News

Since the outbreak of the COVID-19 in 2020, some units and individuals have repeatedly violated social morality and took the opportunity to drive up prices to make the country rich. In 2020, the Supreme People's court and the Supreme People's Procuratorate, the Ministry of public security and the Ministry of justice urgently issued the opinions on punishing the illegal crimes hindering the prevention and control of the novel coronavirus infected pneumonia epidemic (hereinafter referred to as the opinions), once again defining the nature of the illegal bid up prices during the epidemic period. At the same time, the Supreme People's Procuratorate issued several relevant typical cases to clarify the judicial bottom line and protect the social stability during the epidemic period. However, based on the principle of modesty and restraint of criminal law, we should carefully distinguish administrative illegality from criminal responsibility when choosing the means of social governance, and pursue the unity of legal effect and social effect within the framework of the principle of legality.

1、The "state regulations" in the crime of illegal business operation should be interpreted with restriction

Article 225 of the criminal law stipulates that the crime of illegal business operation refers to one of the following illegal business operations in violation of state regulations, which disturbs the market order, and the circumstances are serious: (1) operating exclusively or exclusively owned goods or other goods subject to restrictions on trading as stipulated by laws and administrative regulations without permission; （2） Buying and selling import and export licenses, import and export certificates of origin and other business licenses or approval documents as stipulated by laws and administrative regulations; 

（3） Illegally engaging in securities, futures and insurance businesses, or illegally engaging in fund payment and settlement businesses without the approval of the relevant competent state departments; （4） Other illegal operations that seriously disrupt the market order. The principle of a legally prescribed crime and punishment requires that the constitution of a crime should be clear and specific, so that citizens can clearly understand what kind of behavior can not be done. The fourth provision in the crime of illegal business operation deviates from the spirit of the principle of legality because of its lack of clarity. In order to prevent the above-mentioned provisions from being abused in judicial practice, the notice of the Supreme People's Court on accurately understanding and applying the relevant issues of the "state provisions" in the criminal law (hereinafter referred to as the "notice") requires the people's court to strictly grasp the scope of application of item 4 when trying criminal cases of illegal business operations. If there is no clear provision in the relevant judicial interpretation on whether the defendant's behavior belongs to "other illegal business acts that seriously disrupt the market order", it shall, as a matter of law application, apply to the Supreme People's Court level by level for instructions. However, in recent years, not only the number of relevant judicial interpretations is increasing, but also the understanding of "violating state regulations" in judicial practice is becoming more and more mechanical. Administrative regulations are regarded as "state regulations" in this crime, resulting in the increasing expansion of the scope of application of the fourth item of the crime of illegal business.

picture

(picture from the network)

According to Article 96 of the criminal law, "state regulations" refer to laws and decisions formulated by the National People's Congress and its Standing Committee, administrative regulations, administrative measures, decisions and orders issued by the State Council. The circular stipulates that "the administrative measures prescribed by the State Council" shall be decided by the State Council, usually in the form of administrative regulations or documents prepared and issued by the State Council. Documents prepared and issued in the name of the general office of the State Council shall also be regarded as "national provisions" in the criminal law if they meet the following conditions: (1) they have a clear legal basis or do not conflict with relevant administrative regulations; (2) Adopted at the executive meeting of the State Council or approved by the State Council; (3) Published in the State Council Bulletin. At the same time, the notice proposes that any act in violation of local regulations and departmental rules shall not be recognized as "violation of national regulations".

2、Double illegality examination of "violation of state regulations"

According to items 1 to 3 listed in Article 225 of the criminal law, the administrative violation here is the relevant legal provisions of the administrative license. According to the principle of equal interpretation of the parallel provisions of the criminal law, other acts specified in Item 4 should also be based on the violation of the administrative license, that is, the violation of the administrative license is the formal element of the crime. However, only having formal elements is not enough to be recognized as "violating state regulations". Since the legal interests protected by the crime of illegal business operation are the socialist market economic order, it is necessary to examine whether the illegal acts cause substantial harm to the market economic order. The crime of protecting order, security and other abstract legal interests is easy to be expanded in practice. Therefore, substantive review is the only way to maintain the legality of crime and punishment and maintain the modesty of criminal law. For example, if the "violation of traffic and transportation management regulations" in the crime of traffic accident is only for formal review, the behaviors that do not pose a threat to public safety, such as blocking the vehicle number plate and not wearing a safety belt, also meet the preconditions of the crime.

