Beijing Municipality Haidian District People's Court Criminal Judgment in the Cai Zhuohua et. al. Illegal Operation of a Business Trial

The following translation of the judgment in the Cai Zhuohua et. al. illegal operation of business trial was prepared by CECC staff based on versions provided by the China Aid Association. The original Chinese version of the judgment can be viewed by clicking "more" below.

Additional background on this case is available here.

Beijing Municipality Haidian District People's Court
Criminal Judgment
(2005) Hai Judicial Criminal First Instance Document Number 1722

Public Prosecutorial Agency Beijing Municipality Haidian District People's Procuratorate

Defendant Cai Zhuohua, male, born April 10, 1971 in Hunan province, Hengyang city, Han ethnicity, junior college education, unemployed, residing at Beijing municipality, Xuanwu district, Pingyuanli community, building 5, entrance 12, number 402. Detained on September 11, 2004, on suspicion of illegally operating a business, and arrested on October 20 of that same year. Currently in custody at the Beijing municipality Haidian district detention center.

Defense counsel Zhang Xingshui, a lawyer at the Beijing Jingding Law Firm.

Defendant Xiao Gaowen, male, born September 20, 1968 in Hunan province, Hengyang city, Han ethnicity, high school education, unemployed, residing at Hunan province, Hengyang city, Yanfeng district, Suyanjing, number 16, household 2-103. Detained on September 27, 2004, on suspicion of illegally operating a business, and arrested on October 20 of that same year. Currently in custody at the Beijing municipality Haidian district detention center.

Defense counsel Jin Xiaoguang, a lawyer at the Beijing Jingding Law Firm.

Defendant Xiao Yunfei, female, born January 6, 1972 in Hunan province, Hengyang city, Han ethnicity, junior high school education, unemployed, residing at Hunan province, Hengyang city, Yanfeng district, Suyanjing, number 16, household 2-103. Detained on September 27, 2004, on suspicion of illegally operating a business, and arrested on October 20 of that same year. Currently in custody at the Beijing municipality Haidian district detention center.

Defense counsel Gao Zhisheng, a lawyer at the Beijing Shengzhi Law Firm.

Defense counsel Fan Yafeng, editor in the editorial department of "Legal Research" at the Institute of Law, China Academy of Social Science Law Institute.

Defendant Hu Jinyun, female, born September 23, 1962 in Hubei province, Jichun county, Han ethnicity, junior high school education, unemployed, residing at Hubei province, Jichun county, Caohe township, Xiacao village, Siyin district. Detained on September 27, 2004, on suspicion of concealing illegally acquired goods, and arrested on October 20 of that same year. Currently in custody at the Beijing municipality Haidian district detention center.

Defense counsel Teng Biao, faculty at China University of Politics and Law.

The Beijing Municipality Haidian District People's Procuratorate charged defendants Cai Zhuohua, Xiao Gaowen, and Xiao Yunfei with illegally operating a business, and defendant Hu Jinyun with concealing stolen goods pursuant to Beijing Municipality Haidian District People's Procuratorate Indictment Document [2005] Number 100, and initiated a prosecution with this court. This court placed the case on its docket on June 3, 2005, constituted a collegial panel in accordance with the law, and tried this case in open court. The Beijing Municipality Haidian District People's Procuratorate appointed procurator Li Muzi to appear in support of the prosecution, and defendant Cai Zhuohua and his defense counsel Zhang Xingshui, defendant Xiao Gaowen and his defense counsel Jin Xiaoguang, defendant Xiao Yunfei and her defense counsel Gao Zhisheng and Fan Yafeng, and defendant Hu Jinyun and her defense counsel Teng Biao appeared in court to participate in the litigation. Trial proceedings have now concluded.

The Beijing Municipality Haidian District People's Procuratorate charged:

Defendants Cai Zhuohua, Xiao Gaowen, and Xiao Yunfei, using book samples obtained from third parties or materials downloaded from the Internet for content, did employ third parties in this city's Haidian district, Lanyuan community, building 24, entrance 1, number 602, to engage in illegal publishing, and used a printing press to illegally print books. On September 11, 2004, in south storage area 3A of the Beijing Fifth Ring Jishun Tong Storage and Transportation Company Limited in this city's Daxing district, Jiugong township, 24 Jiuzhong Road, public security agencies tracked down and recovered over 200,000 volumes of books illegally printed by defendants Cai Zhuohua, Xiao Gaowen, and Xiao Yunfei, which the Beijing Municipal Press and Publication Administration authenticated as illegal publications. On September 11, 2004, civilian police captured defendant Cai Zhuohua in this city's Haidian district, Qinglong Bridge, on the road in front of the Central Party School's south gate. The next day, in the vicinity of this city's Haidian district, Dayun village, defendant Hu Jinyun, having full knowledge that defendants Xiao Yunfei and Xiao Gaowen had given her 80,000 yuan in illicit funds to illegally operate a business, nonetheless accepted said 80,000 yuan and deposited it in the bank under her own name. On September 27 of the same year, civilian police captured the defendant Hu Jinyun in Hunan province, Hengshan [sic] city, Zhongtang village, group 6. The same day, based on the information that Hu Jinyun provided, civilian police captured the defendant Xiao Gaowen in Hunan province, Hengyang city, at the entrance to Yueping Park. The same day, based on the information that Xiao Gaowen provided, civilian police captured the defendant Xiao Yunfei in Hunan province, Hengyang city, inside a household.

