Court: Constituting the Crime of Illegal
Operation
[Case Review]
The defendants Chen and Sun are a couple. They jointly operates a
grocery store. Since many customers asked if there were any fireworks for sale,
it dawned on the couple that they could sell fireworks and firecrackers to make
money. Afterwards, without a fireworks business (retail) license, the couple
drove their vehicle to purchase fireworks and firecrackers and stored them in a
rented house. In December 2019, the police seized 254 boxes of various types of
fireworks and firecrackers with an appraised total value of RMB 67,431 on the
spot in the rented house.
[Case Study]
Recently, Chongming District People¡¯s Court of Shanghai
(hereinafter the ¡°Court¡±) heard the case in public and made the judgment in
court. The Court held that the defendant Chen who illegally operated fireworks
and firecrackers without permit in violation of state stipulations committed
the crime of illegal operation and should be punished according to law. The
defendants Chen and Sun committed a joint a crime, in which Chen was the
principal criminal and Sun was the accessory criminal who should be given
lighter punishment in accordance with law. The defendants Chen and Sun
confessed, pleaded guilty and accepted punishment, so they should be given
lighter punishment.
Based on the facts, nature, circumstances and degree of harm to
the society of the defendants¡¯ crime and in accordance with the relevant
provisions of the Criminal Law of the
People¡¯s Republic of China and the Criminal
Procedure Law of the People¡¯s Republic of China, the Court sentenced the
defendant Chen to six years in prison for the crime of illegal operation with a
probation period of one year and a fine of RMB 6000, and sentenced defendant
Sun to four months of detention with four months¡¯ probation and a fine of RMB
5,000.
[Relevant Laws]
Criminal
Law of the People¡¯s Republic of China
Article 225
Whoever, in violation of the state stipulations, has one of the
following illegal business acts, which disrupts the market order and when the
circumstances are serious, is to be sentenced to not more than five years of
fixed-term imprisonment, criminal detention, and may in addition or exclusively
be sentenced to a fine not less than 100 percent and not more than 500 percent
of his illegal income and, where the circumstances are particularly serious, be
sentenced to not less than five years of fixed-term imprisonment and a fine not
less than 100 percent and not more than 500 percent of his illegal income or
the confiscation of his property:
(1) engage in the monopoly business or monopolized commodities
stipulated in laws and administrative regulations, or other commodities whose
purchase and sale are controlled, without permission;
(2) purchase and sell import-export licenses, certificates of
origin, and operation permits or approved documents stipulated by other laws
and administrative regulations;
(3) illegally operating the business of securities, futures or
insurance, or illegally engaging in fund payment and settlement business,
without the approval of the relevant competent departments of the state;
(4) conduct other illegal business activities that seriously
disrupt the market order.
(Written by Yu Siyuan, Chongming District People¡¯s Court of Shanghai)
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