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Guiding Case No. 97: People v. Wang Lijun (case of substituting acquittal for conviction of illegal business operation upon retrial)
指导案例97号:王力军非法经营再审改判无罪案
【法宝引证码】

Guiding Case No. 97: People v. Wang Lijun (case of substituting acquittal for conviction of illegal business operation upon retrial) 指导案例97号:王力军非法经营再审改判无罪案
(Issued on December 19, 2018 as deliberated and adopted by the Judicial Committee of the Supreme People's Court) (最高人民法院审判委员会讨论通过2018年12月19日发布)
Guiding Case No. 97 指导案例97号
Keywords: 关键词
criminal; crime of illegal business operation; serious disruption of the market order; social harm; criminal wrong; necessity of criminal punishment 刑事/非法经营罪/严重扰乱市场秩序/社会危害性/刑事违法性/刑事处罚必要性
Key Points of Judgment 裁判要点
1. The application of the provision of Item 4 of Article 225 of the Criminal Law: "conduct other illegal business activities that seriously disrupt the market order" shall rely on whether the relevant activity is of social harm, criminal wrong and necessity of criminal punishment equivalent to the illegal business activities as mentioned in the first three items of Article 225 of the Criminal Law. 1.对于刑法二百二十五条第四项规定的“其他严重扰乱市场秩序的非法经营行为”的适用,应当根据相关行为是否具有与刑法二百二十五条前三项规定的非法经营行为相当的社会危害性、刑事违法性和刑事处罚必要性进行判断。
2. In judging whether a business activity in violation of the rules relating to government administration constitutes the crime of illegal business operation, whether the business activity gives rise to a serious disruption of the market order shall be taken into account. A business activity in violation the rules relating to government administration, resulting in no serious disruption of the market order, need not be determined as a crime of illegal business operation. 2.判断违反行政管理有关规定的经营行为是否构成非法经营罪,应当考虑该经营行为是否属于严重扰乱市场秩序。对于虽然违反行政管理有关规定,但尚未严重扰乱市场秩序的经营行为,不应当认定为非法经营罪。
Legal Provisions 相关法条

