Chongqing Yuzhong District People's Court
Criminal Judgment
Public prosecution agency Chongqing Yuzhong District People's Procuratorate.
Defendant Zhao Cheng . Due to this case, he was arrested on October 29, 2015, and was criminally detained by the Chongqing Municipal Public Security Bureau on the same day, and was arrested on December 5, 2015. He is currently being held at the Yuzhong District Detention Center in Chongqing.
Defenders Zhang* and Qin** are lawyers from Chongqing ** Law Firm.
The People's Procuratorate of Yuzhong District, Chongqing City, accused the Defendant Zhao Cheng A public prosecution was filed with this court on the 1st. This court formed a collegial panel in accordance with the law and applied ordinary procedures. It held a public hearing on the case on the 21st of the same month. During the trial, the public prosecution agency made an application to postpone the trial, which was approved by the collegial panel in accordance with the law. The case was heard in public again on September 8 of the same year. The Chongqing Yuzhong District People's Procuratorate assigned prosecutor Diao * to appear in court to support the prosecution. The defendant Zhao Chengx and his defenders Zhang * and Qin ** attended the court to participate in the proceedings. The trial is now concluded.
The People's Procuratorate of Yuzhong District, Chongqing City accused the defendant Zhao Cheng Illegal foreign exchange business in Jiefangbei, Yuzhong District, Chongqing and other places. By purchasing large quantities of US dollars, Thai baht and other foreign currencies from Zhang, Wang, Huang and others from Yunnan, Fujian and other places (all dealt with in separate cases), in Yuzhong District, Chongqing For sales in other places, a total of RMB 217,698,925, equivalent to US$33,970,300, was paid to Wang Moumou and three others.
Between February 27, 2014 and May 25, 2015, Zhao ChengYuan is used to purchase Thai baht, which is equivalent to 15.8053 million U.S. dollars.
Between May 12, 2013 and November 27, 2014, Zhao Cheng When purchased in US dollars, the RMB 105,639,392 was equivalent to US$16,484,300.
Between February 3, 2013 and September 30, 2015, Zhao Cheng When buying U.S. dollars, the 10.771052 million yuan is equivalent to 1.6807 million U.S. dollars.
In order to accuse the defendant Zhao Cheng Evidence materials such as appraisal reports shall be used as evidence. The public prosecution organ believes that the behavior of defendant Zhao Chengx constitutes the crime of illegal business operations, and the circumstances are particularly serious. It requests this court to sentence him in accordance with the provisions of Article 225 of the Criminal Law of the People's Republic of China.
The defendant Zhao ChengX and his defender have no objection to the charges and the amount of the crime charged by the above public prosecution agency. Zhao Chengx argued that the property seized by the public security organs was used for his financial management. His defender believed that Zhao Cheng After being brought to justice, he truthfully confessed his crime and asked for a suspended sentence.
After trial, it was found that the defendant Zhao Cheng Foreign exchange trading business. Among them, Zhao Cheng The above-mentioned three people were given 217,698,925 yuan, equivalent to 33,970,300 U.S. dollars, and were later sold at a higher price in Yuzhong District of this city and other places, making an illegal profit of more than 150,000 yuan. The specific facts are as follows:
1. The defendant Zhao Cheng RMB 101,288,481 was used to purchase Thai baht, equivalent to US$15,805,300.
2. The defendant Zhao ChengX from May 12, 2013 to November 2014During the period of March 27, a total of 105,639,392 yuan was paid to Wang Moumou multiple times to purchase U.S. dollars, equivalent to 16,484,300 U.S. dollars.
3. The defendant Zhao Cheng Used to purchase US dollars, equivalent to US$1,680,700.
It was also found that the defendant Zhao Cheng Later, he truthfully confessed his main criminal facts. The public security organs searched and seized 59,456 yuan in the bag that Zhao Cheng 360,100 rubles, 290,000 yen, 17,040 euros, 1,000 Hong Kong dollars, 2,960 Swiss francs, 17,394 US dollars, 100 Singapore dollars, and bank cards, passbooks, USB shields, ID cards, account books, accounting books, express delivery orders, mobile phones, A number of currency detectors, paper notes, phone books, etc.