With respect to the foregoing charges, the procuratorial agency provided this court with the relevant evidentiary materials, and believes that the behavior of defendants Cai Zhuohua, Xiao Gaowen, and Xiao Yunfei constitutes illegally operating a business, and that the behavior of defendant Hu Jinyun constitutes concealing illegally acquired goods, and further that Xiao Gaowen and Hu Jinyun have rendered meritorious service, and submit to this court that the criminal culpability of the four defendants be treated separately in accordance with the law.

Defendant Cai Zhuohua defended himself on the grounds that the compiling and printing of the books was not done to seek personal profit, that the origin of the funds for printing the books was what he had accumulated over many years of engaging in business, that no other person gave him capital, and that his behavior was not the behavior of operating a business. His defense counsel believes that Cai Zhuohua's compiling and printing of books was not done with the purpose of pursuing illegal profits, and did not severely harm social order and disrupt market order, and that his behavior does not constitute the crime of illegally operating a business.

Defendant Xiao Gaowen defended himself on the grounds that he engaged in neither buying nor selling, so there was no illegal operation of a business. His defense counsel believes Xiao Gaowen was employed by Cai Zhuohua to carry out printing operations, and was unclear as to what publishing formalities were necessary for this operation, and that his behavior does not constitute the crime of illegally operating a business.

Defendant Xiao Yunfei defended herself on the grounds that she did not compile and print books to make money, and that the 80,000 yuan she gave to Hu Jinyun was not acquired from illegally operating a business. Her defense counsel believes Xiao Yunfei did not have the status of a business operator, the books which she compiled and printed were publications intended for internal use, it was not necessary to undertake any publishing formalities, and they were not illegal publications. These books did not enter the market, were not linked to any transaction, could not have disrupted market order, and there was no seeking after profit, which is the core characteristic of "operating a business," and therefore it could not be considered operating a business. Therefore her behavior does not constitute the crime of illegally operating a business.

Defendant Hu Jinyun defended herself on the grounds that Xiao Yunfei gave her 80,000 yuan as living expenses, and she was not aware that the funds were illegally acquired. Her defense counsel believes there is no evidence proving whether or not the 80,000 yuan involved in this case were illegally acquired funds. Xiao Gaowen and Xiao Yunfei were members of Hu Jinyun's family, and their giving Hu Jinyun the 80,000 yuan for living expenses was a kind of gift between relatives. Hu Jinyun had no way to determine that the 80,000 yuan were illegally acquired funds, and therefore, Hu Jinyun's behavior does not constitute the crime of concealing illegally acquired goods.

The proceedings revealed that defendants Cai Zhuohua, together with Xiao Gaowen and Xiao Yunfei, using book samples obtained from third parties or materials downloaded from the Internet for content, did employ third parties in Beijing municipality, Haidian district, Lanyuan community, building 24, entrance 1, number 602, to engage in illegal publishing, and used a printing press to illegally print books. The specific division of labor among the three was: with Cai Zhuohua being the person in charge, it was Cai Zhuohua who contacted the professionals and provided the funds to Xiao Yunfei, it was Xiao Yunfei who led the task of typesetting and paid the printing costs, it was Xiao Gaowen who took the electronic files to the layout factory for the production of the films, who contacted the printing press for printing and binding, and who contacted the shipping company and at the end sent books to all areas in accordance with the request of Cai Zhuohua. On September 11, 2004, in south storage area 3A of the Beijing Fifth Ring Jishun Tong Storage and Transportation Company Limited in this city's Daxing district, Jigong township, 24 Jiuzhong Road, public security agencies tracked down and recovered 237,776 volumes of books illegally printed by defendants Cai Zhuohua, Xiao Gaowen, and Xiao Yunfei, which the Beijing Municipal Press and Publication Administration authenticated as illegal publications. On the same day civilian police captured defendant Cai Zhuohua in this city's Haidian district, Qinglong Bridge, on the road in front of the Central Party School's south gate. The next day, in the vicinity of this city's Haidian district, Dayun village, defendant Hu Jinyun, having full knowledge that defendants Xiao Yunfei and Xiao Gaowen had given her 80,000 yuan in illicit funds to illegally operate a business, nonetheless accepted said 80,000 yuan and deposited it in the bank under her own name. On September 27 of the same year, civilian police captured the defendant Hu Jinyun in Hunan province, Hengyang city, Zhongtang village, group 6. The same day, based on the information that Hu Jinyun provided, civilian police captured the defendant Xiao Gaowen in Hunan province, Hengyang city, at the entrance to Yueping Park. The same day, based on the information that Xiao Gaowen provided, civilian police captured the defendant Xiao Yunfei in Hunan province, Hengyang city, inside a household.

The aforementioned facts were submitted by the procuratorial agency, and the following evidentiary materials have been examined and confronted, and authenticated, as evidence in the case:

1. The defendant Cai Zhuohua's statement  proves that he once confessed that beginning in early 2003, he did, in a situation of not having undertaken any of the publishing formalities, accept a third party's charge to compile and print books, and that the origin of the book samples and capital for printing the books was provided by a third party, and that in this business project he was the person in charge, Xiao Yunfei led the task of typesetting, and Xiao Gaowen contacted the printer and shipper.