The substantive examination of violation of administrative license in the crime of illegal operation can be distinguished according to the type of administrative license, which mainly involves general license and special license. General permits, such as driver's licenses, for the purpose of general risk prevention, can usually be approved as long as they meet the legal conditions; Special licenses, such as mining licenses, involve the development of limited natural resources, the allocation of public resources and the market access of specific industries directly related to public interests, while they involve the state monopoly and allocation of certain resources. Professor Wang Kewen believes that: the right holder of the special license has obtained rights that do not belong to him. Therefore, if he engages in activities under the license without obtaining the license, his behavior is not only illegal in form and entity, and should be subject to administrative and even criminal punishment, but also an act of infringing on state ownership. As for the general license, if the conditions are met but the license is not obtained, it is only a formal violation; If the act is neither licensed nor meets the conditions of the license, it is not only a formal violation, but also a substantive violation. Professor chenxingliang believes that formal illegality is only a simple administrative illegality, which should only be subject to administrative punishment, and cannot constitute the crime of illegal operation. As for entity illegality, it is an act of violating the administrative order. Only when the law has provisions can it constitute the crime of illegal operation. However, in practice, the identification of the crime of illegal business operation is often not differentiated. Once the administrative license is violated, it will be identified as "other illegal business operations". This practice has compressed the space of administrative punishment. In fact, the criminal legislative power is delegated to the administrative department, which not only does not limit the scope of application of item 4 of this article, but also causes the disorderly expansion of the criminal circle.

three

Double illegality examination of illegal business activities involving epidemic diseases

Article 6 (hereinafter referred to as the "interpretation") of the interpretation on Several Issues concerning the specific application of law in handling criminal cases impairing the prevention and control of sudden infectious disease epidemics and other disasters stipulates that, in violation of the provisions of the state on market operation and price management during the prevention and control of sudden infectious disease epidemics and other disasters, those who bid up prices, make exorbitant profits, seriously disrupt the market order, have a large amount of illegal income or have other serious circumstances, In accordance with the provisions of item (4) of Article 225 of the criminal law, he shall be convicted of the crime of illegal business operation and given a heavier punishment according to law. There are two problems in the existing cases based on this article: first, there is no formal violation of the law, and only the parties involved in bid to raise prices are recognized as the crime of illegal operation, such as the sixth of the first ten typical cases of crimes hindering the prevention and control of COVID-19, the sixth of the fourth batch of cases, the first to fourth of the seventh batch of cases, Shanghai Wanhui Secret Service Trade Co., Ltd., Xie Shiquan's illegal operation case, etc; Second, the price bid-up that is illegal in form but has not been examined in substance is recognized as a crime of illegal operation, such as the case of Gao illegally renting another person's food business license to sell food at a high price recently reported by Shanghai Jing'an police.

Judicial interpretation can not go beyond the original meaning of the criminal law provisions, and can not reduce the threshold of criminalization. The "national provisions on market operation and price management" in Article 6 of the interpretation shall be based on the violation of administrative license, and shall also violate other provisions on market operation and price management, that is, the "national provisions on market operation and price management" is not a substitute for the relevant laws and regulations of administrative license, but a new element of criminal constitutive elements based on the violation of administrative license. Article 2 of the opinions lists three categories of epidemic related articles: first, drugs, second, masks, goggles, protective clothing, disinfectants and other protective articles urgently needed for epidemic prevention and control, and third, other articles related to people's livelihood. When examining whether the illegal operation of the above three categories of goods during the epidemic period constitutes the crime of illegal operation, we should take formal illegal as the premise, take the review of substantive illegal as the principle, and adhere to the bottom line that only the law provides can constitute the crime of illegal operation.

