An acquaintance introduced the exchange of currency, and the middleman was convicted of the main cul

Introduction:

The child is studying abroad, and he asks his parents that he needs a lot of foreign currency;

The boss in a foreign country asked the finance of the domestic office to hurry up and make money, and he had an urgent overseas project to invest;

A customer asked the bank account manager if he could help find a way because the bank could not approve the large amount of funds he handled;

I have earned a lot of dollars doing business overseas, and I want to exchange ** yuan, but there is a limit on the quota;

According to the relevant regulations of the People's Republic of China, any organization or individual engaged in foreign exchange trading and settlement business within the territory of China must obtain the permission of the State Administration of Foreign Exchange and conduct it in a designated place. For some people or enterprises, the restrictions on the exchange quota and related approval requirements may not be realized or realized in the short term.

At this time, what will this group of people who have urgent needs for large currency exchange will do? Of course, it is all kinds of people who ask people to find "there is a way". It is said that in this world, any one person can have an interconnection with any one person through five or six people acting as intermediaries.

So, it's not hard for anyone to find someone who can help them exchange money through unconventional means. In the above figure, customer 1, who has foreign exchange needs, how to find the exchange boss 6, these middlemen are all introducers.

There is no need for customers to work hard offline to search, face-to-face communication and demands, just send a voice message, push a WeChat business card, and things will be done, and the rest only need to pay, pay, collect money, cooperate happily, and be satisfied

Question Raised:

The exchange boss 6 is generally a person from an underground bank, and the underground bank helps customers realize the cross-border transfer of funds through the way of foreign exchange "knocking", which constitutes the crime of illegal operation, which is not very controversial, so the question isDoes the intermediary introduced by the intermediary constitute the crime of illegal business operation? If so, is it a principal offender or an accessory?

01 Does the introducer constitute the crime of illegal business operation? Introduce a case in which the legal relationship is very complex and there are many people (the judgment is written in more than 20,000 words [Case No.: (2016) Hu 0115 Xingchu No. 4154]. For the sake of description, it is simplified as follows:

Bao had a need for foreign exchange, and found his cousin Wang Moujia, Wang Moujia asked his colleague Ge if he knew anyone, and Ge introduced Sun, and Sun introduced Ma Shi to provide foreign exchange services and exchanged Canadian dollars equivalent to RMB 40 million. (Isn't it perfectly verified: through less than 6 people, you can find the person you are looking for).

The above A, B, and C are all introducers, and Bao and Ma are the buyers and sellers who actually carry out foreign exchange purchase services.

Next, let's look at it in combination with the provisions of the law, do A, B, and C, as intermediaries who introduce the purchase and sale of foreign exchange, constitute the crime of illegal business operation?

Regulations of the People's Republic of China on Foreign Exchange Administration in 2008.

Article 45Buying and selling without permissionForex,Buying and selling in disguiseForex,Buying and sellingForex orIllegal introductionsIf the amount of foreign exchange bought and sold is relatively large, the foreign exchange administration authority shall give a warning, confiscate the illegal gains, and impose a fine of not more than 30% of the illegal amount; where the circumstances are serious, a fine of between 30% and the equivalent value of the illegal amount is to be imposed; where a crime is constituted, criminal responsibility is pursued in accordance with law.

2019 Interpretation of the Supreme People's Court and Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Illegally Engaging in Fund Payment and Settlement Business and Illegal Trading of Foreign Exchange.

Article 2: Violation of state regulations, implementationBuying and sellingForex orBuying and selling in disguiseWhere foreign exchange or other illegal foreign exchange trading disrupts the order of the financial market, and the circumstances are serious, it is to be convicted and punished as the crime of illegal business operations in accordance with the provisions of item 4 of Criminal Law article 225.

In the 19-year judicial interpretation, only the two categories of scalping and disguised buying and selling are characterized as criminal acts.

This seems to seem that illegal introduction and trading should only be regulated by administrative penalties?

Sun in the case, is also a woman with a lot of experience, 01 years sentenced to 7 months for illegal business operations, 09 years for illegal business sentenced to 1 year, 12 years for illegal business sentenced to 1 year and 6 months, because they were directly involved in the trading of foreign exchange was sentenced, three into the palace after being very careful, after carefully reading the law, continue to engage in foreign exchange-related business, butOnly introduction, not participation。Unfortunately, Ms. Sun did not have a thorough understanding of the law.

Not only the parties, but even some lawyers, are not able to fully understand this provision. Another case is inserted here [Case No.: (2012) Pu Xing Chu Zi No. 4796]:

The final court decision is as follows:

Note 1: The defense of innocence should be cautious, sometimes based on the facts of the case and the charges, as well as the evidence in the case, the defense of the lesser crime will achieve better defense results;

Note 2: The above two cases occurred before the issuance of the judicial interpretation in 2019, but this does not affect it, because the judicial interpretation of the year 1 year also does not expressly stipulate that illegal introduction and trading of foreign exchange constitutes the crime of illegal business operation.

02 If there is no explicit provision in the law, it still constitutes a crime?

1. The legal basis is very vague, but it cannot be said that there is no at all!

Article 45 of the 08 Foreign Exchange Administration Regulations leaves a tail: "If a crime is constituted, criminal responsibility shall be investigated in accordance with the law". Article 2 of the 19 judicial interpretation also mentions "......and other illegal trading of foreign exchange", which shall be dealt with as the crime of illegal business operation. These blanket statements happen to be the basis for introducing whether the act of buying and selling constitutes a crime.

