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People's Procuratorate of Ningbo City, Zhejiang Province v. Ningbo Libaidai Investment Consulting Co., Ltd., Chen Zongwei, Wang Wenze and Zheng Chunzhong (A case about illegal business operation)
浙江省宁波市人民检察院诉宁波利百代投资咨询有限公司、陈宗纬、王文泽、郑淳中非法经营案
【法宝引证码】

People’s Procuratorate of Ningbo City, Zhejiang Province v. Ningbo Libaidai Investment Consulting Co., Ltd., Chen Zongwei, Wang Wenze and Zheng Chunzhong (A case about illegal business operation)
(A case about illegal business operation)
浙江省宁波市人民检察院诉宁波利百代投资咨询有限公司、陈宗纬、王文泽、郑淳中非法经营案

People's Procuratorate of Ningbo City, Zhejiang Province v. Ningbo Libaidai Investment Consulting Co., Ltd., Chen Zongwei, Wang Wenze and Zheng Chunzhong
(A case about illegal business operation)

 

浙江省宁波市人民检察院诉宁波利百代投资咨询有限公司、陈宗纬、王文泽、郑淳中非法经营案

 【裁判摘要】

 行为人为非法经营证券业务而设立公司,超越工商行政管理部门核准登记的公司经营范围,未经法定机关批准,向不特定的社会公众代理销售非上市股份有限公司的股权(股票),其行为属未经批准非法经营证券业务、扰乱国家证券市场的非法经营行为,情节严重的,应当以非法经营罪定罪处罚。
BASIC FACTS 

Public Prosecution Organ: People's Procuratorate of Ningbo City, Zhejiang Province.

 公诉机关:浙江省宁波市人民检察院。
Defendant: Ningbo Libaidai Investment Consulting Co., Ltd., domiciled at: Kaiming Road, Haishu District, Ningbo City, Zhejiang Province. 被告单位:宁波利百代投资咨询有限公司。
Defendant: Chen Zongwei, male, 42, former general manager of Ningbo Libaidai Investment Consulting Co., Ltd. 被告人:陈宗纬。
Defendant: Wang Wenze, male, 31, former chairman of the board of directors of Ningbo Libaidai Investment Consulting Co., Ltd. 被告人:王文泽。
Defendant: Zheng Chunzhong, male, 27, former deputy general manager of Ningbo Libaidai Investment Consulting Co., Ltd. 被告人:郑淳中。
PROCEDURAL POSTURE来自北大法宝 
The People's Procuratorate of Ningbo City, Zhejiang Province instituted a public prosecution in the Intermediate People's Court of Ningbo City, Zhejiang Province against Ningbo Libaidai Investment Consulting Co., Ltd. (hereinafter referred to as “Libaidai Company”), Cheng Zongwei, Wang Wenze and Zheng Chunzhong for the crime of illegal business operation. 浙江省宁波市人民检察院以被告单位宁波利百代投资咨询有限公司(以下简称利百代公司)及被告人陈宗纬、王文泽、郑淳中犯非法经营罪,向浙江省宁波市中级人民法院提起公诉。
According to the indictment, from December 2003, the defendants, Chen Zongwei, Wang Wenze and Zheng Chunzhong, as the general manager, chairman of the board of directors and deputy general manager of Libaidai Company respectively, instructed the salespersons of this company to market stocks of unlisted joint-stock companies by falsely claiming that such stocks would be listed soon, i.e. to illegally sell stocks of unlisted joint-stock companies. By the end of November 2004, Libaidai Company had sold 229,000 shares of Shaanxi Yangguang Biological Engineering Co., Ltd. to 30 persons (Chen Jianhong et al.), 218,000 shares of Westerasoft Co., Ltd. to 39 persons (Chen Yuqin et al.), 908,500 shares of Xi'an Shengwei Technology Industry Co., Ltd. to 87 persons (Shao Haiping et al.) and 533,000 shares of Shaanxi Zhongke Space Agricultural Development Co., Ltd. to 60 persons (Wang Baolan et al.). In total, Libaidai Company had sold 1,888,500 shares of unlisted companies with the gross sales revenue up to 6,570,000 yuan. To obtain illegal gains, Libaidai Company illegally operated the securities business without the approval of the relevant authority of China, which constituted the crime of illegal business operation. As the principal directly in charge and directly liable persons, Chen Zongwei, Wang Wenze and Zheng Chunzhong also committed the crime of illegal business operation, together with Libaidai Company. The public prosecution organ requested the court to punish them according to law. 起诉书指控:被告人陈宗纬、王文泽、郑淳中在分别担任被告单位利百代公司总经理、董事长、副总经理期间,自2003年 12月起,指令该公司业务员推销未上市股份有限公司的股票,并谎称所推销的原始股、股票短期内即可上市,非法从事未上市股份有限公司的股票销售业务。至2004年 11月底,利百代公司向陈建红等30人销售陕西阳光生物工程股份有限公司股票22.9万股;向陈毓琴等39人销售西部世纪软件股份有限公司股票21.8万股;向邵海萍等 87人销售西安圣威科技实业股份有限公司股票90.85万股;向王宝兰等60人销售陕西中科航天农业发展股份有限公司股票 53.3万股。总计销售未上市股份有限公司股票达188.85万股,销售总金额达人民币 657万余元。利百代公司为牟取非法利益,未经国家有关主管部门批准非法经营证券业务,其行为已构成非法经营罪,且系单位犯罪;陈宗纬、王文泽、郑淳中作为利百代公司单位犯罪行为直接负责的主管人员和直接责任人员,其行为亦构成非法经营罪。提请法院依法惩处。
