Newspaper reporter Qu Li Li reports from Beijing.
Zhang Wen, Gu Xiaojun and other wrongful cases bring hope to many private entrepreneurs in prison.
Moreover, on the evening of November 15, the Supreme Procuratorate issued 11 judicial standards regulating the handling of cases involving private enterprises. One of the criteria is "how to strictly apply the crime of illegal operation and prevent the expansion of criminal strike". The Supreme Procuratorate stressed that if there is no explicit prohibitive provision in the legal and judicial interpretations of the business operations of private enterprises, criminal responsibility shall not be investigated for the crime of illegal business operations.
This has to remind people of the case of Huang Guangyu, who entered the judicial process 10 years ago and sentenced eight years ago. As a grass-roots entrepreneur, Huang Guangyu once created a legend of Chinese retail industry, but at the same time, his imprisonment at the height of the storm has aroused widespread concern in society, especially because Huang Guangyu was convicted of illegal business. The punishment for 8 years has triggered the debate and discussion of domestic jurists in academic field.
On November 16, the second day after the promulgation of the judicial standards of the Supreme Procuratorate, the stock price of Zhongguancun (000931.SZ) rose from 7.84 yuan per share to 8.62 yuan. "On the one hand, it may be good for science and innovation board, on the other hand, it may be because the definition of crime and non-crime in the judicial standards issued by the Supreme Procuratorate may provide an opportunity to correct the Huang Guangyu case." Analysts from the brokerage told the China business newspaper.
Regarding the possibility of the latter, our reporter testified to lawyer Limer, who has been providing legal consultation and services for the Huang Guangyu family. Limer told reporters: "The misapplication of law in the case of illegal business crime in Huang Guangyu has indeed applied for retrial and received the notice of retrial in July 2016."
In an interview with reporters, Ruan Qilin, member of the Expert Committee on Case Guidance of the Supreme People's Court and professor of China University of Politics and Law, also said: "The judgment of Huang Guangyu's crime of illegal business operation has the problem of"enlargement"in the application of the law, which regards general administrative illegal activities as illegal business operations. The special "brand" of that era was analyzed by jurists including Professor Chen Xingliang. Now a series of central documents protect the legitimate rights and interests of private entrepreneurs. At present, the Huang Guangyu case has been put forward for retrial. It is time to solve the problem.
Two years' retrial did not result.
On May 18, 2010, the Second Intermediate Court of Beijing sentenced Huang Guangyu to eight years'imprisonment for illegal business operation and 200 million yuan of confiscated personal property; nine years' imprisonment for insider trading and 600 million yuan of fine; and two years'imprisonment for unit bribery. Several crimes were concurrently punished, and a fixed-term imprisonment of 14 years was decided, and a fine of 600 million yuan was imposed, and personal property of 200 million yuan was confiscated.
After the verdict, Huang Guangyu considered that he did not constitute the crime of insider trading, illegal business and excessive fines, and appealed to the Beijing Higher People's Court.
On August 30, 2010, the Beijing Higher People's Court ruled in the second instance that Huang Guangyu was sentenced to 14 years'imprisonment and no more than 800 million yuan for three crimes.
Obviously, in this case, appeal (or application for retrial) becomes an important way to change the judgment. As mentioned at the beginning, in July 2016, Huang Guangyu's case received a notice of retrial acceptance. The retrial mainly aims at the misapplication of law in the crime of illegal business operation.
However, according to people familiar with the matter, it has been two years since the retrial case was accepted, but no progress has been made.
In these two years, China's rule of law has been developing fastest, and vigorous anti-corruption and official evils have greatly improved the domestic judicial environment. "The case of Huang Guangyu was decided by Zhou Yongkang when he was in charge of the Central Political and Legal Commission with wrong ideas. There were some human intervention. Now the judicial environment is quite different, which undoubtedly provides an opportunity for Huang Guangyu's case to be corrected and corrected." The insider told reporters.
"Not only that, public opinion also pays more attention to this matter, the media continue to hype, which also means that the society expects Huang Guangyu to come back and revitalize the United States." The person familiar with the matter said.
According to the data of Baidu Index, Huang Guangyu's concern index reached a peak of 1.59 million on November 4 and 1.41 million on November 18 (1585,799 and 1411,111), just at several important points when the central government issued the document on protecting the legitimate rights and interests of private enterprises.
Doubt about the crime of illegal operation
As mentioned above, the judgment of the "crime of illegal business" in Huang Guangyu's case has always been an important issue discussed by the criminal law academia.
In the first issue of Criminal Law Judgment in 2015, Professor Chen Xingliang, Ph.D. supervisor of Peking University Law School, published the article "Criminal Law Evaluation of Illegal Foreign Exchange Trading: A Comparative Analysis of Huang Guangyu Case and Liu Han Case". Chen Xingliang pointed out in the article: "Although the second trial decision in Liu Han case was not conducted subjectively by the defendant, The purpose of profit does not constitute the crime of illegal operation, but in fact it negates that the simple act of buying and selling foreign exchange can constitute the crime of illegal operation, and confirms that only the act of reselling foreign exchange for profit can constitute the crime of illegal operation.
Ruan Qilin told reporters: "Looking back at the Huang Guangyu case and the Liu Han case, it is not difficult to find that the two cases are basically the same thing, they are all acts of repaying gambling debts through underground banks, but they have produced different results in the same case."
