Recently, Mr. Tang Lijun, a senior partner of Beijing King&Capital Law Firm, provided legal services for a client who was suspected of illegal business operation. Through the unremitting efforts of defense lawyers, the client was successfully rescued within the “37-day golden rescue period”, and the client has not been arrested by the procuratorial authorities, and the client has been released on bail pending trial and regained his freedom.
Firstly, focusing on the criminal elements of the crime of illegal business operation, accurately clarifying the status and role of the parties, arguing that the parties subjectively do not have criminal intent, there is the possibility of not constituting a crime.
The crime of illegal business operation is a typical administrative crime, with the violation of antecedent administrative regulations as the necessary condition for incrimination. In the era of big data, the regulatory policies of market regulators for many emerging businesses are developing dynamically, and thus the judgment of violation of law for administrative offenses should also be a dynamic process of legal application. Especially involving licensed businesses in the financial field such as securities, futures, insurance, etc., whether or not to impose criminal penalties on them not only requires a substantive interpretation of the constituent elements, but also should be a commercial deconstruction of the specific financial legal relationship. For the elemental acts of the crime of illegal business operation, it is necessary to exclude acts that do not disturb the market order, rather than limiting to the presence or absence of antecedent administrative provisions, so as to make an accurate judgment on whether the relevant interests are worthy of criminal law protection. At the same time, the act of operating requires the perpetrator to commit the act repeatedly and many times, and the perpetrator must subjectively have the criminal intent to continue to commit the act repeatedly in order to constitute the crime of illegal business operation.
In this context, the defense lawyers met with the client several times, clarified the status and role of the client in this case, combined with the legal provisions and typical jurisprudence, and submitted written opinions to the public security authorities and procuratorate at the first time in each important case node, arguing that the client subjectively did not have the criminal intent, and that there was a possibility that the case would not be constituted as a crime.
Second, the first time to meet with the client and provide timely legal assistance, so that the client fully understand their legal rights, to protect their legitimate rights and interests.
Defense lawyers in the client was detained in criminal detention on the day that is the first time to intervene in this case, many times to meet with the client, timely understanding of the case and provide legal assistance, so that the client fully understand their legal rights. At the same time, the questions raised by the parties and possible legal risks to answer and prompt, and communicate with the parties to the subsequent defense program, a strong protection of the legitimate rights and interests of the parties.
Third, combined with the case, timely contact with the contractor prosecutor, elaborating that the party does not have social dangerousness.
In judicial practice, illegal business crime in the determination of crime and non-crime there are still many disputes, in this context, the focus of the defense of the arrest stage is the application of coercive measures is appropriate. Therefore, the defense lawyer according to the meeting to understand the case, focusing on the client does not have social danger, according to the facts of the case and the performance of the client after the arrival of the case, to take the bail pending trial will not impede the proceeding of the lawsuit. The defense lawyers submitted to the public security authorities and the procuratorial authorities the “application for release on bail pending trial” and the “lawyer's opinion of not approving arrest”, and communicated with the arresting prosecutor. Ultimately, the procuratorial authorities adopted the lawyers' views and made a decision not to authorize the arrest.