The defendants, Libaidai Company, Chen Zongwei, Wang Wenze, Zheng Chunzhong and their defenders all argued that: the defendants were engaged in normal property right (equity) transfer agency business, instead of securities business. The transfer of stocks of unlisted companies was not illegal securities operation. According to law, shareholders of unlisted companies were also entitled to transfer their shares in the unlisted companies, and shares of unlisted companies could be traded on property right trading institutions that were legally established. Libaidai Company disclosed information about and promoted the transfer of stocks of unlisted companies involved in this case as authorized by them, which were lawful business operations. After Libaidai Company was punished, it added “agent in application procedures for property right transactions” to its business scope upon approval of the industrial and commercial administrative authority. Based on its trust in the industrial and commercial administrative authority, it continued to be engaged in the equity transfer agency business. In conclusion, the defendants' conduct did not constitute the crime of illegal business operation, and the charges filed by the public prosecution organ were unfounded. 被告单位利百代公司,被告人陈宗纬、王文泽、郑淳中及其辩护人均辩称:被告单位及三被告人从事的是正常的产权(股权)代理转让业务,并非经营证券业务,从事非上市股份有限公司的股权转让业务并不等于非法经营证券业务。非上市股份有限公司按照法律规定也有权转让股权,也可以在依法成立的产权交易机构挂牌。被告单位经授权后为涉案非上市股份有限公司披露信息、推介转让股权,是合法的经营行为。被告单位被处罚后,又经工商管理部门核准增加了“代办产权交易申请手续”的经营范围,继续从事股权代理转让业务,是基于对工商管理部门的信赖。综上,被告单位及三被告人的行为不构成非法经营罪,公诉机关指控的罪名不能成立。
Through trial at first instance, the Intermediate People's Court of Ningbo City found that: 宁波市中级人民法院一审查明:
In December 2003, to conduct the sales agency business for stocks of unlisted companies, the defendants, Chen Zongwei, Wang Wenze and Zheng Chunzhong, formed and registered Libaidai Company, and respectively served as the general manager, chairman of the board of directors and deputy general manager of the company. The business scope of Libaidai Company as approved by the industrial and commercial administrative authority was: investment planning and consulting for industrial projects; accounting consultation; enterprise management consulting; joint-stock system reform of enterprises; and system transformation planning and consulting for enterprises. 2003年12月,被告人陈宗纬、王文泽、郑淳中为从事非上市股份有限公司股票代理销售业务,注册设立被告单位利百代公司,陈宗纬、王文泽、郑淳中分别担任该公司的总经理、董事长、副总经理。该公司经工商管理部门核准的经营范围为:实业项目投资策划、咨询,会计业务咨询,企业管理咨询,企业股份制改造,企业转制策划、咨询。
After the establishment of Libaidai Company, Chen Zongwei, Wang Wenze and Zheng Chunzhong started to vicariously sell the stocks of four unlisted companies, Shaanxi Yangguang Biological Engineering Co., Ltd., Westerasoft Co., Ltd., Xi'an Shengwei Technology Industrial Co., Ltd. and Shaanxi Zhongke Space Agricultural Development Co., Ltd. through Nanjing Congtai Investment Management Co., Ltd. which was formed by Taiwanese investors including Zhou Wenlong, Xiao Yuancai, et al. After consultations, Libaidai Company and Nanjing Congtai Investment management Co., Ltd. determined the external trading price per share and internal settlement price per share. The three defendants falsely claimed that the shares of unlisted companies were to be listed soon with a yield, and instructed the salespersons of the company to sell these stocks of unlisted companies to the general public. On March 30, 2004, the Administration of Industry and Commerce of Ningbo City ordered Libaidai Company to rectify its stock sales agency business which was beyond the authorized business scope, and imposed a fine of 10,000 yuan on it. In April of the same year, Libaidai Company added “agent in application procedures for property right transactions” to its business scope upon approval, and continued to sell as an agent the stocks of unlisted companies. 被告单位利百代公司成立后,被告人陈宗纬、王文泽、郑淳中即通过由台湾人周文龙、萧元才等人设立的南京聪泰投资管理有限公司,为在陕西省设立的陕西阳光生物工程股份有限公司、西部世纪软件股份有限公司、西安圣威科技实业股份有限公司、陕西中科航天农业发展股份有限公司等4家非上市股份有限公司代理销售股票,并与南京聪泰投资管理公司协商确定了每股对外销售价格及内部交割价。三被告人对外谎称上述非上市股份有限公司的股票短期内即可上市并可获取高额的原始股回报,指使其公司业务员向不特定社会群众推销上述非上市股份有限公司的股票。2004年3月30日,宁波市工商行政管理局以该公司从事此项业务超出核准登记的经营范围为由,作出责令改正并罚款人民币1万元的处罚决定。同年4月,该公司经核准增加了“代办产权交易申请手续”的经营范围,继续代理销售上述非上市股份有限公司的股票。