In Huang Guangyu's case, Huang Guangyu was accused of transferring RMB 800 million directly or through Heng Yixiang Company to the accounts of Shengfengyuan Company and Shenzhen McKinkey Electronic Technology Co., Ltd. in addition to the trading places prescribed by the State Administration of Foreign Exchange between September and November 2007. He was controlled by Zheng Xiaowei (sentenced) and others. The "underground banking house" was purchased privately and charged more than HK$822 million (equivalent to US$105 million) in Hong Kong. Huang Guangyu was sentenced to eight years'imprisonment and 200 million yuan of confiscation of part of his personal property.
In the case of Liu Han, Liu Han was accused of transferring funds to Fan Rongzhang's account in order to repay gambling debts abroad from December 2001 to June 2010 through Hanlong Group and related companies under its control. Fan Rongzhang later converted more than 500 million yuan into Hong Kong dollars through underground banking houses to repay Liu Han's debts. For the above acts, the court of first instance decided that Liu Han constituted the crime of illegal operation. Liu Han, the defendant, appealed. After hearing the case, the High People's Court of Hubei Province held that Liu Han, the appellant, was acquitted in the second trial because he had no profit-making purpose, was not a business operation, and did not constitute a crime of illegal business operation.
In Ruan Qilin's view, the key problem lies in the boundary between the crime of illegal foreign exchange trading and illegal business operation. Among them, the Regulations on the Administration of Foreign Exchange promulgated by the State Council on January 29, 1996, the Interpretation of Several Questions Concerning the Application of Law in Trial of Criminal Cases of Fraudulent Purchase of Foreign Exchange and Illegal Trading of Foreign Exchange promulgated by the Supreme People's Court on August 28, 1998 (hereinafter referred to as "Interpretation"), and the Stan The promulgated Decision on Punishing Crimes of Fraudulent Purchase of Foreign Exchange, Evasion of Foreign Exchange and Illegal Sale of Foreign Exchange (hereinafter referred to as "Decision") has become an important basis for straightening out the relationship between the two.
"According to the accusation, the problem with Huang Guangyu's case is that his actions constitute illegal foreign exchange trading, but not illegal foreign exchange trading under the crime of illegal operation." Ruan Qilin told reporters.
It is noteworthy that although the Regulations on Foreign Exchange Administration stipulate that it is prohibited to buy and sell foreign exchange privately outside a reasonable foreign exchange trading place, to buy and sell foreign exchange in disguised form, and to buy and resell foreign exchange, these three situations are all illegal, but the judicial interpretation only states that illegal foreign exchange trading is to prosecute criminal responsibility for the crime of illegal operation. Ren, then, how to understand the illegal trading of foreign exchange in the crime of illegal business operation or the illegal trading of foreign exchange that needs to be investigated for criminal responsibility?
According to Ruan Qilin, "Criminalized illegal purchase of foreign exchange actually refers to the situation of reselling foreign exchange. It is illegal to make profits by reselling foreign exchange. The purpose is to make profits and earn value by doing so. Therefore, there exists this problem in underground banks. Huang Guangyu's behavior is only to pay foreign exchange through an underground bank. If it belongs to the act of purchasing foreign exchange, it is also the act of purchasing foreign exchange privately. It belongs to the act of buying and selling foreign exchange privately or in disguised form. It does not belong to the act of buying and reselling foreign exchange. Therefore, it is only an illegal act in violation of administrative regulations. It is not a criminal offence. "
Chen Xingliang also believes that the crime of illegal business operation stipulated in Article 225 of the Criminal Law requires the actor to have a subjective profit-making purpose, and the only act that meets this requirement is to resell foreign exchange. Therefore, we should understand the "trading foreign exchange" stipulated in the Interpretation and Decision as a profit-making purpose. The reselling of foreign exchange. Only in this way can the illegal acts of foreign exchange be distinguished accurately: the act of reselling foreign exchange for profit constitutes the crime of illegal operation; the act of buying and selling foreign exchange for non-profit purposes can only be punished by administrative penalties.
There are also legal experts who do not want to be named told reporters: "Huang Guangyu is accused of illegal business in the legal facts, the lack of profit for the purpose of subjective elements. There are more than 400 kinds of crimes stipulated in the Criminal Law of our country. Each crime has four elements: the subject of crime, the subjective aspect of crime, the objective aspect of crime and the object of crime. Lack of any element can not constitute a crime.
"Not only that, the conviction and sentencing of similar cases were later revoked in the judgment of the Hubei court, and the revocation result was maintained in the review of the Supreme People's Court. This shows us the practice of respecting facts and the boundaries of laws and regulations in the practice of the rule of law in our country." The same case referred to by the above-mentioned experts is the case of Liu Han.
In fact, according to public information, as early as June 25, 2010 (shortly after Huang Guangyu's judgment), nine experts, including the main founder and pioneer of New China's Criminal Law, the honorary president of the Chinese Society of Criminal Law, and Professor Gao Mingyuan of the Law School of Renmin University of China, pointed out in the Expert's Demonstration Opinion provided by Huang Guangyu's case. "Huang Guangyu repays gambling debts through underground banks to arbitrage, not to buy and sell foreign exchange in disguised form, and not to operate illegally, so it does not constitute a crime."
In the process of interviewing reporters, a more popular saying is: "If I owe you money, you let me give it back to your cousin, that is such a simple debt relationship, and eventually become a crime." Or, this is the biggest confusion, misunderstanding and injustice of the parties.
Property rights protection of private enterprises
On November 27, 2016, "Opinions on Perfecting Property Rights Protection System to Protect Property Rights According to Law" was issued, which put forward a series of requirements, such as perfecting the legal system of equal protection of property rights and properly handling property rights cases formed in history.
In 2018, with the development of macroeconomic situation, the central government has launched a series of measures to protect private enterprises.
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