1. during the epidemic period, the act of selling drugs without a license that does not meet the requirements of drug business shall be recognized as the crime of illegal business

According to the drug administration law of the people's Republic of China, the regulations for the implementation of the drug administration law of the people's Republic of China and the measures for the administration of drug trading licenses, drug trading licenses belong to general licenses. The form of drug distribution requires that the operator must obtain a drug distribution license before conducting business activities. The entity requirements for pharmaceutical trading are as follows: 1. Having pharmacists or other pharmaceutical technicians who have been legally certified; 2. The business premises, equipment, storage facilities and sanitary environment appropriate to the drugs handled; 3. Having a quality control organization or personnel appropriate to the drugs they handle; 4. There are rules and regulations to ensure the quality of drugs, and they comply with the requirements of the standards for the quality management of drug distribution formulated by the drug regulatory department under the State Council in accordance with the drug administration law. At the same time, the first paragraph of Article 7 of the interpretation on Several Issues concerning the application of the law in handling criminal cases endangering drug safety stipulates that those who violate the national drug administration laws and regulations, fail to obtain or use forged or altered drug trading licenses, and illegally trade drugs, if the circumstances are serious, shall be convicted and punished for the crime of illegal trading in accordance with the provisions of Article 225 of the criminal law. Therefore, during the epidemic period, when the perpetrator neither had a drug trading license nor met the requirements of the above entities, the acts of driving up prices and illegally trading drugs should be recognized as the crime of illegal trading.

2. the act of operating protective articles without a license during the epidemic period should not be recognized as the crime of illegal operation

The commonly used protective articles for epidemic prevention and control belong to medical devices. Article 6 of the regulations on the supervision and administration of medical devices divides medical devices into three types. The first type is the medical devices with low risk and whose safety and effectiveness can be guaranteed by routine management. The second category is the medical devices with moderate risks that need to be strictly controlled and managed to ensure their safety and effectiveness. The third category is the medical devices that have high risks and need to take special measures to strictly control and manage to ensure their safety and effectiveness. According to Article 4 of the measures for the supervision and administration of the operation of medical devices, the operation of class III medical devices is subject to license management, the operation of class II medical devices is subject to filing management, and the operation of class I medical devices does not require license and filing. According to the classified catalogue of medical devices, the vast majority of epidemic prevention articles belong to class I medical devices, that is, products that can be operated without administrative license or filing, so they can not meet the preconditions for violation of administrative license for the crime of illegal operation. At the same time, there is no judicial interpretation to identify the operation of medical devices without a license as a crime of illegal operation. Therefore, the actor should not be identified as a crime of illegal operation by driving up prices and selling medical devices without administrative permission during the epidemic prevention and control period. The epidemic prevention articles involved in the relevant cases of the highest detection station do not need administrative permission, so they lack the formal illegal elements, and can not be recognized as the crime of illegal operation only by the act of driving up prices.

3. during the epidemic period, the same review criteria should be adhered to in determining the nature of other goods related to people's livelihood

Whether the operation of other goods involving people's livelihood by raising prices during the epidemic period constitutes a crime of illegal operation shall be comprehensively assessed according to the categories of goods and the constitutive elements of the above-mentioned crimes, that is, whether there is an administrative license, whether it constitutes formal and substantive violations, and whether there are relevant judicial interpretations to clarify that such acts should be recognized as a crime of illegal operation. The above-mentioned case of Mr. Gao illegally renting another person's food business license mainly involves food. The food business license belongs to the general license, which mainly targets the following four categories of food: prepackaged food, bulk food, special food and catering services. Article 8 of the food safety law shows that this law mainly regulates the hygiene and safety of food production and production. If the food sold by the perpetrator in the above cases does not belong to the above four categories, such as packaged finished products, it does not belong to the scope of the food business license. Due to the lack of formal illegal elements, it is not suitable to be recognized as the crime of illegal business; If they fall into the above four categories, it is necessary to substantially examine whether the environment and process of the actor's production and preparation of food comply with the requirements of the food safety law. For cases that should not be recognized as crimes, administrative punishment should be fully used.