By the end of November 2004, under the control of Chen Zongwei, Wang Wenze and Zheng Chunzhong, Libaidai Company had sold 229,000 shares of Shaanxi Yangguang Biological Engineering Co., Ltd. to 30 persons (Chen Jianhong et al.) at 3.2 yuan per share, 218,000 shares of Westerasoft Co., Ltd. to 39 persons (Chen Yuqin et al.) at 3 yuan per share, 908,500 shares of Xi'an Shengwei Technology Industrial Co., Ltd. to 87 persons (Shao Haiping et al.) at 3.9 to 4 yuan per share, and 533,000 shares of Shaanxi Zhongke Space Agricultural Development Co., Ltd. to 60 persons (Wang Baolan et al.) at 3 to 3.2 yuan per share. The total sales amount of the above shares was over 6,570,000 yuan, and Libaidai Company made a profit of over 2,400,000 yuan. 至2004年11月底,被告单位利百代公司在被告人陈宗纬、王文泽、郑淳中操控下,以每股人民币3.2元的价格向陈建红等30人销售陕西阳光生物工程股份有限公司股票22.9万股;以每股人民币3元的价格向陈毓琴等39人销售西部世纪软件股份有限公司股票21.8万股;以每股人民币3.9-4元的价格向邵海萍等87人销售西安圣威科技实业股份有限公司股票 90.85万股;以每股人民币3-3.2元的价格向王宝兰等60人销售陕西中科航天农业发展股份有限公司股票53.3万股。上述股票销售总金额达人民币657万余元,被告单位利百代公司从中获利人民币240余万元。
After its formation, Libaidai Company was not engaged in any other business. 被告单位利百代公司自设立后未从事其他业务。
The above facts were sufficiently proved by the following evidence: the testimonies of over 100 stock buyers (Jin Jianzhou et al.) and Chen Yaping, an employee of Libaidai Company; the sub-ledgers and receipt and book-keeping vouchers of Libaidai Company; a list of stock buyers and sales performance statements; the equity certificate cards of stock buyers; the industrial and commercial registration data of Libaidai Company, Nanjing Congtai Investment Management Co., Ltd. and the four unlisted companies involved in this case; the confessions of Chen Zongwei, Wang Wenze and Zheng Chunzhong. 以上事实,有金建宙等100余名购股投资人、被告单位利百代公司员工陈亚萍等人的证言,被告单位的公司明细账册、收款及记账凭证、购股人员名单及业绩表,各购股投资人的股权证持有卡,利百代公司、南京聪泰投资管理公司以及涉案4家非上市股份有限公司的工商登记等相关资料,以及被告人陈宗纬、王文泽、郑淳中的供述等证据在案,足以认定。
The focal disputes in this case were: (1) whether the conduct of the defendants, Libaidai Company, Chen Zongwei, Wang Wenze and Zheng Chunzhong, constituted the crime of illegal business operation; and (2) if yes, whether it was a crime committed by an entity. 本案的争议焦点是:一、被告单位利百代公司及被告人陈宗纬、王文泽、郑淳中在本案中的行为是否构成非法经营罪;二、如果构成非法经营罪,是否应认定为单位犯罪。
Upon trial at first instance, the Intermediate People's Court of Ningbo City considered that: 宁波市中级人民法院一审认为:
1. Based on the facts of this case, the conduct of the defendants, Libaidai Company, Chen Zongwei, Wang Wenze and Zheng Chunzhong, constituted the crime of illegal business operation, punishable by law. 一、根据本案事实,被告单位利百代公司及被告人陈宗纬、王文泽、郑淳中的行为已经构成非法经营罪,应当依法惩处。
First, the conduct of Libaidai Company, Chen Zongwei, Wang Wenze and Zheng Chunzhong violated the laws, regulations and policies of China concerning the administration of securities business. 首先,被告单位利百代公司及被告人陈宗纬、王文泽、郑淳中的行为违反了我国关于证券经营管理的法律、法规和政策。
The securities business licensing system was adopted in the securities market of China. Any public offering of securities must meet the conditions specified in laws and administrative regulations, and be reported to the securities regulatory authority under the State Council or the department authorized by the State Council for approval. Without approval according to law, no entity or individual should make any public offering of securities. The General Office of the State Council and the China Securities Regulatory Commission had issued several documents to require relentless crackdown on violations and crimes committed in the name of securities and futures investment. Whoever illegally conducted securities and futures