Li Zemin: Plead of crime of economy of office of counsel for the defence of economic crime case, wide strong attorney and research center director
He Tianyun: Plead of crime of economy of office of plead of economic crime case, wide strong attorney and research center researcher
Comment: The author is going up an article already labor fry those who collect platform to be maintained to be suspected of managing a hardship illegally to enter a blame logistic, because our country law is restricted, trade besides foreign currency nominated bank and Chinese foreign currency besides center and its cent center, be in at present home, other principal part is engaged in foreign currency buying and selling trading because of approval of bank of unavailable China people, be maintained possibly to be manage illegally.
So to this kind of case, how be defeated as counsel for the defence see the logic entering a blame of the judiciary? From what does the respect cut a case to you can achieve better apologetic result?
Taking these issues, author union handles theory of case solid Wu, law and judicatory case in person, the logic entering a blame that collects platform to be maintained to be suspected of managing a hardship illegally to how defeating solution to fry does a brief analysis, so that can be fact of follow-up and similar case,Wu job provides a few benefit.
One, material of proof of entire case of check and approve, whether is judgement behavior person engaged in foreign currency illegally trading without approval business, establish this case plead direction
The judiciary maintains this kinds of case to enter a blame logistic start, it is to examine behavior person to be engaged in conduct of foreign currency business whether passing Chinese people bank to examine and approve, obtained management aptitude. But because at present the restricted of our country law sets, trade besides foreign currency nominated bank and Chinese foreign currency center and its cent center, other principal part (article discussion main body is to point to this kind of other principal part) pursue business of foreign currency business without the qualification. Accordingly, only should evidence proves behavior person has really be engaged in foreign currency trading business, with respect to OK and preliminary judgement, behavior person offends likely manage a hardship illegally.
Be engaged in foreign currency commonly trading at present mode is, with agent of company of the foreign currency outside the condition the identity is made public in home go up to solicit investor and help investor participate in foreign currency market to trade to the market, perhaps know perfectly well experience record company to be engaged in foreign currency illegally trading business and provide a help. Apparent, as a result of law prohibit sexual regulation, these two kinds of mode do not have the basis that manages legally.
Accordingly, behavior person did not obtain approval to be engaged in foreign currency trading the case of business can form two old apologetic way according to particular case:
One of, because our country law prohibits dividing the other principal part beyond specific main body to be engaged in foreign currency in the round,trade business, if on record evidence can't confirm behavior person has the action that pursues foreign currency trading truly, or the number that runs foreign currency business illegally did not reach level having punishment, do not form for the person all right manage a hardship illegally. Right now, counsel for the defence should do innocent plead;
Secondly, if enough of on record evidence confirms behavior person has the action that did not win approval to be engaged in foreign currency illegally trading truly, and the number that runs foreign currency business illegally reachs point having punishment, should be in be suspected of next doing forming the premise that manages a hardship illegally blame light plead.
Article author will be suspected of forming the premise that manages a hardship illegally fall how to undertake blame light plead spreads out around behavior person discuss.
2, comb dot of case blame light argue, choice blame light plead is optimal cut a point
1, cognizance principal and subordinate makes: According to behavior person the position in the case is mixed action, the less important action in committing a crime in order to go jointly for the person, accessory place regards a blame as the breach of light plead
In frying the case that assembles platform to be maintained to be suspected of managing crime illegally, behavior person is with company of the foreign currency outside the condition procuratorial identity solicits a client in home normally, its business often is the foreign currency outside condition of leech on to trades platform, trade by the foreign currency outside the condition platform opens port to undertake for investor foreign currency trades for its. Deal with before the author fry collecting platform to be maintained to be the case that manages a hardship illegally is such.
In fact, the foreign currency outside the origin department condition of the case trades the company deals for occupational country foreign currency the market and organization, engineer and dominant home fries the foreign currency that collects platform to trade business, behavior person is the foreign currency outside the condition trades only the agent of company invite applications for a job, the foreign currency outside assisting the condition that finish trades the relevant matters concerned of platform consign, both sides can sign cooperative agreement normally and grant behavior person acting limits of authority.
Below this kind of case, platform of the foreign currency outside the condition just is the organization of this case, machinator, it is to have main effect principal, behavior person is in this case is to rise to secondary wants or assist action merely, ought to with accessary criminal punish.
