| Due to the pay-as-you-go characteristics of shopping cards,it has stable value and good circulation.Therefore,there are no shortage of merchants or individuals who resell the shopping cards for profit in the market.Due to the lack of relevant regulations on the reselling of shopping cards in our country,the business behavior of this industry lacks relevant reference standards.Among them,the qualitative controversy over purchasing shopping cards fraudulently obtained by others and selling them for profit is the epitome of this problem.In response to this qualitative problem,there are theories of concealing the crime of concealing the crime,the theory of illegal business and the theory of innocence in the theoretical and practical circles.There are three reasons for these disputes:First,the content of the“knowledge”of the proceeds of crime in the crime of concealing the crime is controversial and the standard of proof;second,the issue of how to interpret the clarification clause in the crime of illegal business operation cannot be explained.Clarify.The key to this issue is to accurately define whether the legal interest protected by the crime of illegal business operations is the market order or the market access order;third,the issue of how to judge the social harm is controversial.Covering up the crime of concealing the crime is a deliberate crime,so the determination of "knowingly" should follow the determination standard of intent in Article 14 of the Criminal Law,and should not include the "should know" part.However,under the premise of meeting the criminal proof standard,"knowingly" can be proved by presumption.The criminal law is modest and restraining.In order to avoid the phenomenon that the crime of illegal business is hit too much,the market access order theory should be used to define the legal benefits of the protection of the crime of illegal business.According to the principle of system interpretation,the all-round clauses of the crime of illegal business operations should be limited to the regulation of acts that disrupt the order of market access.The judgment of social harmfulness should adhere to the principle of legality and objectivity,and must not be separated from the social harmfulness of the behavior identified in the criminal law,and subjective malignancy cannot be used as a factor of social harmfulness.Therefore,for the act of purchasing shopping cards fraudulently obtained by others and selling them for profit,if the judiciary cannot prove through objective facts or presume that the perpetrator " knows" that the shopping card is the proceeds of crime,it does not constitute the crime of concealing the proceeds of crime.Secondly,the act did not damage the order of market access,so it should not be included in the all-inclusive clause of the crime of illegal business operations.Finally,although the behavior is hugely profitable,it is not beneficial and intrusive,so it is not socially harmful.Therefore,the act of buying shopping cards fraudulently obtained by others and selling them for profit should be deemed innocent. |