transactions beyond its authorized business scope or illegally conducted securities and futures transactions in a disguised form should be investigated and prosecuted on charge of illegal business operation. The China Securities Regulatory Commission made it clear in its document that whoever induced investors to purchase stocks of unlisted companies for agency fees and other fees by promising the upcoming listing of these unlisted companies with a high ROI or by fabricating false business performance and promising a high ROI should be deemed an illegal agent for the trading of stocks of unlisted companies. Illegal issuance of stocks and illegal securities business operation seriously harmed the social stability and financial safety. The main forms of such conduct were as follows: (1) a company induced the general public to purchase the so-called “original shares” of the company by falsely claiming that the company was soon to go pubic at home or abroad or its stock issue had been approved by the government; (2) an intermediary institution illegally traded or acted for others to trade stocks of unlisted companies without the approval of statutory authorities in the name of an “investment consulting institution”, “property right broker” or “representative office of a foreign capital company or investment company”; and (3) the general public was defrauded of money by the offenders in the name of securities investment with a high return. 我国证券市场实行证券业务许可制度。公开发行证券,必须符合法律、行政法规规定的条件,并依法报国务院证券监督管理机构或者国务院授权的部门核准,未经依法核准,任何单位和个人不得公开发行证券。国务院办公厅、证监会亦多次明文要求严厉打击以证券期货投资为名进行的违法犯罪活动,对超出核准的经营范围、非法从事或变相非法从事证券期货交易活动的,以涉嫌非法经营罪立案查处。证监会曾发文明确规定,以非上市公司将要上市并可以获得高额的原始股回报等为幌子,或者编造虚假的公司经营业绩和许诺丰厚的投资回报率等手段,诱骗投资者购买非上市公司股票,从而进行收取代理费等费用的违法活动,属于非法代理买卖非上市公司股票。非法发行股票和非法经营证券业务的行为严重危害社会稳定和金融安全。其主要形式,一是编造公司即将在境内外上市或股票发行获得政府批准等虚假信息,诱骗社会公众购买所谓“原始股”;二是非法中介机构以“投资咨询机构”、“产权经纪公司”、“外国资本公司或投资公司驻华代表处”的名义,未经法定机关批准,向社会公众非法买卖或代理买卖未上市公司股票;三是不法分子以证券投资为名,以高额回报为诱饵,诈骗群众钱财。
In this case, without the securities business permit issued by the securities regulatory authority under the State Council or the department authorized by the State Council, Libaidai Company acted as an agent to sell stocks of unlisted companies to the general public, and stock split was made. In its business operations, Libaidai Company induced investors to purchase stocks of unlisted companies for agency fees and other fees by falsely claiming that the unlisted companies were soon to go public and the investors could receive a high return from the original shares. Its conduct should be deemed illegal agency for trading tocks of unlisted companies. The business scope of Libaidai Company authorized by the industrial and commercial administrative authority was: investment planning and consulting for industrial projects, accounting consultation, enterprise management consulting, joint-stock system reform of enterprises and system transformation planning and consulting for enterprises, and did not include the securities business. Libaidai Company added the business of “agent in application procedures for property right transactions” to its business scope upon approval of the industrial and commercial administrative authority after it was punished by the same authority for operations beyond the authorized business scope, but according to the relevant provisions, the “agent in application procedures for property right transactions” meant the service of applying to a property right trading institution for a property right transaction in the name of the property right owner as authorized by the property right owner and did not include the marketing of the property right transaction. According to the relevant provisions, a property right transaction broker referred to an intermediary institution holding the qualification for property right transactions and acting for enterprises to conduct property right transactions, and its personnel engaged in