2, from make jointly meaning cut: Behavior person simply commits a crime jointly to be based on the behavior of intended less than assumes legal responsibility, and need not assume make the legal responsibility beyond meaning jointly
What criminal law punishs is the criminality of behavior person oneself, and should not assume responsibility to the criminality of other. Accordingly, paraclete is passed comb case fact, try behavior person and action of staff of other experience case to distinguish, it is person etc to going character of action of experience case staff make corresponding and qualitative, handle a case in case person of behavior of vest in of behavior of mechanism general other.
Specific and character, in pursueing the case that foreign currency trades illegally, classics regular meeting appears " the foreign currency outside the condition trades agent of company → churchyard → is various agency → client " multilayer the circumstance of class representative and distribute. Behavior person accepts the foreign currency outside the condition to trade company authorization becomes churchyard agent, developed one class dealer to extend business, one class agency may continue to develop 23 class dealer downward, the foreign currency outside soliciting a client to carry supply situation by various agency trades the company undertakes foreign currency trades. In business moving course, various agency may exist to open direct seeding through privately, call sheet, to client acceptance the means such as tall redound entices investor to increase the action such as investment. But these behavior are not by the behavior that regards churchyard as the agent the person is made apparently, or make below the incite sb to do sth of behavior person. This also is meant, the collective crime that the behavior of agency had exceeded its and travel humanness is intended, behavior person is based on a representative to manage to its and agency only fry manage behavior illegally what make the place below meaning be engaged in jointly what assemble business to assume legal responsibility, and need not exceed to agency make jointly meaning made other action assumes responsibility.
3, consider a scenario with amount: Accurate understanding " run number illegally " with " illegal income amount "
According to legal provision, should manage behavior illegally to achieve only " the clue is serious " when just be maintained to be crime, and " the clue is particularly serious " it is promote measurement of penalty only. Serious to the clue particularly serious perhaps, in judicatory solid Wu, the judiciary often is amount is talked or adopt the Miscellaneous Leaflet that is a foundation with amount only.
Among them " run number illegally " " illegal income amount " it is crucial to the influence of the case, can decide a case directly occasionally whether form guilt. Although at present our country law does not have afore-mentioned pair of concepts to make unified provision, but, in judicatory solid Wu, put in judicatory legal precedent to be different from general rule circumstance really.
For example, about " illegal income amount " , our country judiciary is to hold commonly " gain profit say " principle, that is to say, calculating " illegal income amount " when need deducts pay of advertisement defray, chummage, worker to be sure to wait for the necessary expenditure that safeguards platform to move normally.
Accordingly, about the cognizance of the clue, the author thinks or need counsel for the defence reachs judicatory legal precedent to make omnibus judgement according to provision of case fact, evidence, law, strive for do the most effective plead for behavior person.
Of course, besides dots of afore-mentioned a few bits of big argue, according to case case still dot of a lot of argue can be dug, arrive for the person all right for example case case, have without confess one's crime clue, clue of behavior person disgorge ill-gotten gains. Problem of length of be confined to, the author here no longer analysis of one by one.
3, according to case fact, is subjective and intended reach action;
Handle a case according to the author experience, the judiciary of a lot of domestic areas is engaged in foreign currency trading to behavior person the case that business is suspected of managing a hardship illegally is not familiar with very, the circumstance that because this classics regular meeting appears,comes to this kind of case in order to be suspected of crime of fraud to deal with.
Well-known, crime of fraud than managing a hardship illegally measurement of penalty wants to weigh, especially experience record amount " data is particularly tremendous " below the circumstance, its measurement of penalty is 10 years of above or life imprisonment; The measurement of penalty of management blame of law of and rather than is achieved " the clue is particularly serious " when, be in set term of imprisonment of 5 years of above, highest penalty does not exceed 15 years below the circumstance that be not several blames namely and punishs. In pursueing the case that foreign currency trades illegally, experience record amount often is as high as several ten million, count even yuan, if be sentenced according to crime of fraud,punish, be faced with probably for the person all right by the circumstance of inflict severe punishment.
Accordingly, the author thinks to handling this kind of case, counsel for the defence also should be aimed at the behavior of behavior person to make the plead that is not suspected of crime of fraud beforehand case, in order to have untimely needs.
On put together, the author thinks, when facing this kind of case, if go to do not have innocent element really for the person, criterion Lv of take an examination of counsel for the defence makes defensive plan from the angle with light blame. Combine the characteristic of this kind of case, the author thinks, principal and subordinate makes maintain, make jointly of meaning divisional and the computation that runs illegal income number illegally is plead of this kind of case is optimal cut a point.
