Recently, the case of Wang, who was suspected of the crime of illegal use of information networks and was represented by attorney Li Mingzhen of Beijing King&Capital Law Firm, achieved a favorable outcome: During the review and prosecution phase, after the defense attorney submitted two legal opinions recommending non-prosecution and engaged in thorough communication with the procuratorial authorities, the procuratorial authorities ultimately accepted the defense’s arguments. Rather than issuing a decision to prosecute or not to prosecute Wang, they directly lifted the coercive measures, terminated the criminal proceedings, and transferred the case to administrative proceedings. This outcome is not only a testament to the lawyer’s steadfast dedication but also to the professional responsibility of the procuratorate!
The significance of this case lies in the following: First, through meticulous review of the case files and the submission of two progressive legal opinions advocating for non-prosecution, the defense counsel argued simultaneously on both the grounds of conviction and sentencing, thereby providing a solid defense basis for the investigating authorities to terminate the criminal proceedings; Second, when the prosecuting authorities were weighing charges between “Illegal Business Operations” and “Illegal Use of Information Networks,” the defense counsel, through a precise comparison of the monetary thresholds, ruled out the applicability of the “Illegal Business Operations” charge; Third, during the defense process, the defense attorney proactively argued that there was no necessity for criminal punishment and actively urged the prosecuting authorities to apply the principle of “reverse coordination between criminal and administrative proceedings” in handling this case, thereby securing the best possible defense outcome for the client—the criminal proceedings were terminated at the prosecution review stage, and the case did not even enter the non-prosecution decision process, resulting in a favorable outcome of a complete acquittal for the client.
I. Termination of Criminal Proceedings:
Dual Pathways to Acquittal: Exclusion Based on Lack of Constituent Elements and Minor Circumstances
Upon accepting the retainer, Attorney Li Mingzhen immediately conducted a comprehensive review of the case files, meticulously verifying each piece of evidence on record—including interrogation transcripts, electronic data extraction records, and transaction histories—and submitted both a “Lawyer’s Opinion on Non-Prosecution” and a “Supplementary Opinion on Non-Prosecution” to the procuratorial authorities on two separate occasions. These submissions argued, across the following four levels, that the case did not meet the conditions for prosecution and that criminal proceedings should be terminated:
(1) The Conduct in Question Does Not Fall Under Any of the Three Types of Conduct Defined in the Offense and Constitutes a Neutral Assisting Act
Article 287-1 of the Criminal Law defines three types of conduct: establishing websites or communication groups for use in illegal or criminal activities; publishing information related to the production or sale of prohibited or controlled items; and publishing information for the purpose of committing fraud or other illegal or criminal activities. In this case, the suspect Wang was criminally detained for selling set-top boxes and installing the “X TV” software. However, Wang was neither the creator of the “X TV” software nor a direct seller of the illegal software. His participation in the set-top box after-sales group was solely for the purpose of providing normal after-sales support and answering questions, and had no connection whatsoever to the illegal or criminal activities of other individuals involved in the case. His conduct does not fall under any of the categories of the crime of illegal use of information networks; at most, it constitutes a neutral act of assistance exploited by others, which is not subject to criminal punishment and does not meet the prerequisites for applying the catch-all provision of “other circumstances of a serious nature.”
(2) The Amount Involved in the Case Does Not Meet the Prosecution Threshold for “Circumstances of a Serious Nature”
According to Article 10 of the “Interpretation by the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases Involving the Illegal Use of Information Networks and Aiding Criminal Activities on Information Networks,” illegal proceeds must exceed 10,000 yuan to constitute “serious circumstances.” In this case, Wang’s sales amounted to just over 5,000 yuan; even if the entire amount were deemed illegal proceeds, it would still fall far short of the 10,000-yuan threshold for criminal liability. Furthermore, there are no other circumstances indicating “serious circumstances,” such as the establishment of illegal websites or the creation of a sufficient number of communication groups.
