime of illegal operation.
（12） Illegal production and sale of non food raw materials and additives
For the purpose of providing food for others to produce and sell, in violation of State regulations, produce and sell non food raw materials that are prohibited by the State for food production and sale, if the circumstances are serious, or in violation of State regulations, produce and sell pesticides, veterinary drugs, feeds, feed additives, or feed raw materials, feed additive raw materialsIf the circumstances are serious, he shall be convicted and punished for the crime of illegal business operation;At the same time, if it also constitutes the crime of producing and selling fake and inferior products, or the crime of producing and selling fake and inferior pesticides, veterinary drugs and other crimes, it shall be convicted and punished in accordance with the provisions on heavier punishment.
（13） Illegal establishment of pig slaughterhouses
Whoever, in violation of State regulations, sets up pig slaughterhouses (farms) privately and engages in pig slaughtering, marketing and other business activities, if the circumstances are serious, shall be convicted and punished for the crime of illegal business operation;At the same time, if it also constitutes the crime of producing or selling food that does not conform to safety standards, or other crimes such as the crime of producing or selling toxic or harmful food, it shall be convicted and punished in accordance with the provisions on heavier punishment.
（14） "Internet Water Army" for profit
Whoever, in violation of the provisions of the State and for the purpose of making profits, provides paid information deletion services through information networks, or knowingly provides paid services such as releasing information through information networks, thus disrupting market order, if the circumstances are serious, shall be convicted and punished for the crime of illegal business operations.
（15） Illegal production and sale of radio equipment such as "black radio", "fake base station" and radio jammer
If the circumstances are serious, a crime of illegal business operation shall be established.
（16） Illegal drug trade
Whoever, in violation of the laws and regulations of the State on drug administration, illegally trades in drugs without obtaining or using a forged or altered drug trade license, if the circumstances are serious, shall be convicted and punished in accordance with the crime of illegal trade.
（17） Production and sales of non pharmaceutical raw materials and excipients that do not meet pharmaceutical requirements
Whoever, in violation of State regulations, produces or sells non pharmaceutical raw materials and auxiliary materials that do not meet the requirements for medicinal use for the purpose of providing them to others to produce or sell drugs, if the circumstances are serious, shall be convicted and punished for the crime of illegal business operation.
（18） Illegal production and sale of electronic facilities, equipment and software with gambling function
Whoever, in violation of State regulations, illegally produces or sells electronic game facilities and equipment or special software with gambling functions such as coin refund, score refund and steel ball refund for the purpose of providing others with casinos, if the circumstances are serious, shall be convicted and punished according to the crime of illegal business operation.
（19） Illicit trafficking of narcotic drugs or psychotropic substances that form addiction
For medical purposes, those who violate the relevant national regulations on drug administration and illegally sell state controlled narcotic drugs or psychotropic substances that can make people addicted, thus disrupting the market order, if the circumstances are serious, shall be punished as the crime of illegal trade.
common problem
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（1） Definition of crime
The following conditions must be met for a certain harmful act that is not clearly stipulated in the criminal law to be punished as a crime of illegal business operation:
1. This behavior is a kind of business behavior.Although the word "operation" does not specifically refer to economic business activities in linguistics, but refers to "planning and management", "planning and organization in general", etc., as an illegal business behavior stipulated in the "crime of disrupting the order of the socialist market economy", the word "operation" should be a business activity in the economic field,That is to say, it should be understood as an economic activity aimed at making profits, including business activities such as industry, commerce, service industry, transportation industry, etc.It is necessary to emphasize that the purpose of this "operation" is to make profits, which is a basic feature of the crime of illegal operation as an economic crime.If a so-called business activity is not for profit, but for public welfare or charitable purposes, it should be excluded from this crime even if some aspects of the behavior do not comply with relevant laws and regulations.
2. The operation is illegal.The so-called "illegality" refers to the violation of the laws and decisions formulated by the national legislature and the administrative regulations, administrative measures, decisions and orders issued by the State Council.It usually refers to the prohibited or restrictive norms that violate national laws and regulations.If national laws and regulations do not prohibit or restrict certain business activities, such business activities shall not be deemed as illegal business activities.For example, before the national legislature and the State Council explicitly prohibit or restrict the private operation of IP phones, the private operation of IP phones should not be recognized as illegal operation.The relevant provisions in certain administrative rules or other documents issued by departments under the State Council or local governments without the approval or authorization of the State Council that exceed the content of national laws and regulations cannot generally become the legal basis for determining illegal business operations.
3. The illegal operation seriously disturbed the market order.Taking the market order as the object of this crime, on the one hand, it shows that the crime of illegal business operation is a crime of disrupting the market order.This so-called "market order" includes market access order, market competition order and market transaction order.These three orders may become the object of the crime of illegal business operation.