Article 225 of the Criminal Law of the People's Republic of China

 中华人民共和国刑法》第225条

Basic Facts
 基本案情
The Linhe District People's Procuratorate of Bayan Nur City, Inner Mongolia Autonomous Region accused defendant Wang Lijun of illegal business operation. The Linhe District People's Court of Bayan Nur City, Inner Mongolia Autonomous Region held upon trial that, from November 2014 to January 2015, defendant Wang Lijun illegally purchased corn from villages and groups in the vicinity of Bainaobao Town, Linhe District, without a grain purchase permit or the confirmation, registration and issue of a business license by the administrative authority for industry and commerce, and sold the corn so purchased to the Manhui Branch in Hangjinhou Banner of the Bayan Nur Grain and Oil Company, garnering illegally sales of 21,8288.6 yuan and an illegal profit of 6,000 yuan. After the case was identified, defendant Wang Lijun voluntarily handed over the illegal profit of 6,000 yuan. On March 27, 2015, defendant Wang Lijun surrendered to the Economic Investigation Brigade of the Linhe District Public Security Bureau of Bayan Nur City. The court of first instance was of the view that defendant Wang Lijun illegally purchased corn in violation of the laws and administrative regulations of the state, without the permission of the grain authority or the confirmation, registration and issue of a business license by the administrative authority for industry and commerce, and garnered considerable illegal sales of 21,8288.6 yuan, and his conduct constituted the crime of illegal business operation. Given that defendant Wang Lijun surrendered to the public security authority after the case was identified, voluntarily handed over all the illegal income and showed signs of repentance for the crime and that the application of probation in favor of him gave rise to no further harm to society, the court of first instance decided to impose lighter punishment and apply probation in favor of defendant Wang Lijun. After the sentence was pronounced, neither Wang Lijun nor the procuratorate appealed, and the judgment became effective. 内蒙古自治区巴彦淖尔市临河区人民检察院指控被告人王力军犯非法经营罪一案,内蒙古自治区巴彦淖尔市临河区人民法院经审理认为,2014年11月至2015年1月期间,被告人王力军未办理粮食收购许可证,未经工商行政管理机关核准登记并颁发营业执照,擅自在临河区白脑包镇附近村组无证照违法收购玉米,将所收购的玉米卖给巴彦淖尔市粮油公司杭锦后旗蛮会分库,非法经营数额218288.6元,非法获利6000元。案发后,被告人王力军主动退缴非法获利6000元。2015年3月27日,被告人王力军主动到巴彦淖尔市临河区公安局经侦大队投案自首。原审法院认为,被告人王力军违反国家法律和行政法规规定,未经粮食主管部门许可及工商行政管理机关核准登记并颁发营业执照,非法收购玉米,非法经营数额218288.6元,数额较大,其行为构成非法经营罪。鉴于被告人王力军案发后主动到公安机关投案自首,主动退缴全部违法所得,有悔罪表现,对其适用缓刑确实不致再危害社会,决定对被告人王力军依法从轻处罚并适用缓刑。宣判后,王力军未上诉,检察机关未抗诉,判决发生法律效力。
On December 16, 2016, the Supreme People's Court made the Retrial Decision (No. 6 [2016], Supervision, Criminal Division, SPC), appointing the Intermediate People's Court of Bayan Nur City, Inner Mongolia Autonomous Region to retry the case. 最高人民法院于2016年12月16日作出(2016)最高法刑监6号再审决定,指令内蒙古自治区巴彦淖尔市中级人民法院对本案进行再审。
During the retrial, defendant Wang Lijun, the prosecution, and the defense had no objection to the facts found in the original judgment, and the facts found in the retrial were consistent with those found in the original judgment. The Bayan Nur City People's Procuratorate of Inner Mongolia Autonomous Region stated that since the conduct by defendant Wang Lijun was an administrative wrong but not of social harm nor necessity of criminal punishment equivalent to the illegal business activities as mentioned in Article 225 of the Criminal Law, the conduct did not constitute the crime of illegal business operation. The Bayan Nur City People's Procuratorate proposed that the retrial court modify the original judgment according to the law. Defendant Wang Lijun had no objection to the facts and evidence found in the original trial during the retrial, but in the belief that his conduct did not constitute a crime of illegal business operation. The defender stated that as defendant Wang Lijun's act of purchasing corn without a permit was of no social harm, criminal wrong or punishment necessity and lacked the components of the crime of illegal business operation under the Criminal Law and the conformity with the modesty principle of the Criminal Law, defendant Wang Lijun should be acquitted. 再审中,原审被告人王力军及检辩双方对原审判决认定的事实无异议,再审查明的事实与原审判决认定的事实一致。内蒙古自治区巴彦淖尔市人民检察院提出了原审被告人王力军的行为虽具有行政违法性,但不具有与刑法二百二十五条规定的非法经营行为相当的社会危害性和刑事处罚必要性,不构成非法经营罪,建议再审依法改判。原审被告人王力军在庭审中对原审认定的事实及证据无异议,但认为其行为不构成非法经营罪。辩护人提出了原审被告人王力军无证收购玉米的行为,不具有社会危害性、刑事违法性和应受惩罚性,不符合刑法规定的非法经营罪的构成要件,也不符合刑法谦抑性原则,应宣告原审被告人王力军无罪。
Judgment 裁判结果
On April 15, 2016, the Linhe District People's Court of Bayan Nur City, Inner Mongolia Autonomous Region entered the Criminal Judgment (No. 54 [2016], First, Criminal Division, 0802 Inner Mongolia), finding defendant Wang Lijun guilty of illegal business operation, sentencing him to a fixed-term imprisonment of one year with a two-year suspension of execution and a fine of 20,000 yuan, and ordering the illegal profit of 6,000 yuan handed over by defendant Wang Lijun to be turned over to the state treasury by the criminal investigation authority. On December 16, 2016, the Supreme People's Court made the Retrial Decision (No. 6 [2016], Supervision, Criminal Division, SPC), appointing the Intermediate People's Court of Bayan Nur City, Inner Mongolia Autonomous Region to retry the case. On February 14, 2017, the Intermediate People's Court of Bayan Nur City, Inner Mongolia Autonomous Region entered the Criminal Judgment (No. 1 [2017], Retrial, Criminal Division, 08, Inner Mongolia), (1) vacating the Criminal Judgment (No. 54 [2016], First, Criminal Division, 0802 Inner Mongolia) entered by the Linhe District People's Court of Bayan Nur City, Inner Mongolia Autonomous Region, (2) acquitting defendant Wang Lijun. 内蒙古自治区巴彦淖尔市临河区人民法院于2016年4月15日作出(2016)内0802刑初54号刑事判决,认定被告人王力军犯非法经营罪,判处有期徒刑一年,缓刑二年,并处罚金人民币二万元;被告人王力军退缴的非法获利款人民币六千元,由侦查机关上缴国库。最高人民法院于2016年12月16日作出(2016)最高法刑监6号再审决定,指令内蒙古自治区巴彦淖尔市中级人民法院对本案进行再审。内蒙古自治区巴彦淖尔市中级人民法院于2017年2月14日作出(2017)内08刑再1号刑事判决:一、撤销内蒙古自治区巴彦淖尔市临河区人民法院(2016)内0802刑初54号刑事判决;二、原审被告人王力军无罪。
Judgment's Reasoning 裁判理由
The Intermediate People's Court of Bayan Nur City, Inner Mongolia Autonomous Region held upon retrial that the fact found in the original judgment that defendant Wang Lijun traded corn without a grain purchase permit or a business license from November 2014 to January 2015 was clear and that as his conduct was a violation of the state's relevant administrative rules of grain circulation in force at that time, which was not as harmful as the serious disruption of the market order nor equivalent to the crime of illegal business operation as provided in Article 225 of the Criminal Law in terms of social harm, criminal wrong and necessity of criminal punishment, instead of a crime of illegal business operation. The original judgment that Wang Lijun was found guilty of illegal business operation was erroneous in the application of law. The opinion from the procuratorial authority that Wang Lijun's act of trading corn without a permit or business license did not constitute the crime of illegal business operation was tenable, and so was the opinion from defendant Wang Lijun and his defender that Wang Lijun's conduct did not constitute a crime. 内蒙古自治区巴彦淖尔市中级人民法院再审认为,原判决认定的原审被告人王力军于2014年11月至2015年1月期间,没有办理粮食收购许可证及工商营业执照买卖玉米的事实清楚,其行为违反了当时的国家粮食流通管理有关规定,但尚未达到严重扰乱市场秩序的危害程度,不具备与刑法二百二十五条规定的非法经营罪相当的社会危害性、刑事违法性和刑事处罚必要性,不构成非法经营罪。原审判决认定王力军构成非法经营罪适用法律错误,检察机关提出的王力军无证照买卖玉米的行为不构成非法经营罪的意见成立,原审被告人王力军及其辩护人提出的王力军的行为不构成犯罪的意见成立。
(Judges of the effective judgment: Xin Yongqing, Bai Ling, He Li) (生效裁判审判人员:辛永清、百灵、何莉)
     
     
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