The POS machine using the merchant whether constitutes the crime of illegal business operation?

  In May 26, 2011, a gentleman in Zhejiang opened my mobile phone, because I make a living by laid-off shop, operating high-end brand bedding, are responsible for a merchant, have a business license, tax registration certificate, certificate of organization code, no illegal operation and the scope of business. My wife works in the commercial bank, the bank in 2009 September to the community to promote POS machine, to complete the bank issued the task, she let me hold the entity shop "business license" and other procedures for two POS machine, premium 1%-20 yuan / pen, and put into use in October of the same year and already late, according to the provisions of public account.
From 2009 December to 2011 February, a total of the use of husband and wife, family, friends 14 credit cards, credit card use by circulating amount of the amount of 170000 yuan, total credit card 85 times, the cumulative amount of 3040000 yuan. The 14 cards have no overdraft is not also, if no arrears phenomenon, no bad record. In 2010 10 at the end of the cancellation of a POS machine, and the machine back to the bank. In 2011 April the cancellation and disable the second POS machines. In May 10, 2011, POS machines the public security organs shall be deactivated and occupied 11 credit cards on. My wife was questioned admitted that merchants credit card behavior, but never provide cash, not to collect fees, not to seek illegal interests, without extracting cash. The public security organs to illegal business crime, my wife and I to take compulsory measures, the two couples per capita for bail. My advice is: whether our behavior constitutes the crime of illegal business operation?
   My personal view: first, what is the crime? According to the "criminal law" the thirteenth regulation, crime means in violation of state law, to the social harm, and in accordance with the law shall be subject to criminal penalties for violations. That is to say, "crime" must also have three characteristics, namely, social harmfulness, criminal law, penalty, indispensable.
   The so-called "social harmfulness", namely the behavior of harm to the society by act or omission of the behavior, this is the most essential characteristics of a crime or the most basic. A kind of behavior caused no harm to society, or that did not disrupt the normal social order and stability, it is not necessary to prevent or punish by law. Do not harm the social behavior, can not be considered a crime. The so-called "criminal law", refers to harm the social behavior, only need to use the penalty sanctions, penal code provides for the crime. The so-called "penalty", refers to the provisions of the criminal law should be punished. Illegal behavior, does not constitute a crime, only in accordance with the criminal law shall be subject to criminal punishment behavior is crime, this is the essential feature of crime. "Criminal law" article thirteenth also stipulates: circumstances are obviously minor and the harm is not great, not deemed a crime. That is the behavior although violated the law, but the plot remarkable slight, its social harm has not yet reached should be punished, the law is not a crime. The provisions of the criminal law on the crime concept is more comprehensive, reasonable. The provisions of the criminal law on the crime concept, is the basic standard to distinguish between crime and non crime.
The act of using POS machine, after the bank approved by the authority, not illegal use. In the occupied period, no overdraft is not also, late return behavior, the 14 credit cards with their own relatives and card were no debts, no bad record. The behavior of people in 10 at the end of 2010, the initiative to the banks to write off a POS machine, and the machine back to the bank. In 2011 April, the initiative to the banks to write off and disable the second POS machine. It can be proved that, the behavior, no harm to society, since there is no harm to the society, can not constitute a crime, shall be investigated for criminal responsibility is not.