Case analysis
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Case name: Wang x-jun's case of illegal business retrial to change the verdict of innocence
Case type: Bayannur League Intermediate People's Court of Inner Mongolia Autonomous Region/(2017) Nei 08 Xing Re No. 1/retrial
（1） Case Details
The People's Procuratorate of Linhe District, Bayannaoer City, Inner Mongolia Autonomous Region accused the defendant Wang x Jun of committing the crime of illegal business. The People's Court of Linhe District, Bayannaoer City, Inner Mongolia Autonomous Region, after hearing the case, held that the defendant Wang x Jun did not apply for a grain purchase license from November 2014 to January 2015, and was not approved, registered and issued a business license by the industrial and commercial administrative authority,Unauthorized, the village group near Bainaobao Town, Linhe District illegally purchased corn without a license, and sold the purchased corn to the Manhui Branch of Hangjinhou Banner of Bayannur Grain and Oil Company. The amount of illegal operation was 218288.6 yuan, and the illegal profit was 6000 yuan.After the crime, the defendant Wang Xjun voluntarily returned 6000 yuan of illegal profits.On March 27, 2015, the defendant Wang x-jun voluntarily surrendered to the economic investigation brigade of Linhe District Public Security Bureau in Bayannur City.The court of first instance held that the defendant Wang Xjun, in violation of national laws and administrative regulations, illegally purchased corn without the permission of the competent food department and the approval and registration of the industrial and commercial administrative authority and the issuance of a business license. The amount of illegal business was 218288.6 yuan, which was a large amount, and his act constituted a crime of illegal business.In view of the fact that the defendant Wang x-jun voluntarily surrendered to the public security organ after the incident, voluntarily returned all the illegal income, and showed repentance, the application of probation to him did not really harm society any more, it was decided to give the defendant Wang x-jun a lighter punishment according to law and apply probation.After the sentence was pronounced, Wang x-jun did not appeal and the procuratorial organ did not protest, so the sentence became legally effective.
On December 16, 2016, the Supreme People's Court made the retrial decision (2016) No. 6 of the Supreme People's Court, instructing the Bayannur Intermediate People's Court of Inner Mongolia Autonomous Region to retrial the case.
In the retrial, the original trial defendant Wang Xjun and the prosecutor and the defender had no objection to the facts identified in the original trial judgment, and the facts identified in the retrial were consistent with the facts identified in the original trial judgment.The People's Procuratorate of Bayannur City, Inner Mongolia Autonomous Region, proposed that although the act of the defendant in the original trial, Wang x-jun, was administrative illegal, it did not have the same social harmfulness and the need for criminal punishment as the illegal business operation specified in Article 225 of the Criminal Law, and did not constitute a crime of illegal business operation. It suggested that the retrial should be conducted in accordance with the law.The defendant in the original trial, Wang Xjun, had no objection to the facts and evidence identified in the original trial, but believed that his act did not constitute the crime of illegal business operation.The defender proposed that the act of the defendant in the original trial, Wang x-jun, purchasing corn without a certificate, did not have social harmfulness, criminal illegality and should be punished, did not meet the constitutive requirements of the crime of illegal business as stipulated in the criminal law, and did not meet the principle of modesty in the criminal law, so the defendant in the original trial, Wang x-jun, should be declared innocent.
（2） Judgment result:
On April 15, 2016, the People's Court of Linhe District, Bayannur City, Inner Mongolia Autonomous Region issued a criminal judgment (2016) No.0802, which found that the defendant Wang X Jun was guilty of illegal business, sentenced to one year of imprisonment, two years of probation, and a fine of 20000 yuan;The illegal profit of RMB 6000 returned by the defendant Wang Xjun shall be turned over to the state treasury by the investigation organ.On December 16, 2016, the Supreme People's Court made the retrial decision (2016) No. 6 of the Supreme People's Court, instructing the Bayannur Intermediate People's Court of Inner Mongolia Autonomous Region to retrial the case.The Intermediate People's Court of Bayannur City, Inner Mongolia Autonomous Region made the criminal judgment (2017) N08 XZ No. 1 on February 14, 2017:
1、 The Criminal Judgment (2016) N0802CH54 of the People's Court of Linhe District, Bayannur City, Inner Mongolia Autonomous Region is revoked;
2、 The original trial defendant Wang Xjun is innocent.
（3） Judgment gist:
1. The application of "other illegal business operations that seriously disrupt the market order" as stipulated in Item 4 of Article 225 of the Criminal Law shall be judged according to whether the relevant acts have the same social harmfulness, criminal illegality and criminal punishment necessity as the illegal business operations as stipulated in the first three items of Article 225 of the Criminal Law.
2. To judge whether a business operation that violates the relevant provisions of administrative management constitutes a crime of illegal business operation, we should consider whether the business operation is a serious disruption of market order.Although violating the relevant provisions of administrative management, but not seriously disrupting the market order, the business behavior should not be identified as the crime of illegal business.
The Intermediate People's Court of Bayannur City, Inner Mongolia Autonomous Region held in the retrial that the fact that the defendant in the original trial, Wang Xjun, who was identified in the original judgment, did not handle the grain purchase permit and the industrial and commercial business license to buy and sell corn during the period from November 2014 to January 2015 was clear, and his behavior violated the relevant provisions of the national grain circulation management at that time, but did not reach the degree of harm that seriously disrupted the market order,It does not have the social harmfulness, criminal illegality and the necessity of criminal punishment that are equivalent to the crime of illegal business operation stipulated in Article 225 of the Criminal Law, and does not constitute the crime of illegal business operation.In the original trial judgment, it was found that Wang x-jun constituted the crime of illegal business, and the opinion that Wang x-jun's behavior of buying and selling corn without a license did not constitute the crime of illegal business proposed by the procuratorial organ was established. The opinion that Wang x-jun's behavior proposed by the defendant in the original trial and his defender did not constitute a crime was established.