property right transactions must hold the relevant qualifications for brokerage. Libaidai Company, which was not qualified for property right transactions, was not a property right transaction broker, and the personnel of Libaidai Company including Chen Zongwei, Wang Wenze and Zheng Chunzhong did not have the relevant qualifications for brokerage. Without authorization or permission to conduct securities business and without the qualification as a property right transaction broker, Libaidai Company was illegally engaged in the securities business beyond its business scope approved by the industrial and commercial administrative authority. Its conduct should be deemed illegal business operation. 本案中,被告单位利百代公司并未取得国务院证券监督管理机构或者国务院授权的部门核发的证券业务许可证,但擅自公开向社会不特定群众代理销售非上市股份有限公司的股票,且系拆细发行。在经营活动中,该公司谎称涉案非上市股份有限公司将要上市、投资人可以获得高额原始股回报,诱骗投资者购买涉案非上市股份有限公司的股票,从中收取代理费等费用,其行为属于非法代理买卖非上市公司股票的违法行为。利百代公司经工商管理部门核准的经营范围是实业项目投资策划咨询、会计业务咨询、企业管理咨询、企业股份制改造、企业转制策划咨询,并不包括证券经营业务。该公司在因超范围经营被工商行政管理部门处罚后,虽申请并经工商行政管理部门核准增加了“代办产权交易申请手续”的经营范围,但依照有关规定,“代办产权交易申请手续”是指接受产权所有人委托,以产权所有人的名义向产权交易机构提出产权交易申请的服务业务,不涉及其他产权交易营销行为。根据有关规定,产权交易经纪机构是指具有产权交易从业资格,接受企业委托代理产权交易的中介机构,且从事产权交易业务的人员必须具有相应的经纪资格。利百代公司不具有产权交易的从业资格,并非产权交易经纪机构,被告人陈宗纬、王文泽、郑淳中等利百代公司人员亦不具有相应的经纪资格。利百代公司超出工商行政管理部门核准的经营范围,既未被授权或许可经营证券业务,又不具备产权交易经纪机构资格,而非法从事证券交易活动,其行为属于非法经营。
Second, the conduct of Libaidai Company, Chen Zongwei, Wang Wenze and Zheng Chunzhong constituted the crime of illegal business operation. 其次,被告单位利百代公司及被告人陈宗纬、王文泽、郑淳中的行为构成非法经营罪。
According to Article 225 of the Criminal Law of the People's Republic of China (hereinafter referred to as “Criminal Law”), whoever was engaged in the trade or sale of monopolized goods or other goods restricted from purchase and sale as prescribed in the relevant laws and administrative regulations without permission, engaged in the purchase and sale of import-export licenses, certificates of origin and other business permits or approval documents prescribed by laws and administrative regulations or engaged in other serious illegal business activities that greatly disrupted the market order should be deemed to have committed the crime of illegal business operation. As one may see, the conduct of Libaidai Company, Chen Zongwei, Wang Wenze and Zheng Chunzhong was illegal business operation. In total, the defendants vicariously sold 1,888,500 shares of four unlisted companies to 216 persons, with a sales amount of over 6,570,000 yuan, and illegally made profits of more than 2,400,000 yuan. In terms of consequences, the stocks of unlisted companies purchased by the investors in this case may very likely become worthless because such unlisted companies may refuse to recognize them. So, it may be determined that the illegal business operation of defendants was serious with widespread damage and great harm to the society, and constituted the crime of illegal business operation. The defendants should be punished for the crime. 根据《中华人民共和国刑法》(以下简称刑法谁敢欺负我的人)第二百二十五条的规定,非法经营罪是指未经许可经营法律、行政法规规定的专营、专卖物品或者其他限制买卖的物品,买卖进出口许可证、进出口原产地证明以及其他法律、行政法规规定的经营许可证或者批准文件等严重扰乱市场秩序、情节严重的非法经营行为。如前所述,本案中被告单位利百代公司及被告人陈宗纬、王文泽、郑淳中的行为属于非法经营行为。被告单位及三被告人共计向216人代理销售了4家非上市股份有限公司的股票,总计销售未上市股份有限公司股票达188.85万股,销售总金额达人民币657万余元,从中非法获利240余万元。从后果看,涉案购股投资人所购买的涉案非上市股份有限公司的股票,最终能否得到涉案非上市股份有限公司的认可都存在很大问题,极有可能就是废纸一张。可以认定,被告单位及三被告人的非法经营行为情节严重,危害波及面广,社会危害性大,已经构成非法经营罪,应依法追究刑事责任。
2. The crime in this case was not a crime committed by an entity. 二、本案不属于单位犯罪。