Second, what is the crime of illegal business operation? According to the "criminal law" the provisions of article 225th, first of all, the object of the crime of illegal business operation is a violation of national restrictions on the sale of goods and the business license of the market management system. Secondly, in the subjective aspect of this crime by intention, and have to seek illegal profit, which is the two major content should have in the subjective aspect of crime. If the behavior of people not to seek illegal profits for the purpose, but because do not understand the law, regulations, business license, shall not take the offenses. Again, without approval of the administrative department for Industry and commerce to be business, no business license, tax registration certificate and other legal procedures, to belong to illegal business. Then again, the crime of circumstance crime, illegal behavior must be "serious" can constitute the crime, if only the illegal acts, the plot is not serious do not constitute a crime. The crime of illegal business transactions and divided by income as a starting point, but also with the behavior of people is an illegal business behavior, whether to give the country caused heavy losses or cause other serious consequences, such as whether the repeated illegal acts, the administrative punishment is still not repent; use the authority to engage in illegal business activities, very bad influence; monopoly supply, drive up prices, seriously disrupting the market, a serious impact on the national economy and social stability; illegal activities have caused serious consequences. Finally, the crime of criminal law and administrative law is consistent, that is to say, illegal operators must violate the relevant business rules, no administrative illegality is not the criminal illegality, it should not easily make a crime.
   The behavior of people, one is not violated the national restrictions on the sale of goods and the business license of the market management system; two is not the subjective motive of illegal possession, not to seek illegal profit, without extracting a penny of cash; the three is to use the POS machine is through a bank approved by the authority, not illegal use; four is does not have the element "serious", more do not have repeated illegal acts, the administrative punishment is still not repent; using their authority to engage in illegal business activities, very bad influence; monopoly supply, drive up prices, seriously disrupting the market, a serious impact on the national economy and social stability; five not in violation of the relevant business rules, no administrative illegality, there is therefore no criminal illegality; six is that they had cancelled, refunded and stop using POS machine, belonging to self correct behavior, this is an important plot.
Third, the Supreme People's court, the Supreme People's Procuratorate "about the hindrance credit card management, criminal case concrete application law interpretation of several issues" the seventh stipulation: in violation of state regulations, the use of point of sale terminal equipment (POS) and other methods, direct cash payments to credit card holders to fictitious transaction, price, or cash return etc. if the circumstances are serious, shall, according to the provisions of article 225th of the criminal law on the crime of illegal business operation, conviction and punishment. The implementation of the acts mentioned in the preceding paragraph, in the amount of 1000000 yuan, or cause the capital of 200000 financial institutions yuan overdue unpaid, or make for the financial institution to economic loss of 100000 yuan of above, shall be determined as specified in article 225th of the criminal law "serious"; in the amount of 5000000 yuan, or cause the capital of 1000000 financial institutions yuan overdue unpaid, or make for the financial institution to economic loss of 500000 yuan of above, should be identified as the criminal law 225th stipulation "if the circumstances are especially serious".
According to the provisions of the above two, the crime of illegal business operation, must have the following elements: the first is to use the POS machine in violation of state regulations; second is a fictitious transaction, or fictitious price, or cash returns to the Credit Card Cardholder direct cash payment; third is a must if the circumstances are serious, the so-called "serious", refers to the Credit Card Cardholder direct cash payment in the amount of 1000000 yuan, or cause the capital of 200000 financial institutions yuan overdue unpaid, or make for the financial institution to economic loss of 100000 yuan.
Control the behavior of human behavior, one is using the POS machine, the bank approved, not privately installed to use behavior; two, not to the cardholder "payment" what, no "direct" pay, no pay "cash"; three, does not have the card holders to credit directly cash payment amount of 1000000 yuan of above elements; four, do not have the money of 200000 financial institutions yuan fails also elements; five is caused by financial institutions, do not have the economic loss of 100000 yuan of above elements; six, "line" and "accumulation amount" is not a legal term, and two provisions "the implementation of the acts mentioned in the preceding paragraph is to be wide of the mark", "". Therefore, the author thinks, the behavior of people do not have the two provisions of the crime of illegal business elements, should not be to provisions of punishment.
Fourth, in the online search, from the use of point of sale terminal equipment (POS) methods constitute the crime of illegal business operation, its remarkable characteristics, is the "cash" and a "fee", almost did not seek illegal interests, which destroyed the market economy order, so the crime of illegal business operations. While the two act the people this is the lack of two remarkable characteristics. This is further evidence, they do not constitute the crime of illegal business operation.
            (the author of legal advisory mobile phone 18321864965)