2. The defendant Xiao Yunfei's statement proves that she once confessed to taking part in the work of compiling and printing books, and was first contacted for the business by Cai Zhuohua, and did typesetting based on book samples obtained from third parties or materials downloaded from the Internet provided by Cai Zhuohua in Haidian district, Malianwa Lanyuan community, building 24, unit 1, room 602. Subsequently, Xiao Gaowen took the electronic files of the typesetting to a film production company for the production of the films, and Xiao Gaowen then contacted the printer to print the books, and Xiao Gaowen then contacted the shipper for shipping based on the request of Cai Zhuohua, and that she was responsible for settling accounts with the printer and shipper. She did not know specifically how profit was being made, only that Cai Zhuohua gave her money, which she then took, and when it was time to pay the bill, she then withdrew the money, and overall was in it to make money. On or about September 11, 2004, she, Xiao Gaowen, and Hu Jinyun withdrew 80,000 yuan from the Zhaoshang Bank in Dayun village and gave it to Xiao Gaowen, and subsequently Xiao Gaowen gave it to Hu Jinyun for living expenses, and this money was money made from editing and printing books. At that time she did not inform Hu Jinyun of the origin of this money, but she should have known because at that time she and Xiao Gaowen and other people were relying on compiling and editing books to make money.

3. The defendant Xiao Gaowen's statement proves that he once confessed that, beginning in August 2001, he, together with Cai Zhuohua and Xiao Yunfei, in a situation of not having [undertaken] any of the publishing formalities, did print books (the printing process was essentially the same as that in the statement by Xiao Yunfei). The goal of Cai Zhuohua and Xiao Yunfei in compiling and printing books was to make money, and each month, he received 2,000 yuan from Cai Zhuohua. On or about September 12, 2004, he and Xiao Yunfei prepared to flee after receiving word that Cai Zhuohua had been detained, and before fleeing Xiao Yunfei said that he and Cai Zhuohua had been working together for such a long time, so she gave Hu Jinyun 80,000 yuan for living expenses, which could count as compensation.

4. The defendant Hu Jinyun's statement proves that she once confessed that at 2 o'clock in the afternoon on September 11, 2004, Xiao Yunfei withdrew 80,000 yuan from the Zhaoshang Bank in Dayun village, said simply that they had had a problem, that Cai Zhuohua had been detained for printing books, that the two of them had to leave for a while, and that she should hold onto this money for her living expenses. Although Xiao Yunfei did not say what the origin of this money was, she nevertheless knew that this money was made through their compiling and printing of books, and that they relied upon this profession for making money.

5. Deposition of witness Yu Zizhou proves that on August 29 and 30, 2004, the defendant Xiao Gaowen contacted him to print 40,000  books, and that Xiao Gaowen arranged with him to give him the printing contracts on September 2, but that in the end he was not given the printing contracts.

6. Depositions of witnesses Zhan Ruowei, Zhang Yimin, Zhang Weiqiang, and Ai Li, and the production order, bill, shipping order, and other documentary evidence from the [Seven] Rainbow Printers prove that beginning in October 2002 defendant Xiao Gaowen printed a large quantity of books at the Seven Rainbow Printers in Beijing.

7. Depositions of witnesses Li Jinbao, Li Wenping, Tian Junsheng, and Wang Shan, handwriting analyses, the operating license, and storehouse lease contract of the Beijing Rapid Delivery Shipping Service Company Limited prove that Liu Jinbao assisted Cai Zhuohua, Xiao Gaowen, and Xiao Yunfei to ship books, and assisted them in leasing a warehouse to store books in the parking lot of the Beijing Jishun Tong Storage and Transportation Company, Limited, but did not know these books were illegal publications, and on September 12, 2004, police recovered books totaling 237,776 volumes in this storeroom.

8. Depositions of witnesses Li Aili, Wang Yilin, Xiong Lili, Sun Miao, Yang Xuan, Zhang Jun, and Wang Changmei, and the operating license and lease agreement of the Maizi Culture and Art Limited Liability Company prove that the defendant Xiao Yunfei is  the person responsible for the Maizi Culture and Art Limited Liability Company, and that they once typed and typeset the book materials involved in this case.

9. Deposition of witness Sun Jinbao proves that Xiao Yunfei leases a residence at Lanyuan community, number 24-2-101.

10. The authentication conclusions from the publications and authentication report on the electronic data that the Beijing Municipal Press and Publication Administration produced prove the fact that the 51 types of books totaling 237,776 volumes involved in this case are illegal publications.

11. Search records, checklists of materials in custody, photographs, and checklist records from goods acquired illegally, prove that on September 11, 2004, public security agencies recovered 51 types of books totaling 237,776 volumes from south storage area 3A of Beijing Fifth Ring Jishun Tong Storage and Transportation Company Limited and recovered computers, optical discs, and other materials from the Maizi Culture and Art Limited Liability Company, and took them into custody.

12. Bank deposit books and the checklists of materials in custody and the account freezing notification prove that on September 12, 2004, Hu Jinyun deposited 80,000 yuan, and that this account has been frozen by public security agencies.

13.The sequence of the events leading up to this case proves that public security agencies captured Cai Zhuohua on September 11, 2004, captured Hu Jinyun on the 27th of that same month, and in accordance with the information provided by Hu Jinyun, captured Xiao Gaowen; and in accordance with the information Xiao Gaowen provided, captured Xiao Yunfei.