According to the facts of the case, Chen Zongwei, Wang Wenze and Zheng Chunzhong, established Libaidai Company for the purpose of illegally selling stocks of unlisted companies as an agent. The illegal business operation involved in this case was the only business that Libaidai Company conducted after its establishment. According to Article 2曾经瘦过你也是厉害 of the Interpretation of the Supreme People's Court on the Relevant Issues concerning the Specific Application of Law in Trying Cases about Crimes Committed by Entities, where a company, enterprise or public institution, which was formed by individuals to conduct illegal or criminal activities, committed a crime, or a company, enterprise or public institution was mainly engaged in criminal activities after its establishment, the case shall not be treated as a case about a crime committed by an entity. In this case, the three defendants established Libaidai Company to carry out illegal business operation, and Libaidai Company was mainly engaged in illegal business operation after its establishment. Therefore, this case should be deemed a case about a crime committed by natural persons rather than an entity. 根据本案事实,被告人陈宗纬、王文泽、郑淳中为非法从事非上市股份有限公司股票代理销售业务,注册设立被告单位利百代公司。利百代公司成立后,除从事涉案非法经营犯罪行为外,再无其他任何经营行为。根据最高人民法院《关于审理单位犯罪案件具体应用法律有关问题的解释》第二条爱法律,有未来的规定,个人为进行违法犯罪活动而设立的公司、企业、事业单位实施犯罪的,或者公司、企业、事业单位设立后,以实施犯罪为主要活动的,不以单位犯罪论处。因此,三被告人为非法经营证券业务而设立利百代公司,且利百代公司成立后以非法经营证券业务为主要活动,故本案不能以单位犯罪论处,应当认定为自然人犯罪。
In conclusion, the defendants, Chen Zongwei, Wang Wenze and Zheng Chunzhong, established Libaidai Company to illegally conduct the securities business. In the business operation of Libaidai Company, the defendants went beyond the business scope approved and registered by the industrial and commercial administrative authority, and vicariously transferred stocks of unlisted companies to the general public without the approval of the statutory authority. After Libaidai Company was punished by the industrial and commercial administrative authority for operations beyond the authorized business scope, the defendants continued to illegally conduct such securities business on the excuse of having added “agent in application procedures for property right transactions” to the company's business scope. The defendants did not stop their illegal business operations even after the administrative authorities in law enforcement warned them about their unauthorized securities business. The conduct of the defendants seriously disrupted the securities market of China, and constituted the crime of illegal business operation. The charges filed by the public prosecution organ against them were correct, and the arguments of the three defendants and their defenders were baseless and should not be adopted. In this case, the three defendants established Libaidai Company to carry out illegal business operation, and Libaidai Company was only engaged in illegal business operation after its establishment. For this reason, this case should be treated as a case about a crime committed jointly by natural persons rather than an entity. The accusation of a crime committed by an entity made by the public prosecution organ was wrong, and should be redressed. As Zheng Chunzhong played a relatively insignificant role in the joint crime, he may be given a lighter punishment. In accordance with Article 225(3), Article 25.1 and Article 64 of the Criminal Law, the Intermediate People's Court of Ningbo City rendered a sentence on February 8, 2007 as follows: 综上,被告人陈宗纬、王文泽、郑淳中为非法经营证券业务而成立被告单位利百代公司,在经营中超越工商行政管理部门核准登记的经营范围,在未经法定机关批准的情况下,擅自公开向不特定的社会公众代理转让非上市股份有限公司的股权,在因超范围经营被工商行政管理部门处罚后,又以增加“代办产权交易申请手续”的经营范围为由,继续超范围非法经营证券业务,在有关行政执法部门指出其无权经营证券业务后仍不停止该非法经营活动,扰乱国家证券市场,情节严重,其行为均已构成非法经营罪,公诉机关指控的罪名成立,三被告人及其辩护人的辩护理由不成立,不予采纳。三被告人为非法经营证券业务而设立利百代公司,且利百代公司成立后也仅仅从事非法经营活动,故本案不能以单位犯罪论处,应当认定为自然人共同犯罪,公诉机关关于单位犯罪的指控不成立,应予纠正。郑淳中在共同犯罪中所起作用相对较小,故对其可酌情从轻处罚。据此,宁波市中级人民法院依照刑法第第二百二十五条第(三)项、第二十五条第一款、第六十四条之规定,于2007年2月8日判决:
1. The defendant, Chen Zongwei, should be sentenced to fixed-term imprisonment of five years and six months and a fine of 2,500,000 yuan for the crime of illegal business operation; 一、被告人陈宗纬犯非法经营罪,判处有期徒刑五年六个月,并处罚金人民币 250万元;
2. The defendant, Wang Wenze, should be sentenced to fixed-term imprisonment of five years and six months and a fine of 2,500,000 yuan for the crime of illegal business operation; 二、被告人王文泽犯非法经营罪,判处有期徒刑五年六个月,并处罚金人民币 250万元;
