I. The root of the problem
20 1 1 In March, Wang rented an office at a monthly rent of 6,700 yuan in the name of an information technology company, and hired several salesmen. In the absence of business license and securities practice license, Wang advertised in TV stock review programs to attract customers, and the salesman reached an oral agreement with customers by telephone, illegally providing stock information to customers and charging service fees. As of May of the same year, * * * charged 654.38 million yuan for customer service. In the process of handling the case, there are different opinions on how to identify the illegal income in this case. Accordingly, the relevant departments sought opinions from the Supreme People's Court Research Office on the determination of "illegal income" in the crime of illegal business operation.
Second, the main controversial issues
The first opinion is that the service fee of 654.38 million yuan charged in this case is only the income from selling stock information consulting services, that is, the illegal business amount; The amount of illegal income is the profit obtained by the business premises after deducting the operating costs such as rent and advertising fees.
The second opinion is that the service fee of 6,543,800 yuan charged in this case belongs to the amount of illegal income, and the operating cost of continuing crimes should not be deducted. The main reasons are:
1, "illegal gains" in the criminal law generally refers to all the property, including money and articles, obtained by criminals due to illegal and criminal activities. When specifically determining the amount of illegal income, it should be determined according to different situations: First, if there are clear provisions in judicial interpretation, it should be determined according to judicial interpretation. For example, the Supreme People's Court's "Reply on How to Determine the Amount of Illegal Income in the Trial of Criminal Cases of Producing and Selling Fake and Inferior Products" stipulates that the amount of illegal income refers to the amount of profits made by producing and selling fake and inferior products. The Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Publications stipulates that "the amount of illegal income" refers to the amount of profit. Second, if there is no clear stipulation in legislation and judicial interpretation, illegal income should be broadly understood, that is, it should not be limited to the amount obtained, but all illegal income including operating costs.
2. Legislation and judicial interpretation have not made restrictive provisions on "illegal gains" in illegal securities business. Therefore, the service fees charged by illegal securities business should all be recognized as the amount of illegal income. Moreover, if operating costs are required to be deducted, it will not only be difficult to investigate and collect evidence and correctly calculate the amount of illegal income, but also affect the efficiency of handling cases, which is not conducive to timely and effective punishment of illegal securities business.
Third, the research opinions and their reasons
After careful study, the Supreme People's Court Research Office agrees with the first opinion, that is, the "illegal income" in the crime of illegal business operation refers to the amount of profit, that is, the total income obtained by the actor illegally producing and selling goods or providing services (that is, the amount of illegal business operation), after deducting the reasonable expenses directly used for business activities. The main reasons are as follows:
1. China's judicial and administrative organs advocate the principle of "profit theory" when determining the amount of illegal income in the crime of illegal business operation. For example, the "Reply of the Supreme People's Court on How to Determine the Amount of Illegal Income in the Trial of Criminal Cases of Producing and Selling Fake and Inferior Products" stipulates that the amount of illegal income refers to the amount of profits obtained from producing and selling fake and inferior products; Article 17 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Publications also stipulates that the "amount of illegal income" as mentioned in this Interpretation refers to the amount of profit.
Moreover, Article 2 of the Measures for the Determination of Illegal Income in Administrative Punishment Cases for Industry and Commerce issued by the State Administration for Industry and Commerce clearly stipulates: "The basic principle for the industrial and commercial administrative organs to determine illegal income is that all the income obtained by the parties illegally producing or selling goods or providing services, MINUS the appropriate and reasonable expenses directly used by the parties for business activities, is illegal income." Of course, although the principle of "profit theory" is applied in China, there are exceptions, that is, some illegal and criminal acts that endanger society or the illegal cost is difficult to calculate can be regarded as illegal income. However, this exception should be clearly stipulated by law and judicial interpretation. Instead of the second opinion, in the absence of clear restrictions by law and judicial interpretation, all sales revenue should be recognized as the amount of illegal income.
2. The criminal law and related judicial interpretations use the concepts of "illegal business amount" and "illegal income amount" in different meanings. The Supreme People's Procuratorate and the Ministry of Public Security's Provisions on the Standards of Public Security Organs' Jurisdiction over Criminal Cases (II) also distinguish these two concepts, clearly stipulating that "the amount of illegal securities, futures and insurance business is more than 300,000 yuan" or "the amount of illegal income is more than 50,000 yuan". If "the amount of illegal income" and "the amount of illegal business" are confused, it will inevitably lead to confusion and affect the correct handling of related cases. Especially in the case of clearly distinguishing between "illegal income amount" and "illegal business amount" in illegal securities business, it is obviously inappropriate to identify the illegal business amount as illegal income amount on the grounds that "it is not only difficult to investigate and collect evidence and correctly calculate the specific amount of illegal income, but also affects the efficiency of handling cases and is not conducive to timely and effective punishment of illegal securities business".