Why is it not a crime to introduce others to buy and sell foreign exchange?This?

Because in practice, there may be a variety of situations: Is the introducer introducing the buyer or the seller? Or is it an intermediary between the two ends? If you introduce it to the buyer, is the buyer buying it purely for his own use, or is the buyer actually a foreign exchange scalper? Is the introducer purely public welfare free of charge, or does he collect money? Is it to collect money from both ends or only one to receive money? In addition, if a crime is constituted, the crime should be distinguished according to different circumstances: is it an imaginary competition or a combination of crimes? [Therefore, it is recommended that the consultant do not ask the lawyer as soon as he comes up: How many years will I be sentenced?] Because the legal issues are really complicated ......】

The various complex situations mentioned above can be summarized simply and crudely into 2 points (Mr. Shao hopes that friends who have the idea of exchanging foreign exchange by introducers must read and recite it well!). ）：

1. The buyer is purely for his own use (such as the daily expenses of studying abroad), and the introducer is also free to help, thenThe introducer is not guilty(However, the buyer and the introducer may be subject to administrative penalties; However, if the buyer says that it is for his own use, is it really for his own use, and why should people tell you the truth? ）

2. Any other circumstance other than the above is suspectedIllegal business operations(It is only a matter of distinguishing between minor crimes and serious crimes based on their status and role in the transaction, etc.).

2. The act of "business" in the crime of illegal business operation

Whether the perpetrator has a profit-making purpose is one of the key points in determining whether the crime of illegal business operation is constituted。If the perpetrator has been engaged in this kind of introduction business for a long time, rather than occasionally, and has made a profit from it, it can easily be determined to be a business act.

In addition, let's look at the entire transaction chain illustrated in the first case above, Bao found Xiaoma through A, B, and C, and both parties went through intermediaries to complete the domestic receipt of RMB and overseas payment of foreign currency, and the transaction between Bao and Xiaoma could not be completed without a middleman.

According to the relevant regulations, the buying and selling of foreign exchange must be carried out at state-designated premises, but these intermediariesObjectively, a trading platform has been built for those who buy and sell foreign exchange(outside the foreign exchange trading venues stipulated by the state), so it will be recognized by the judicial authorities as illegal foreign exchange trading.

03 Conclusion

I'll get here today, because there's still work to be done tomorrow.

The case analysis of Sun and her scalpers in this article is not finished, and the next part will talk about: Why is Sun, as the introducer, the principal offender, not an accomplice? What about the other co-defendants? Is it safe to exchange currency in Hong Kong? Can the penalty be mitigated if the introducer's profit is very low? and so on.

Lawyer Shao Shiwei

Shanghai Mankun Law Firm, Senior Lawyer.

Lawyer Shao Shiwei holds a master's degree in law from East China University of Political Science and Law, and has been practicing law for 7 yearsHandleLitigation and non-litigation casesMore than 300 piecesHe has a solid foundation in legal theory and practical experience in handling cases.

WasDozens of corporate legal counselHe has provided legal services for a number of Internet companies and blockchain companies at home and abroad, such as chain game platforms, metaverse social platforms, and e-commerce trading platforms, and has conducted in-depth research on digital asset protection, data cross-border, platform operation compliance, information protection, etc.

He is good at building a corporate compliance system based on the company's own business needs, combined with industry regulatory regulations, improving the company's internal governance structure, and being able to effectively meet or achieve the customer's business objectives, complete projects and conclude transactions on the basis of compliance to the greatest extent.

Main business areas:

Data Crime and Data Compliance Governance

Information network crimes, Internet black and gray industry crimes

Criminal defense involving blockchain and currency circle

Prevention, control and defense of high-incidence crime risks in enterprises

Typical cases

*In the case of a digital collection platform legal person suspected of fraud, the lawyer submitted a legal opinion of more than 10,000 words, communicated with the public security prosecutor for many times, and proposed the business behavior of the platform and the partiesThe not-guilty defense opinion was finally adopted by the judicial organsAfter 4 months of the legal person, the public security withdrew the case;

*A loan company was suspected of infringing on citizens' personal information, and was communicated and written by the prosecutor in chargeTens of thousands of words of legal opinions,The procuratorate finally returned the case to the policeThe case was withdrawncase

* In the case of a technology company legal person suspected of aiding information network criminal activities, the lawyer met to inquire about the case and investigate and collect evidence, and submitted it to the prosecutor in chargeThe evidence in this case is insufficient, and the parties do not constitute a crimeand other defense opinions, the procuratorate made a decision not to approve the arrest within 37 days, and finally withdrew the case;

* A case of a company legal person suspected of being false, combined with the criminal circumstances of the enterprise involved, the attitude of admitting guilt, and the return of stolen goodsAccording to the spirit of "fewer arrests, cautious prosecution, and cautious detention"., and put forward that the circumstances of the party's crime are obviously minor and the harm is not greatThe recommendation not to prosecute the parties was adopted by the procuratorate, the case was finally disposed of as a non-prosecution;

* In the case of an employee suspected of illegally absorbing deposits from the public, the client was sentenced to a suspended sentence by putting forward the defense opinion that the employee was not an executive of the company, was an accomplice, and that his family had withdrawn the corresponding illegal gainsThere were nearly 10 co-defendants, and only one of the employees was given a suspended sentence

Core Benefits:

He has rich practical experience, is diligent and responsible, efficient and proactive, and actively protects the legitimate rights and interests of the parties. A number of cases have been withdrawn by the public security organs, the procuratorate has not prosecuted, and the courts have sentenced them to suspended sentences.