3. The defendant, Zheng Chunzhong, should be sentenced to fixed-term imprisonment of five years and a fine of 2,500,000 yuan for the crime of illegal business operation; and 三、被告人郑淳中犯非法经营罪,判处有期徒刑五年,并处罚金人民币250万兀。
4. The illicit gains from the crime should continue to be recovered. 四、犯罪违法所得之赃款予以继续追缴。
BASIC FACTS 
Chen Zongwei, Wang Wenze and Zheng Chunzhong appealed to the Higher People's Court of Zhejiang Province against the sentence of first instance, mainly on the following grounds: (1) in the business operation of Libaidai Company, the three appellants were engaged in the business of property right (equity) transfer agency according to the company's business scope including “agent in application procedures for property right transactions” as authorized by the industrial and commercial administrative authority, and therefore, did not surpass the business scope; (2) transferring stocks of unlisted companies as an agent was not a securities business operation; (3) the sentence of first instance held that the three appellants continued their illegal business operation even after the relevant administrative authority in law enforcement warned them about their operations beyond the business scope, which had no factual basis; and (4) the three appellants had no intent to commit the crime of illegal business operation. Accordingly, the appellants requested an acquittal from the court of second instance. In addition, Zheng Chunzhong and his defender claimed that Zheng Chunzhong as an employee of Libaidai Company played a minor or accessory role in the stock transfer involved in the case. Wang Wenze claimed that since adding “agent in application procedures for property right transactions” to the company's business scope was approved by the industrial and commercial administrative authority, he had a reasonable reliance on it and had no intent of illegal business operation. 陈宗纬、王文泽、郑淳中均不服一审判决,向浙江省高级人民法院提出上诉。其主要理由是:三上诉人在经营利百代公司中,依工商行政管理部门核准的“代办产权交易申请手续”的经营范围从事产权(股权)代理转让业务,不属超范围经营;代理转让非上市股份有限公司的股权不属从事证券业务;原审认定三上诉人在有关行政执法部门明确指出无权经营后仍不停止非法经营行为没有事实依据,三上诉人无非法经营的犯罪故意。据此请求宣告无罪。郑淳中及其辩护人还上诉称郑淳中只是利百代公司的一名员工,在涉案股权转让业务中只起次要或辅助作用。王文泽还上诉称工商行政管理部门核准利百代公司增加“代办产权交易申请手续”的经营范围,使其产生了合理信赖,其没有非法经营的犯罪故意。
During the trial at second instance, the Higher People's Court of Zhejiang Province affirmed the facts found in the trial at first instance. 浙江省高级人民法院经二审,确认了一审查明的事实。
Through trial at second instance, the Higher People's Court of Zhejiang Province considered that: 浙江省高级人民法院二审认为:
The securities market of China adopted a securities business licensing system. Without approval by the securities regulatory authority under the State Council or the relevant department authorized by the State Council, no one should carry out the securities business. The appellants, Chen Zongwei, Wang Wenze and Zheng Chunzhong, established Libaidai Company to vicariously transfer stocks of unlisted companies to the general public in the form of stock split without the approval of the statutory authority. Their conduct should be deemed illegal securities business operations, and constituted the crime of illegal business operation. The appeal ground of the three appellants and their defenders that transferring stocks of unlisted companies as an agent was not a securities business operation was unfounded and should not be adopted. The three appellants were engaged in the stock transfer agency for unlisted companies after establishing Libaidai Company, which was apparently beyond the business scope authorized and registered by the industrial and commercial administrative authority. After it was punished for operations beyond the authorized business scope, Libaidai Company added “agent in application procedures for property right transactions” to its business scope. However, this business only meant the service to apply to a property right trading institution for a property right transaction in the name of the property right owner as authorized by