Cai Zhuohua's defense counsel Zhang Xingshui applied to have the witness Zhang Meihua appear in court to testify, proving the fact that she once received books delivered by Cai Zhuohua free of charge.

Through examination and confrontion of the evidence during proceedings,each of the defendants Cai Zhuohua, Xiao Gaowen, and Xiao Yunfei denies the  content of their pre-trial confessions that their compiling and printing of books was commercial in nature; Xiao Yunfei denies the content of her statement that Xiao Gaowen's salary and Xiao Yunfei's money were entirely derived from the profit of business they had previously done; Hu Jinyun denies the content of her statement that she knew the 80,000 yuan was money Cai Zhuohua earned from compiling and printing books. Defendant Cai Zhuohua's defense counsel, Zhang Xingshui, believes that of the evidence now available, there is no supporting evidence other than Cai Zhuohua's partial statement that can prove that the compiling and printing of the books were of a profit-seeking nature. Defendant Xiao Gaowen's defense counsel, Jin Xiaoguang, believes that Xiao Gaowen was merely a laborer, and was not aware of the business' origins or what publishing formalities it required. Defendant Xiao Yunfei's defense counsel, Gao Zhisheng, and defendant Hu Jinyun's defense counsel, Teng Biao, believe that flaws exist in the evidence, that the public security civilian police did not disclose their own names, and that the method of interrogation raises questions of forced confession.

The court believes that the cross-examination opinion of defense counsel Gao Zhisheng and Teng Biao regarding the illegality of the form of the pre-trial statement lacks a factual basis and evidentiary support. In addition, at the same time public security agencies detained the four defendants, the agencies delivered to them individually a "Written Notice of Procedural Rights and Obligations of Criminal Suspects," and each of the four defendants signed the public security agencies' record of interrogations, acknowledging they had "read and verified the foregoing record," and that the form and origin of the statements were legal, the content was settled, and therefore the pre-trial statements could be utilized as the basis for reaching a verdict. The other cross-examination opinions of defense counsel for the four defendants are addressed along with the defense opinions in the text below.

This court believes that defendant Cai Zhuohua along with defendants Xiao Yunfei and Xiao Gaowen illegally engaged in the business of publishing, printing, and copying publications, that this severely disrupted market order, that the circumstances are particularly severe, and that the behavior of each constitutes the crime of illegally operating a business and should be punished. Defendant Hu Jinyun provided safekeeping for the illicit funds derived by a third party from criminal activity, and her behavior constitutes the crime of concealing illegally acquired goods. The facts are clear and the evidence is certainly sufficient regarding the Beijing Municipality Haidian District People's Procuratorate's charge that defendants Cai Zhuohua, Xiao Yunfei, and Xiao Gaowen committed the crime of illegally operating a business, and its charge that defendant Hu Jinyun committed the crime of concealing illegally acquired goods, and the charged crimes are established. Regarding the defense opinion of defense counsel that the books compiled and printed by Cai Zhouhua and the others were publications for internal use, and not illegal publications, the court believes that through examination and confrontation of the evidence during proceedings, both the substance and procedure of the authentication conclusions drawn by the Beijing Municipal Press and Publication Administration that the books involved in this case are illegal publications was lawful, and their legal support is correct. In accordance with our country's relevant laws and regulations, books and other publications shall be published by book publishing houses and other publishing work units, and requests by non-publishing work units to print publications that are for internal use must be approved by the provincial level people's government press and publication office. Cai Zhuohua and the others are neither a publishing work unit, nor did they submit an application to the provincial level people's government press and publication office, and their compiling and printing of books is therefore considered unlawful in terms of publishing procedures, and the legally recognized authentication conclusions of the Beijing Municipal Press and Publication Administration that the books involved in this case are illegal publications is therefore accepted as valid. This court does not accept the opinion of defense counsel regarding the books involved in this case not being illegal publications. Regarding the defense opinion of Cai Zhuohua's and others' defense counsel that subjectivity of the crime of illegal operation of a business requires that the actors have profit seeking as their motive, and that the actions of Cai Zhuohua and the others did not disrupt market order, this court believes that the subjectivity of the crime of illegal operation of a business does not require that the actors have profit seeking as their motive; defendant Cai Zhuohua and the others had already been engaging in illegal publishing activities for several years, and witness Yu Zizhou had also requested relevant publishing formalities from Xiao Gaowen, and Cai Zhuohua and the others clearly understood the illegality and harmfulness to society of their behavior; at the same time, the quantity of illegal publications which were recovered meets the standard for "particularly severe circumstances" set forth in Article 15 of the Supreme People's Court's <a href="https://www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=1575">Interpretation Regarding Certain Questions About the Specific Laws to be Used in Adjudicating Criminal Cases of Illegal Publications</a>, and therefore the illegal compilation and printing of books by defendant Cai Zhuohua and the others shall be declared a crime and punished. The related defense opinions of defendant Cai Zhuohua and the others and their defense counsel that the actions of Cai Zhuohua and the others in illegally compiling and publishing books did not have the characteristic of illegal operation of a business is not supported by law, and this court does not accept them as valid. Regarding defendant Hu Jinyun's defense that she did not know that the 80,000 yuan involved in this case were considered illicit funds and her defense counsel's related defense opinion, this court believes that the pre-trial statements of defendants Xiao Yunfei and Xiao Gaowen regarding the 80,000 yuan being money earned through the compilation and printing of books and the pre-trial statement of defendant Hu Jinyun that she clearly knew that Xiao Gaowen and others were relying exclusively on the compilation and printing of books to make money, means this is extremely well settled, and furthermore that when Hu Jinyun received the money she already knew that Cai Zhuohua had been captured on suspicion of committing a crime by compiling and printing books, and these facts are sufficient to prove that Hu Jinyun knew the illicit nature of the 80,000 yuan involved in this case, and this court therefore does not accept as valid the foregoing defense opinion of defendant Hu Jinyun and her defense counsel. The defendant Xiao Gaowen assisted public security agencies in capturing the other criminals in this case, which is considered rendering a meritorious service, and this court reduces his sentence in accordance with the law. The circumstances of defendant Hu Jinyun's crime were minor, and furthermore she assisted public security agencies in capturing the other criminals in this case, which establishes a circumstance of rendering a meritorious service, and this court therefore shall not impose criminal punishment on her in accordance with the law. According to the specific circumstances of the four defendants' crimes, this court rules as follows with respect to defendants Cai Zhuohua and Xiao Yunfei in accordance with Article 225 paragraph 4, Article 25 clause 1, Article 53, and Article 64 of the Criminal Law of the People's Republic of China, and Article 8 of the Amended Criminal Law of the People's Republic of China, and with respect to defendant Xiao Gaowen in accordance with Article 225 paragraph 4, Article 25 clause 1, Article 68 clause 1, Article 53, and Article 64 of the Criminal Law of the People's Republic of China, and Article 8 of the Amended Criminal Law of the People's Republic of China, and with respect to defendant Hu Jinyun in accordance with Article 312, Article 68 clause 1, and Article 37 of the Criminal Law of the People's Republic of China:

1. Defendant Cai Zhuohua committed the crime of illegal operation of a business, and is sentenced to fixed term imprisonment of three years and fined 150,000 yuan. (The sentence to be calculated from the date this judgment is executed. For the detention prior to this judgment's execution, one day of the detention to be set off against one day of the sentence, which is to say from September 11, 2004 through September 10, 2007. The fine is to be paid within three months of the date following the effectiveness of this judgment.)

2. Defendant Xiao Gaowen committed the crime of illegal operation of a business, and is sentenced to fixed term imprisonment of one year and six months and fined 100,000 yuan. (The sentence to be calculated from the date this judgment is executed. For the detention prior to this judgment's execution, one day of the detention to be set off against one day of the sentence, which is to say from September 27, 2004 through March 26, 2006. The fine is to be paid within three months of the date following the effectiveness of this judgment.)

3. Defendant Xiao Yunfei committed the crime of illegal operation of a business, and is sentenced to fixed term imprisonment of two years and fined 120,000 yuan. (The sentence to be calculated from the date this judgment is executed. For the detention prior to this judgment's execution, one day of the detention to be set off against one day of the sentence, which is to say from September 27, 2004 through September 26, 2006. The fine is to be paid within three months of the date following the effectiveness of this judgment.)

4. Defendant Hu Jinyun committed the crime of concealing illegally acquired goods, and no criminal punishment is imposed.

5. The 237,776 volumes of illegal publications and the 80,000 yuan in illicit funds in custody in this case is hereby confiscated.

If [a defendant] does not accept this judgment, [they] may within 10 days of the second day after receiving this judgment bring an appeal through this court or directly to the Beijing Number 1 Intermediate People's Court. Any written appeal should include one original and four copies of the appeal brief.


北京市海淀区人民法院
刑事判决书
(2005)海法刑初字第1722号

公诉机关北京市海淀区人民检察院。

被告人蔡卓华,男,1971年4月10日出生于湖南省衡阳市,汉族,大专文化程度,无业,住北京市宣武区平原里小区5号楼12门402号。因涉嫌犯非法经营罪,于2004年9月11日被羁押,同年10月20日被逮捕。现羁押于北京市海淀区看守所。

辩护人张星水,北京市京鼎律师事务所律师。

被告人肖高文,男,1968年9月20日出生于湖南省衡阳市,汉族,高中文化程度,无业,住湖南省衡阳市雁峰区苏眼井16号2-103户。因涉嫌犯非法经营罪,于2004年9月27日被羁押,同年10月20日被逮捕。现羁押于北京市海淀区看守所。

辩护人金晓光,北京市京鼎律师事务所律师。

被告人肖云飞,女,1972年1月6日出生于湖南省衡阳市,汉族,初中文化程度,无业,湖南省衡阳市雁峰区苏眼井16号2-103户。因涉嫌犯非法经营罪,于2004年9月27日被羁押,同年10月20日被逮捕。现羁押于北京市海淀区看守所。

辩护人高智晟,北京市晟智律师事务所律师。

辩护人范亚峰,中国社会科学院法学研究所《法学研究》编辑部编辑。

被告人胡锦云,女,1962年9月23日出生于湖北省蕲春县,汉族,初中文化,无业,住湖北省蕲春县漕河镇夏槽村私隐区。因涉嫌犯窝藏赃物罪,于2004年9月27日被羁押,同年10月20日被逮捕。现押于北京市海淀区看守所。

