Author/Lawyer Zhang Lu
【Brief Facts of the Case】
Company A's business scope includes R&D, sales and technical consulting of environmental protection technology, and does not have the business qualifications to operate securities and futures and carry out securities investment consulting, and is mainly engaged in the illegal business behavior of recommending the purchase of NEEQ stocks. As the actual controller of Company A, Jiang is responsible for the overall operation and business management of the company; Xu, Chen, and Hu are in charge of different business departments; Mr. Pan is in charge of the company's financial and personnel administration.
In 2018, Jiang and others, in the name of Company A, recruited a large number of salesmen to falsely claim to customers that they had "relatives" who specialized in the company's listing and transfer to the main board, and that they had insider channels to obtain high-quality original shares, and contacted other partners to guide and help investors open trading accounts, and induce them to inject large amounts of funds into the accounts. At the same time, Jiang and Cheng and others, the shareholders of the previous family (handled in a separate case), agreed on the reserve price in advance, and Cheng used his own and his relatives' accounts to trade a specific NEEQ stock, creating trading volume and raising the price, and then Jiang instructed the employees to buy the NEEQ shares of Cheng and others at a high price, so as to make huge profits from the price difference.
The employees of Company A work together in the same place, and the company has established a WeChat work group covering all members, in which the boss and key management personnel publish their performance and share their skills and false stock profit charts to guide employees. Employees are required to report on a regular basis. The whole company has formed a criminal gang with strict management, close cooperation of all members, and mutual help and cooperation.
Between 2018 and August 2019, the criminal gang sold NEEQ stocks totaling RMB 16948010 to 13 investors through the above-mentioned methods. On August 20, 2019, defendants Chen, Hu, Pan, and Jiang were arrested by the public security organs.
【Verdict】
1. Defendant Chen X committed the crime of illegal business operation and was sentenced to six years and six months imprisonment and confiscation of property of RMB 600,000
2. Defendant Hu X committed the crime of illegal business operation and was sentenced to six years and six months imprisonment and confiscation of property of 600,000 yuan;
3. Defendant Pan X committed the crime of illegal business operation and was sentenced to three years and six months imprisonment and a fine of 100,000 yuan;
4. Continue to recover unlawful gains from the case, and return them to each victim in proportion; For the part of the losses that are insufficient to make up, the defendants are to be ordered to jointly make restitution, of which the defendant Pan X bears joint responsibility for restitution within the scope of his illegal gains.
5. Frozen or sealed bank account deposits and their fruits associated with each defendant in this case are to be included in the scope of confiscation of the defendants' assets, fines, recovery of unlawful gains, and orders for restitution in items 1 through 4 of this judgment to be enforced.
6. A number of items seized from the three defendants, such as laptops, mobile phones, and USB flash drives, were confiscated.
[Lawyer's Interpretation]
On the focus of the dispute in this case.
Focus 1: On the role and status of the defendants in the joint crime
It is necessary to clarify whether the three of them participated in the distribution of illegal gains and their roles in this case. First of all, based on the confessions of the co-defendants and the bank account transactions involved in the case and other relevant documentary evidence, it was jointly confirmed that the aforementioned three defendants were all able to receive a certain share of the illegal gains, and that Chen and Hu had a larger share than Pan, ranging from hundreds of thousands of yuan to one million yuan. Secondly, on the issue of role positioning. The business scope of Company A established by Jiang and others did not belong to the securities companies approved by the competent authorities, and none of the personnel had securities investment consulting qualifications. Therefore, the conduct of Jiang and more than 30 other people (including the three defendants) belongs to the act of "illegally operating securities business without the approval of the relevant competent state authorities" as stipulated in Article 225 (3) of the Criminal Law of the People's Republic of China, and meets the criminal elements of the crime of illegal business operation.
Looking at this case as a whole, all the perpetrators, including the three defendants, have been involved in illegal business activities since they joined the company, and they are clearly aware that they are collaborating with other co-defendants to complete the crime of illegal business operation and share illegal benefits, and should be evaluated as a whole and bear criminal responsibility for the consequences caused by the joint crime (i.e., the amount of illegal business operations in the whole case).
Focus 2: On the issue of the sentencing circumstances of the defendants
The sentencing circumstances of Chen X and Hu X include: 1. The two are the principal offenders in the joint crime, but because their role is relatively small compared to the first principal offender's co-defendant, Jiang X; 2. The two truthfully confess their crimes after being brought into the case; 3. The two voluntarily admit guilt in court. The above circumstances may be given a lighter punishment as appropriate.
Pan's sentencing circumstances include: 1. He is an accomplice in a joint crime, and his punishment is commuted in accordance with law, but at the same time, because he is an accomplice with a larger role, he must be sentenced differently than his co-defendant who is an ordinary accomplice; 2. He truthfully confesses his crime after being brought into the case; 3. Pan voluntarily admits guilt in court. The above circumstances may be given a lighter punishment as appropriate.
To sum up, Chen, Hu, and Pan jointly illegally engaged in securities business, disrupting market order, and the circumstances were particularly serious, and the court punished them within the sentencing range of "a sentence of more than five years imprisonment, and a fine of not less than one time but not more than five times the amount of illegal gains, or confiscation of property" in accordance with law.