The defendant Zhao Cheng Transaction statistics, seizure lists, situation descriptions, household registration information, etc., testimonies of witnesses Wang XX, Zhang XX, Huang XX, Zhao XX, Xie XX, Chen, Zhao XX, Xu XX and others, Defendant Zhao Cheng
The defendant Zhao Cheng Prepare for transactions. In his confession during the investigation stage, he also admitted that the foreign exchange found by the public security organs at his residence was used by him to sell for profit and get the price difference. Therefore, it can be concluded that the foreign exchange seized by the police from his home was intended to be sold illegally, and his arguments in court were not accepted.
Based on the evidence in this case, it can be determined that the defendant Zhao Cheng , that is, he has subjective intention to illegally buy and sell foreign exchange. Zhao Cheng Therefore, it cannot be concluded that he subjectively had the intention to illegally trade foreign exchange with Wang Moumou and others; objectively, when buyingIn selling transactions, it is basic common sense that the seller can only sell after the buyer decides to buy. The same is true for illegal foreign exchange transactions. Moreover, consideration should be paid for illegal purchases of foreign exchange, and the time for payment of consideration is entirely based on the agreement between the buyer and the seller. Therefore, the specific circumstances of the transaction cannot affect the factual determination of this case. The current law stipulates that for the purpose of profit, foreign exchange is bought and sold outside the trading venues specified by the state. If the circumstances are serious, the buying and selling behavior will constitute the crime of illegal business operations. Therefore, objectively it cannot be concluded that Zhao Chengx, Wang Moumou and others jointly engaged in illegal foreign exchange transactions. Therefore, this case should not be considered a joint crime. The defense opinions put forward by Zhao Chengx's defender regarding joint crimes and accomplices will not be adopted. Based on the facts of this case and the amount of the crime, defendant Zhao Cheng The corresponding defense opinions of the defender shall not be adopted.
This court believes that the defendant Zhao Cheng His behavior has constituted the crime of illegal business operations and should be punished in accordance with the law. The charges were established by the People's Procuratorate of Yuzhong District, Chongqing. The defendant Zhao ChengX truthfully confessed the main criminal facts after he was brought to justice and was given a lighter punishment in accordance with the law. Adopt the defender's corresponding defense opinions. In accordance with Article 225, Item (4), Article 67, Paragraph 3, Article 47, Article 52, Article 53, and Article 60 of the Criminal Law of the People's Republic of China, According to the provisions of the four articles, the verdict is as follows:
1. The defendant Zhao Cheng Fifty thousand yuan.
(The sentence shall be calculated from the date of execution of the judgment. If the sentence is detained before the execution of the judgment, one day of detention shall be counted as one day of the sentence, that is, starting from October 29, 2015 From August 28, 2022.)
2. The illegal income of 150,000 yuan from the defendant Zhao Cheng Foreign exchange of 4,673,290 baht, 269,000 Taiwan dollars, 16,200,000 Korean won, 8,501 Malaysian dollars, 4,000,000 Indonesian rupiahs, 360,100 rubles, 290,000 yen, 17,040 euros, 1,000 Hong Kong dollars, 2,960 Swiss francs, 17,394 US dollars, and 100 Singapore dollars were confiscated and turned over to the national treasury in accordance with the law. Other property seized shall be handled by the public security organs in accordance with the law.
The above fines shall be paid to this court within ten days from the date when this judgment takes effect.
If you are dissatisfied with this judgment, you may appeal through this court or directly to the Chongqing No. 5 Intermediate People's Court within ten days from the second day of receipt of this judgment. If the appeal is made in writing, one original and two copies of the appeal should be submitted.
Presiding Judge Xu**
People's Assessor Yao**
People's Assessor Xie**
November 9, 2016
Clerk Li**
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