Core Viewpoint - The evolution of the crime of illegal business operations reflects the complexity of economic and social development, transforming from a specific economic regulatory tool into a "catch-all" crime in market economic activities, posing unprecedented challenges for criminal defense [1]. Summary by Sections Legislative Evolution and Normative Structure - The regulatory framework of illegal business operations has evolved from specific to abstract, initially defined in 1997 with three specific scenarios, including unauthorized operation of exclusive goods and serious disruption of market order. This design reflected a clear delineation of economic regulation at that time [2]. - The scope of application has expanded through amendments and judicial interpretations, now encompassing over ten specific types, including illegal payment settlement and telecommunications operations, alongside a catch-all clause for "other serious disruptions to market order" [2]. - The crime's constitutive elements include three key factors: violation of national regulations, engagement in illegal business activities, and severity of circumstances, providing multiple layers of operational space for defense [2]. Typological Analysis: Main Behavior Patterns and Defense Points 1. **Unauthorized Operation of Specific Business Types** - Cases involve sectors like finance and telecommunications, with defense focusing on the scope and validity of administrative licenses. For instance, in illegal payment settlement cases, it is crucial to distinguish between mere fund transfers and professional payment services [3]. - In the publishing sector, the defense should differentiate between content legality and procedural legality, arguing that minor procedural flaws do not warrant criminal penalties [3]. 2. **Use of Prohibited Business Methods** - This category includes behaviors like cashing out via POS machines and pyramid schemes. The defense should accurately determine the nature of the actions and assess the social harm of the methods used [4]. - In credit card cash-out cases, distinguishing between legitimate promotions and illegal cash-outs is essential, while in pyramid scheme cases, the focus should be on the legitimacy of the profit sources [4]. 3. **Application of Other Catch-All Clauses** - For cases invoking the catch-all clause, a cautious approach is necessary, emphasizing the need to assess whether the actions reach a level of social harm comparable to explicitly defined types [5]. Multi-layered Defense Strategies 1. **Legality Level Defense** - Defense should scrutinize the "national regulations" cited in accusations, as only laws and administrative regulations can serve as bases for criminal liability, excluding departmental or local regulations [6]. - It is vital to check if the national regulations explicitly set criminal liability; if only administrative responsibility is mentioned, the principle of "no crime without a clear law" should be invoked [6]. 2. **Business Behavior Level Defense** - The core issue is distinguishing between "unlicensed operation" and "exceeding operational scope," requiring a review of business licenses and administrative permits [7]. - For technical service cases, the defense should argue the legitimate uses of the technology provided, demonstrating that the individual did not specifically support illegal activities [7]. 3. **Subjective Intent Level Defense** - The recognition of subjective intent is crucial, with defense focusing on the individual's professional background and understanding of the legality of their actions [8]. - In cases of joint crime, it is important to differentiate the subjective awareness of each participant, particularly those providing ancillary services [8]. 4. **Circumstantial Recognition Level Defense** - The determination of severity directly impacts the distinction between crime and non-crime, necessitating a detailed examination of quantitative indicators like business revenue and illegal gains [9]. - The defense should also evaluate the social harm of the actions, especially in emerging industries, to argue that exploratory mistakes in business development should not be criminalized [9]. Evidence Examination: Key Strategies - Evidence examination is a critical defense stage, focusing on the completeness of financial materials and the appropriateness of auditing methods [10]. - For electronic evidence, the legality of its extraction and the integrity of the data chain must be scrutinized, as it often plays a key role in determining business models and amounts [10]. - The analysis of testimonial evidence should identify contradictions and doubts to construct a favorable narrative for the defendant [10]. Policy Understanding: Application of Criminal Policy in Defense - Understanding the impact of criminal policy on the application of illegal business operations is essential, particularly in cases involving private enterprises [11]. - The defense should leverage policies encouraging innovation to argue for caution in criminal intervention, presenting industry analysis and expert opinions to highlight the unique nature of the business [11]. - Attention should be paid to established judicial practices and precedents that can support the defense's arguments, especially in contentious areas like the application of catch-all clauses [11]. Conclusion: Balancing Order and Innovation - The defense of illegal business operations fundamentally seeks to balance the maintenance of economic order with the development of market innovation, requiring a deep understanding of social and economic trends [17]. - Successful defense strategies must adhere to the principle of legality while limiting the expansion of catch-all clauses, ensuring that criminal prosecutions do not become overly broad [17]. - Through a typological analysis and refined defense strategies, each case can find the most suitable defense path, achieving a balance between individual justice and legal integrity [17].