(3) Lack of Subjective Awareness of Illegality; Does Not Meet the Requirement of Intent for the Crime of Illegal Use of Information Networks
The subjective element of the crime of illegal use of information networks is intent, meaning that the perpetrator knowingly and actively commits one of the three types of conduct specified in Article 287-1 of the Criminal Law. In this case: First, Wang did not initiate the act with criminal intent; the installation of the “Certain TV” software on the set-top box was done at the customer’s request; Second, Wang was unable to open the “X TV” software during the installation and could not have been aware of its illegal nature. He consistently maintained a clear, law-abiding attitude toward the conduct in question—in a chat record with a buyer, he explicitly stated that the set-top boxes he sold could not be used to watch overseas channels from Hong Kong, Macao, and Taiwan, nor would he install any illegal software. The defense counsel specifically filed a motion to obtain evidence regarding this matter to establish his subjective state through objective evidence; Third, Mr. Wang has no prior criminal record and did not use false identities or concealed payment methods to evade investigation. Considering his past history, communication style, and transaction habits, it cannot be inferred that he was aware of the illegality of his actions.
(4) Even if we assume otherwise, this case still meets the conditions for a conditional non-prosecution
Even if Mr. Wang’s actions were deemed unlawful, he sold the set-top box to only one person and did not distribute it to the general public, resulting in minimal harm; after being taken into custody, he made a truthful confession, pleaded guilty, and accepted the penalty, and is willing to fully return the illicit proceeds; furthermore, he is a first-time and occasional offender who poses no danger to others. In accordance with the spirit of Article 177, Paragraph 2 of the Criminal Procedure Law, where the circumstances of the crime are minor and no criminal penalty is required under the provisions of the Criminal Law, there is no need to prosecute. The defense attorney also submitted similar cases to support this argument: In the decision not to prosecute issued by the Baoshan District People’s Procuratorate of Shuangyashan City, Zhang Moumou joined the relevant WeChat group to conduct personnel statistics and did not establish a separate communication group; the procuratorate determined that his actions did not constitute a crime and issued a statutory decision not to prosecute pursuant to Article 177, Paragraph 1 of the Criminal Procedure Law; In the decision on non-prosecution issued by the People’s Procuratorate of Baita District, Liaoyang City, Zhu Moujia established twenty WeChat groups for others to conduct illegal communications and profited by more than 2,500 yuan. The procuratorate determined that the circumstances of his crime were relatively minor, that he voluntarily pleaded guilty and accepted punishment, and that a criminal sentence was not required; accordingly, it issued a conditional non-prosecution decision pursuant to Paragraph 2 of Article 177 of the Criminal Procedure Law. These two non-prosecution cases, from the perspectives of “no criminal offense” and “minor circumstances,” respectively, corroborate the dual lines of argument presented in the defense’s submission for this case.
II. Distinction of Criminal Charges:
Why This Case Also Does Not Constitute the Crime of Illegal Business Operations
(I) The Investigating Authorities’ Consideration of the Charge and Exclusion of the Monetary Threshold
In this case, because the “Certain TV Software” installed on the set-top boxes sold by Wang constituted illegal overseas television network reception software, and the set-top boxes on which this software was installed constituted illegal overseas television reception equipment, the investigating authorities considered the applicability of the crime of illegal business operations during their review. According to the “Notice on Strictly Cracking Down on Criminal Activities Involving Illegal Television Network Reception Equipment in Accordance with the Law” issued by four departments, including the Supreme People’s Court and the Supreme People’s Procuratorate, engaging in for-profit activities—such as producing or selling illegal television network reception equipment and software, providing download services for illegal broadcast and television reception software, or providing link services for the reception of illegal broadcast and television program channels—in violation of national regulations and thereby disrupting market order, Criminal liability for the crime of illegal business operations shall only be pursued if the amount involved in an individual’s illegal business operations exceeds 50,000 yuan or the amount of illegal gains exceeds 10,000 yuan.