the property right owner and did not include the marketing of property right transactions. According to the statements issued by Shi Minwei, Hu Jian and Fan Zhihua of the Administration of Industry and Commerce of Ningbo City and Zheng Kangbin of Ningbo Office of the China Securities Regulatory Commission, which were adduced and cross-examined in the trial at first instance, in a coordination meeting held in May 2004, the relevant administrative authority in law enforcement pointed out to the three appellants: even if Libaidai Company added “agent in application procedures for property right transactions” to its business scope, transferring stocks of unlisted companies as an agent was still beyond its authorized business scope; and to conduct such a business, it must obtain an approval from the securities regulatory authority. However, the three appellants continued to operate this business. It could be determined thereby that the three appellants had the criminal intent of illegal business operation. The appeal grounds of three appellants and their defenders that the sentence of first instance had no factual basis to hold that the three appellants continued their illegal business operation even after the relevant administrative authority in law enforcement warned them about their operations beyond the business scope, that Libaidai Company did not operate beyond its authorized business scope after adding “agent in application procedures for property right transactions” to its business scope and that they did not have the criminal intent of illegal business operation were all unfounded and should not be supported. Although the position and functions of Zheng Chunzhong as the deputy general manager of Libaidai Company were lower than those of Chen Zongwei and Wang Wenze in the joint crime, he did not played an obviously minor or accessory role. Zheng Chunzhong should not be deemed an accessory, and a lighter punishment was already given to him in the trial at first instance. The appeal ground of Zheng Chunzhong and his defender that Zheng Chunzhong merely played a minor or accessory role in the joint crime was unfounded and should not be adopted. 我国证券市场实行证券业务许可制度,未经国务院证券监督管理机构或者国务院授权的部门核准,不得经营证券业务。上诉人陈宗纬、王文泽、郑淳中设立利百代公司,未经法定机关批准,擅自接受委托向不特定社会群众代理转让非上市股份有限公司股权,且系拆细转让,属非法经营证券业务,其行为已构成非法经营罪。三上诉人及其辩护人关于代理转让非上市股份有限公司股权不属从事证券业务的上诉理由不能成立,不予采纳。三上诉人在利百代公司成立后从事非上市股份有限公司股权代理转让业务,明显超出了工商行政管理部门核准登记的经营范围。在因超范围经营被处罚后,该公司申请增加了“代办产权交易申请手续”的经营范围,但该项业务仅指接受产权所有人委托,以产权所有人的名义向产权交易机构提出产权交易申请,不包括非上市股份有限公司股权代理转让业务。根据一审庭审中出示并经质证的宁波市工商行政管理局施民伟、胡坚、范治华及证监会宁波监管局郑康斌出具的情况说明,在2004年5月召开的协调会上,有关行政执法部门向三上诉人指出:利百代公司在增加“代办产权交易申请手续”的经营范围后,经营非上市股份有限公司股权代理转让业务仍属超范围经营,要经营该项业务必须经有关证券监管部门批准。但在此后,三上诉人继续经营该项业务。据此可以认定,三上诉人具有非法经营的犯罪故意。三上诉人及其辩护人关于原审认定三上诉人在有关行政执法部门明确指出无权经营证券业务后仍不停止该经营行为没有证据、利百代公司增加了“代办产权交易申请手续”的经营范围后没有超范围经营及其没有非法经营的犯罪故意的上诉理由均不能成立,不予采纳。作为利百代公司的副总经理,郑淳中在共同犯罪中的地位、作用虽相对次于陈宗纬、王文泽,但尚不属明显起次要或辅助作用,不属于从犯,一审已对其酌情从轻处罚。郑淳中及其辩护人关于郑淳中在共同犯罪中只起次要或辅助作用的上诉理由不能成立,不予采纳。
JUDGMENT 
In conclusion, the Higher People's Court of Zhejiang Province held that in the sentence of first instance, the facts found were clear, the evidence was sufficient and hard, the application of law was correct, the conviction and sentencing were proper, and the trial procedures were legal. The appeal grounds of Chen Zongwei, Wang Wenze and Zheng Chunzhong and their defenders were untenable. In accordance with Article 189 (1) of the Criminal Procedure Law of the People's Republic of China, the Higher People's Court of Zhejiang Province ruled on June 14, 2007 as follows: 据此,浙江省高级人民法院认为一审判决认定事实清楚,证据确实、充分,适用法律正确,定罪量刑适当,审判程序合法,上诉人陈宗纬、王文泽、郑淳中及其辩护人的上诉理由均不成立。依照《中华人民共和国刑事诉讼法》第一百八十九条第(一)项之规定,于2007年6月14日裁定如下:
To dismiss the appeal of Chen Zongwei, Wang Wenze and Zheng Chunzhong and uphold the original sentence. 驳回上诉人陈宗纬、王文泽、郑淳中的上诉,维持原判。
This ruling should be final.

 本裁定为终审裁定。
 

     
     
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