辩护人腾彪,中国政法大学法学院教工。

北京市海淀区人民检察院以京海检经诉字(2005)第100号起诉书指控被告人蔡卓华、肖高文、肖云飞犯非法经营罪,被告人胡锦云犯窝藏赃物罪,向 本院提起公诉。本院于2005年6月3日立案,并依法组成合议庭,公开开庭审理了本案。北京市海淀区人民检察院指派代理检察员李木子出庭支持公诉,被告人 蔡卓华及其辩护人张星水,被告人肖高文及其辩护人金晓光,被告人肖云飞及其辩护人高智晟、范亚峰,被告人胡锦云及其辩护人腾彪到庭参加诉讼。现已审理终 结。

北京市海淀区人民检察院指控:

被告人蔡卓华、肖高文、肖云飞以从他人处收到的书籍样本或从互联网上下载的材料为内容,雇佣他人在本市海淀区兰园24楼1门602号进行排版并通过 印刷厂非法印刷书籍。2004年9月11日,公安机关在本市大兴区旧宫镇旧忠路24号北京五环吉顺通储运有限公司南3A仓库内,起获被告人蔡卓华、肖云 飞、肖高文非法印刷的书籍20余万册,经北京市新闻出版局鉴定为非法出版物。2004年9月11日,民警在本市海淀区青龙桥中央党校南门外路边将被告人蔡 卓华抓获。次日,在本市海淀区大运村附近,被告人胡锦云在明知肖云飞、肖高文给其的人民币8万元为非法经营的赃款的情况下,仍将此8万元收下并以自己名义 存入银行。同年9月27日,民警在湖南省衡山市中塘村6组将被告人胡锦云抓获。同日,根据胡锦云提供的线索,民警在湖南省衡阳市岳屏公园门口将被告人肖高 文抓获。同日,根据肖高文提供的线索,民警在湖南省衡阳市一住户内将肖云飞抓获。

针对上述指控,检察机关向本院提供了相应证据材料,认为被告人蔡卓华、肖高文、肖云飞的行为已构成非法经营罪,被告人胡锦云的行为已构成窝藏赃物罪,且肖高文、胡锦云有立功情节,提请本院依法对四名被告人分别定罪量刑。

被告人蔡卓华辩称自己编印书籍不是为了牟利,印书籍的资金来源于自己多年前经商的积累,没有他人给其出资,自己的行为不是经营行为。其辩护人认为蔡卓华编印书籍的行为,不是以谋取非法利润为目的,也没有严重危害社会秩序和扰乱市场秩序,其行为不构成非法经营罪。

被告人肖高文辩称自己没有买卖行为,不是非法经营。其辩护人认为肖高文受雇于蔡卓华从事印刷业务,不清楚业务需要哪些手续,其行为不构成非法经营罪。

被告人肖云飞辩称其编印书籍不是为了挣钱,给胡锦云的8万元钱也不是非法经营所得。其辩护人认为肖云飞不具备经营者的身份,所编印的书籍属于内部资 料性出版物,不需要办理出版手续,不是非法出版物;这些书籍没有进入市场,没有交易环节,不可能扰乱市场秩序,不具备“经营”的核心价值即谋取利润,因此 不属于经营行为。故其行为不构成非法经营罪。

被告人胡锦云辩称肖云飞给其的8万元是生活费,自己并不清楚是赃款。其辩护人认为没有证据证明涉案8万元是否属于赃款;肖高文、肖云飞作为胡锦云的 亲属,他们交给胡锦云8万元钱生活费是一种亲友之间的赠予行为,胡锦云也不具备判断这8万元钱属于赃款的能力,因此胡锦云的行为不构成窝藏赃物罪。

经审理查明,被告人蔡卓华伙同被告人肖高文、肖云飞,以从他人处收到的书籍样本或从互联网上下载的材料为内容,雇佣他人在北京市海淀区兰园24楼1 门 602号进行排版,并通过印刷厂非法印制书籍。三人的具体分工为,蔡卓华是负责人,由蔡卓华联系业务,并将经费交给肖云飞,由肖云飞带着小工排版并支付印 刷费用,由肖高文拿着电子文档去胶片厂制作胶片,联系印刷厂印刷和装订,并联系托运公司,最后按照蔡卓华的要求给各地送书。2004年9月11日,公安机 关在北京市大兴区旧宫镇旧忠路24号北京五环吉顺通储运有限公司南3A仓库内,起获蔡卓华、肖云飞、肖高文非法编印的书籍237 776册,经北京市新闻局出版局鉴定为非法出版物。同日,民警在本市海淀区青龙桥路边将蔡卓华抓获。次日,在本市海淀区大运村附近,肖云飞、肖高文给被告 人胡锦云人民币8万元作为生活费潜逃,胡锦云明知这8万元属于犯罪所得的赃款,仍然将此8万元收下并存入银行。同年9月27日,公安机关在湖南省衡山市中 塘村6组将胡锦云抓获。同日,公安机关根据胡锦云提供的线索,在湖南省衡阳市岳屏公园门口将肖高文抓获,后又根据肖高文提供的线索,在湖南省衡阳市一住户 内将肖云飞抓获。

上述事实,有检察机关提交,并经法庭质证、认证的下列证据材料在案为证:

1.被告人蔡卓华的供述,证明其曾供认自己从2003年初开始,在没有任何手续的情况下,受他人委托编印书籍,印刷书籍的样本和资金来源均是他人提供,这项业务其是负责人,肖云飞带小工排版,肖高文联系印刷厂和发货的事实。