In Wang’s case, however, the sales amount involved was less than 6,000 yuan, falling short of both the 50,000-yuan threshold for the amount involved in illegal business operations and the 10,000-yuan threshold for illegal gains. Objectively, the monetary thresholds for the crime of illegal business operations could not be met, and thus the charge could not be established from the outset. In his brief, the defense attorney conducted a precise comparison of these factors, helping the investigating authorities clarify the boundaries of the charges, avoid inconsistencies in the application of charges, and clear away obstacles regarding charge selection for the eventual termination of the criminal proceedings.
(2) Practical Key Points for Distinguishing Between the Crime of Illegal Business Operations and the Crime of Illegal Use of Information Networks
The issue of charge selection in this case holds broader significance for similar “set-top box + software” cases. The distinction between the two offenses can be understood from four perspectives:
1. Different Legal Interests Protected
The crime of illegal business operations protects market order, centered on the unauthorized operation of businesses involving items subject to exclusive operation, exclusive sale, or restricted trade; the crime of illegal use of information networks protects public order in cyberspace, essentially involving the execution of preparatory criminal acts in the online domain.
2. Different Modes of Conduct
The crime of illegal business operations requires market-oriented commercial conduct, whereas the crime of illegal use of information networks is limited to “online activities” such as establishing website clusters or publishing information related to illegal or criminal acts; whether the perpetrator actually carries out illegal or criminal activities offline is not an element of this offense.
3. Different Nature of the Threshold for Criminal Liability
The crime of illegal business operations centers on quantitative standards such as the amount of business transactions and illicit gains; while the crime of illegal use of information networks also involves quantitative standards, it places greater emphasis on the organizational nature and dissemination of the conduct.
III. Reverse Linkage Between Criminal and Administrative Proceedings: The Key Procedural Shift in This Case
(1) Procedural Unfolding of the Reverse Linkage Between Criminal and Administrative Proceedings
Reverse linkage between criminal and administrative proceedings refers to the procedural mechanism whereby judicial authorities refer cases—in which criminal liability need not be pursued under the law but administrative penalties should be imposed—back to administrative authorities for handling. The legal basis for this includes: Article 27 of the Administrative Penalties Law, which stipulates that where criminal liability need not be pursued or criminal punishment is waived under the law but an administrative penalty should be imposed, judicial authorities shall promptly transfer the case to the relevant administrative authorities; Article 177, Paragraph 3 of the Criminal Procedure Law, which states that in cases where the People’s Procuratorate decides not to prosecute, if the person not prosecuted is subject to administrative penalties or the confiscation of illegal gains, the procuratorate shall issue a procuratorial opinion and transfer the case to the relevant competent authority for handling; and Article 373 of the Rules of the People’s Procuratorate on Criminal Procedure further clarifies that the procuratorate shall issue a procuratorial opinion and transfer it, together with the decision not to prosecute, to the relevant competent authority, and shall require a timely report on the outcome of the handling. In recent years, the Supreme People’s Procuratorate has also specifically deployed efforts to promote two-way coordination between criminal and administrative proceedings and to strengthen oversight of administrative violations; reverse coordination has become an important institutional channel within the system for addressing minor offenses. It should be noted that reverse coordination is not a procedure exclusive to cases where a decision not to prosecute is issued: for cases where it is determined during the investigation or review-for-prosecution stages that the conduct does not constitute a crime or that prosecution is unnecessary, the handling authorities may likewise lift coercive measures, terminate criminal proceedings, and transfer the case to administrative authorities for handling; the present case falls into this category.
