非法经营罪中证券业务的限定与出罪

The Limitation on the Securities Business in the Crime of Illegal Business Operations and the Exoneration

司法实务中对非法经营罪中的证券业务存在宽泛解读的倾向。要厘清非法经营罪中证券业务的内涵与外延,关键在于:一是将证券业务型非法经营罪的法益内容明确化,在遵循形式判断的基础上,进一步借助实质判断来进行限定;二是在双重违法性的判断中以刑事违法为核心来展开,重视刑法对于行政违法判断的制约与限定。在考察是否属于非法经营罪所规制的证券业务时,需要把握四个要点:相应业务有无采取或变相采取证券化的方式,是否属于涉众型的证券业务,是否属于核心的证券业务,以及上下游行为是否构成其他证券犯罪。从出罪的角度而言,以下情形不能成立证券业务型非法经营罪:为未采取证券形式的P2P借贷提供信息中介服务的;为非上市公司的股权买卖提供中介服务,不能同时满足将股份拆细、以股票的形式与向不特定公众出售的要件的;从事证券投资咨询与财务顾问等非核心领域的证券业务的;上下游环节的相关主体从事的是合法证券业务的。

There is a tendency of broad construction of securities business in the crime of illegal business operations in the judicial practice of China.In order to make clear the content and scope of such securities business,the key lies in the following:the first one is to clarify the legal interest in the crime of illegal business operations involving securities business,and to limit securities business with the further help of substantive judgment on the basis of formal judgment;the second one is to conduct the judgment of double illegality by taking criminal illegality as the core and pay attention to the restriction and limitation of criminal law on the judgment of administrative illegality.When examining whether it falls within the scope of securities business covered by the crime of illegal business operations,it is necessary to grasp four key points:whether the corresponding business is in the direct or disguised mode of securitization,whether it is securities business involving a large number of individuals,whether it is core securities business,and whether the upstream and downstream acts constitute other securitiesrelated crimes.From the perspective of exoneration,the crime of illegal business operations concerning securities business can be established under the following circumstances:providing intermediary service of information for P2P lending that does not take the form of securities;providing intermediary service for equity transaction of non-listed companies,which is unable to meet the requirements of subdividing shares and selling them to the unspecific public in the form of stock at the same time;engaging in securities business in non-core areas such as securities investment consulting and financial advising;the relevant subjects in the upstream and downstream links are engaged in legal securities business.