2.被告人肖云飞供述,证明其曾供认编印书籍的分工,是先由蔡卓华联系业务,其根据蔡卓华提供的样本或从网上下载的样本在海淀区马连洼兰园24号楼 1单元 602室排版,后由肖高文将排完版的电子文档送到一个制片公司制作胶片,再由肖高文联系印刷厂印刷书籍,并由肖高文联系托运公司按蔡卓华的要求送货,其负 责给印刷厂和托运公司结帐。其不知道具体如何牟利,只是蔡卓华给其钱,其便收起来,需要付款,再把钱拿出来,整体来讲是挣钱的。2004年9月11日左 右,其与肖高文和胡锦云在大运村从招商银行取了8万元钱给了肖高文,后来肖高文给了胡锦云作为生活费,这钱是编印书籍挣的钱。其当时没有告知胡锦云这些钱 的来历,但她应该知道,因为当时其与肖高文等人就靠编印书籍挣钱的事实。

3.被告人肖高文的供述,证明其曾供认自己从2001年8月开始和蔡卓华、肖云飞一起在没有任何手续的情况下印刷书籍(印刷的过程与肖云飞供述基本 一致),蔡卓华和肖云飞编印书籍的目的就是为了挣钱,其每月挣蔡卓华2000元钱。2004年9月12日左右,其与肖云飞得知蔡卓华被抓后准备逃跑,跑之 前肖云飞说其和蔡卓华一起干了这么长时间,就给了胡锦云8万元钱作为生活费,也算是个补偿的事实。

4.被告人胡锦云的供述,证明其曾供认在2004年9月11日中午14时许,肖云飞从大运村招商银行里取出8万元钱,简单讲了一下他们出事了,蔡卓 华因为印书的事被抓了,他们俩要出去一段时间,将这些钱给其留作生活费。肖云飞虽然没有说这些钱的来历,但其知道这些钱是他们编印书籍挣的钱,他们就靠这 一行挣钱的事实。

5.证人[于自洲]的证言,证明被告人肖高文于2004年8月29日、30日与其联系印刷书籍4万余册,肖高文与其约定在9月2日给其有关委印手续,但最终没有给其手续的事实。

6.证人战若为、张毅敏、张伟强、艾莉的证言以及彩虹印刷厂生产通知单、对帐单、送货单等书证,证明被告人肖高文于2002年10月开始在北京七彩虹印刷厂印刷过大量书籍的事实。

7.证人刘进宝、李文萍、田俊生、王山的证言,辨认笔录、北京捷送达货运服务有限公司营业执照及库房租赁合同,证明刘进宝帮助蔡卓华、肖高文、肖云 飞运输过书籍,并帮助他们在北京吉顺通储运有限公司停车场院内租了个存放书籍的仓库,但不知道这些书籍是非法出版物,2004年9月12日警察在这间库房 内起获书籍的总数为237 776册的事实。

8.证人李艾莉、王以琳、熊莉莉、孙苗、杨宣、张俊、王长梅的证言及麦子文化艺术有限责任公司营业执照、租房协议,证明麦子文化艺术公司的负责人是被告人肖云飞,他们曾经打字、排版过涉案书籍材料的事实。

9.证人孔繁宝的证言,证明肖云飞租住在兰园小区24-2-101号的事实。

10.北京市新闻出版局出具的出版物鉴定结论、电子数据鉴定报告,证明涉案51种书刊共计237 776册均为非法出版物的事实。

11.搜查笔录、扣押物品清单、照片、清单记录、起赃经过,证明公安机关 于2004年9月11日在北京五环吉顺通有限公司南3A仓库内起获51种书刊237 776册,在北京市麦子文化艺术有限责任公司起获电脑主机、光盘等物品,并予以扣押的事实。

12.储蓄存折及扣押物品清单、冻结通知书,证明胡锦云于2004年9月12日存款人民币8万元,该款已被公安机关冻结的事实。

13.到案经过,证明公安机关于2004年9月11日将蔡卓华抓获;当月27日,将胡锦云抓获,并根据胡锦云提供的线索,将肖高文抓获;根据肖高文提供的线索,将肖云飞抓获的事实。

蔡卓华的辩护人张星水律师申请证人张梅华出庭作证,证明其曾经免费收到过蔡卓华赠送的书籍的事实。

经庭审质证,被告人蔡卓华、肖高文、肖云飞均否认其在预审期间供认过编印书籍有营利性的内容,肖云飞否认其供述过给肖高文的工资和肖云飞的钱都是以 前做生意赚来的内容,胡锦云否认其供述过知道8万元钱是蔡卓华等人编印书籍赚的钱的内容。被告人蔡卓华的辩护人张星水律师认为现有证据中除了蔡卓华的部分 供述可以证明编印书籍具有牟利性外,没有其他证据予以佐证。被告人肖高文的辩护人金晓光律师认为,肖高文只是一个打工者,不清楚业务的来源和需要哪些手 续。被告人肖云飞的辩护人高智晟律师以及被告人胡锦云的辩护人腾彪认为证据形式存在瑕疵,公安民警没有表明自己的姓名,讯问方式存在诱供的问题。