After reviewing the case, the investigating authorities accepted the defense’s arguments and determined that there was no need to prosecute. Rather than proceeding to a decision on prosecution or non-prosecution, they directly lifted the coercive measures against Mr. Wang, terminated the criminal proceedings, and transferred the case to the administrative authorities for handling. Compared to a decision not to prosecute, this approach—terminating proceedings at the review-for-prosecution stage and directly transferring the case to the administrative track—imposes a lighter procedural burden on the party involved, provides a more thorough exoneration, and avoids the potential risk of aggravating circumstances arising from the prior decision not to prosecute should similar cases subsequently result in criminal convictions.
(II) Practical Recommendations for Reverse Linkage Between Criminal and Administrative Proceedings
The experience from this case demonstrates that reverse linkage between criminal and administrative proceedings is not only a procedure that procuratorial organs apply ex officio but also a defense strategy that defense attorneys can proactively pursue and actively promote:
1. A Key Aspect of Defense Strategy: The Procedural Application of Reverse Linkage Between Criminal and Administrative Proceedings
In cases involving minor circumstances, amounts near the threshold, or conduct that straddles the line between administrative violations and criminal offenses, the defense’s objectives should not be limited to merely seeking an “acquittal” or a “lenient sentence.” In cases where the evidentiary basis for an acquittal is insufficient and the necessity for prosecution is clearly lacking, facilitating the transfer of the case to the administrative penalty track through reverse linkage—whether by seeking a decision not to prosecute followed by referral to administrative authorities, or, as in this case, by urging the prosecuting authority to directly terminate criminal proceedings—is often the most practical solution for maximizing the client’s interests.
2. Legal Argumentation Regarding the Lack of Necessity for Criminal Punishment
The prerequisite for reverse coordination between criminal and administrative proceedings is that “criminal liability need not be pursued.” Lawyers should systematically argue for the scope for non-criminal measures by focusing on factors such as the severity of the harm caused, the discrepancy between the amount involved and the prosecution threshold, and the risk the perpetrator poses to society; they should also clearly demonstrate that administrative penalties are sufficient to achieve the objectives of punishment and prevention, thereby providing the investigating authorities with a complete chain of reasoning justifying “dismissal of charges” or “transfer of the case.”
3. Reducing Resistance to Procedural Transition Through Plea Agreements and Restitution
The application of prosecution termination and reverse referral depends largely on the investigating authorities’ assessment of the perpetrator’s likelihood of reoffending and level of resistance. When the defendant sincerely repents, voluntarily surrenders illicit gains, and complies with all summonses, this substantially alleviates the professional ethical concerns that case handlers may have regarding exoneration.
4. Ensuring the Protection of Subsequent Rights During Reverse Referral
After a case is referred to administrative authorities, attorneys should continue to monitor whether the type and severity of administrative penalties are commensurate with the harm caused by the offense, thereby preventing the “conversion from criminal to administrative proceedings” from degenerating into “heavy administrative penalties replacing criminal punishment.” Attorneys may, in accordance with the law, represent clients in making statements, presenting defenses, or participating in hearing procedures, thereby extending the effectiveness of the defense into the administrative phase.
Conclusion
Against the backdrop of modernizing the management of minor offenses, the review and prosecution stage is one of the most valuable and critical phases for criminal defense. By meticulously reviewing case files to identify favorable facts, constructing a framework for exoneration through dual pathways, clarifying the boundaries of criminal charges through comparative analysis of amounts involved, creating procedural conditions through plea agreements and restitution, and proactively advocating for seamless coordination between criminal and administrative proceedings, lawyers strive to resolve cases that do not warrant criminal punishment before trial. However, in addition to effective defense by attorneys, a favorable case outcome also depends on the sense of responsibility demonstrated by the investigating authorities. In this case, the procuratorate displayed a high level of professionalism and precise application of procedures, which ultimately resulted in a concerted effort to secure a complete acquittal for the client. Beyond the specifics of this case, daily compliance in business operations—whether for enterprises or individuals—remains an unchanging bottom line. As the saying goes: Only by operating in compliance can one proceed steadily and go far!