法庭认为,辩护人高智晟和腾彪关于预审供述形式不合法的质证意见,缺乏事实依据和证据佐证;且公安机关在对四名被告人拘留的同时,分别向他们送达了 《犯罪嫌疑人诉讼权利义务告知书》,四名被告人在公安机关的历次讯问笔录上,也均签名确认了“以上记录看过属实”,供述形式、来源合法,内容稳定,故四名 被告人的预审供述可以作为定案依据使用。对四名被告人及其辩护人的其他质证意见,将在下文中与辩护意见一并论证。

本院认为,被告人蔡卓华伙同被告人肖云飞、肖高文,非法从事出版物的出版、印刷、复制业务,严重扰乱市场秩序,情节特别严重,其行为均已构成非法经 营罪,应予处罚。被告人胡锦云将他人犯罪所得赃款予以窝藏,其行为已构成窝藏赃物罪。北京市海淀区人民检察院指控被告人蔡卓华、肖高文、肖云飞犯有非法经 营罪,指控被告人胡锦云犯有窝藏赃物罪的事实清楚,证据确实充分,指控罪名成立。对于辩护人关于被告人蔡卓华等人编印的书籍属于内部资料性出版物,不是非 法出版物的辩护意见,法庭认为,经庭审质证,北京市新闻出版局作出的涉案书籍属于非法出版物的鉴定结论的鉴定主体和鉴定程序均合法,法律依据亦正确。根据 我国有关法律法规,图书等出版物应该由图书出版社等出版单位出版,非出版单位委托印刷内部资料性出版物,须经省级人民政府新闻出版局批准。蔡卓华等人既不 是出版单位,也没有向省级人民政府新闻出版局提出申请,其编印书籍的行为属于出版程序性违法,北京市新闻出版局依法认定涉案书籍属于非法出版物的鉴定结 论,当予采信。本院对辩护人关于涉案书籍不是非法出版物的辩护意见不予采纳。对于被告人蔡卓华等人的辩护人关于非法经营罪的主观方面要求行为人以营利为目 的,蔡卓华等人的行为没有扰乱市场秩序的辩护意见,本院认为,非法经营罪的主观方面并不要求行为人以营利为目的;被告人蔡卓华等人从事非法出版活动已有几 年,证人于自洲也向肖高文要过相关出版手续,蔡卓华等人对于自己行为的违法性和社会危害性是明知的;同时,起获的非法出版物的数量已达到了《最高人民法院 关于审理非法出版物刑事案件具体应用法律若干问题的解释》第十五条所要求的“情节特别严重”的标准,故对被告人蔡卓华等人非法编印书籍的行为应该定罪处 罚。被告人蔡卓华等人及其辩护人关于蔡卓华等人非法编印书籍的行为不具有非法经营性质的相关辩护意见,与法无据,本院不予采纳。对于被告人胡锦云关于自己 不知道涉案 8万元属于赃款的辩解及其辩护人的相关辩护意见,本院认为,被告人肖云飞和肖高文有关涉案8万元钱是编印书籍赚的钱的预审供述和胡锦云有关其明知肖高文等 人仅靠编印书籍挣钱的预审供述,均非常稳定,且胡锦云在收钱之时也已经知道蔡卓华因为编印书籍涉嫌犯罪被抓获了,这些事实足以证明胡锦云明知涉案8万元的 赃款性质,本院对被告人胡锦云及其辩护人的上述辩护意见不予采信。被告人肖高文协助公安机关抓获同案犯,属于立功,本院依法对其从轻处罚。被告人胡锦云犯 罪情节轻微,且其协助公安机关抓获同案犯,具有立功情节,本院依法对其免予刑事处罚。根据四名被告人在犯罪中的具体情节,本院对被告人蔡卓华、肖云飞依据 《中华人民共和国刑法》第二百二十五条第(四)项、第二十五条第一款、第五十三条、第六十四条,《中华人民共和国刑法修正案》第八条;对被告人肖高文依据 《中华人民共和国刑法》第二百二十五条第(四)项、第二十五条第一款、第六十八条第一款、第五十三条、第六十四条,《中华人民共和国刑法修正案》第八条; 对被告人胡锦云依据《中华人民共和国刑法》第三百一十二条、第六十八条第一款、第三十七条之规定,判决如下:

一、被告人蔡卓华犯非法经营罪,判处有期徒刑三年,罚金人民币十五万元;
(刑期从判决执行之日起计算。判决执行以前先行羁押的,羁押一日折抵刑期一日,即自2004年9月11日起至2007年9月10日止。罚金限自本判决生效之次日起三个月内缴纳。)

二、被告人肖高文犯非法经营罪,判处有期徒刑一年六个月,罚金人民币十万元。
(刑期从判决执行之日起计算。判决执行以前先行羁押的,羁押一日折抵刑期一日,即自2004年9月27日起至2006年3月26日止。罚金限自本判决生效之次日起三个月内缴纳。)

三、被告人肖云飞犯非法经营罪,判处有期徒刑二年,罚金人民币十二万元;
(刑期从判决执行之日起计算。判决执行以前先行羁押的,羁押一日折抵刑期一日,即自2004年9月27日起至2006年9月26日止。罚金限自本判决生效之次日起三个月内缴纳。)

四、被告人胡锦云犯窝藏赃物罪,免予刑事处罚。

五、在案扣押的非法出版物书籍237 776册及赃款人民币8万元予以没收。

如不服本判决,可在接到判决书的第二日起十日内,通过本院或者直接向北京市第一中级人民法院提出上诉。书面上诉的,应当提交上诉状正本一份,副本四份。