Whether the unlicensed and unlicensed operation of refined oil products can be investigated and deal

Personally, I believe that for those who engage in finished product business without obtaining a business license, the specific controversy lies in the second paragraph of Article 14 of the Measures for the Investigation and Punishment of Unlicensed Operations: "If the punishment for unlicensed business operation is otherwise provided for by laws and regulations, such provisions shall prevail." In the actual use process, it will be confused with the "Measures for the Administration of the Refined Oil Market" and the "Regulations on the Safety Management of Hazardous Chemicals".

In my opinion, the industrial and commercial organs should investigate and deal with it in accordance with the "Measures for the Investigation and Punishment of Unlicensed Operations".

Reason 1: Decree No. 23 of 2006 of the Ministry of Commerce "Measures for the Administration of the Refined Oil Market" is a special regulation for the refined oil market in the current laws and regulations. The ministerial decree stipulates that the refined oil business qualifications, regardless of wholesale, retail and warehousing, shall be reviewed and issued by the Ministry of Commerce and issued the "Refined Oil Business Approval Certificate".

The controversy lies in Article 38 of the ministerial decree: "Refined oil business enterprises shall operate in accordance with the law, and the following acts are prohibited: (1) operating without a license, inconsistent with the license or beyond the scope; There is only a ban, and there is no specific penalty.

Moreover, the content of the certificate is not specified in this article. According to the first paragraph of Article 40 of the ministerial order, the commerce department revokes the decision of the refined oil business license, so the commerce department should punish the business behavior without the "refined oil business approval certificate", and has no right to bind the business license.

Reason 2: For the "Regulations on the Safety Management of Hazardous Chemicals" No. 591 of Order No. 591, the individual did not find out whether the list of hazardous chemicals contained gasoline and diesel with various labels, and the identification of hazardous chemicals was the basis for whether it met the constraints of the Order No. 591. The third paragraph of Article 77 of the order states that "anyone who violates the provisions of these Regulations and engages in the operation of hazardous chemicals without obtaining a hazardous chemicals business license shall be ordered by the production safety supervision and management department to stop business activities, confiscate the hazardous chemicals and illegal gains from illegal operations, and impose a fine of not less than 100,000 yuan but not more than 200,000 yuan; where a crime is constituted, criminal responsibility is pursued in accordance with law. It can also be seen that the first order is actually bound by various types of business licenses, and no binding adjustments have been made to the business license.

Therefore, whether the refined oil is a hazardous chemical or not, whether he needs to apply for the "Refined Oil Business Approval Certificate" or the "Hazardous Chemicals Business License", he is engaged in business behavior, and the legally effective direct binding certificate of business behavior is the business license. As for the type of unlicensed business that has not obtained a business license and engages in business without authorization, the first paragraph of Article 4 of the Measures for the Investigation and Punishment of Unlicensed Business Operation has detailed provisions, and Articles 5 and 14 of the Measures stipulate that the industrial and commercial authorities shall investigate and ban the unlicensed business activities with jurisdiction within their jurisdiction.

This can definitely be investigated and punished, and you must pay a fine according to the income obtained from your unlicensed operation, as for how to fine, how much to fine depends on the mood of the industrial and commercial bureau and your way.

The industrial and commercial organs cannot investigate and deal with it. According to the provisions of Article 14, Paragraph 2 of the Measures for the Investigation and Punishment of Unlicensed Operations, industrial and commercial organs need to transfer to the new "Regulations on Hazardous Chemicals" at present, and there is no basis for industrial and commercial organs to investigate and deal with them. The act is investigated and dealt with by the Work Safety Supervision Bureau.

Whether the county-level commerce department can investigate and deal with the unlicensed and unlicensed operation of refined oil products in accordance with the measures for the investigation and punishment of unlicensed operations.

Legal analysis: market supervision department or industrial and commercial administrative department. Where any unit or individual engages in unlicensed or unlicensed operations, it shall be recorded in the credit record by the Investigation and Punishment Department, and shall be publicized in accordance with the provisions of relevant laws and regulations.

Those who engage in unlicensed business shall be punished by the administrative department for industry and commerce in accordance with the provisions of relevant laws and administrative regulations. If laws and administrative regulations do not clearly stipulate the punishment for operating without a license, the administrative department for industry and commerce shall order it to stop the illegal act, confiscate the illegal gains, and impose a fine of not more than 10,000 yuan. Knowing that it is an unlicensed business operation and providing a business premises for a business operator, or providing conditions such as transportation, custody, or warehousing, the administrative department for industry and commerce shall order it to stop the illegal act, confiscate the illegal gains, and may impose a fine of not more than 5,000 yuan.

Legal basis: Measures for the Investigation and Punishment of Unlicensed Operations

Article 14: Where a business operator is provided with a business premises, or conditions such as transportation, custody, or warehousing, which are clearly known to be operating without a license, the administrative department for industry and commerce shall order it to stop the illegal acts, confiscate the unlawful gains, and may impose a fine of up to 5,000 yuan.

Article 13 Those who engage in unlicensed business shall be punished by the administrative department for industry and commerce in accordance with the provisions of relevant laws and administrative regulations. If the laws and administrative regulations do not specify the punishment for operating without a license, the administrative department for industry and commerce shall order it to stop the illegal acts, confiscate the illegal gains, and impose a fine of less than 10,000 yuan.

Operating refined oil products without a license may constitute the crime of illegal business operation.

If the operation of refined oil products needs to obtain the corresponding administrative license, and the operation of refined oil products without obtaining a license will constitute the crime of illegal operation under the circumstances of serious open rent.

The constitutive elements of the crime of illegal business operation are as follows:

1. The object of the violation of the crime of illegal business operation should be the market order, and in order to ensure the restriction of the market for the sale and purchase of goods and the import and export of goods, the state implements the business licensing system for the above-mentioned items;

2. Objectively, it is manifested as operating franchises, monopoly goods or other restricted items without permission, buying and selling import and export licenses, import and export certificates of origin, and other business licenses or approval documents stipulated by laws and administrative regulations, as well as engaging in other illegal business activities, disrupting market order, and the circumstances are serious;

3. The subject of this crime is a general subject, that is, all natural persons of Liang Huaiyun who have reached the age of criminal responsibility and have the capacity for criminal responsibility;

4. The subjective aspect is composed of intent and has the purpose of seeking illegal profits.

If the perpetrator does not have the purpose of seeking illegal profits, but does not understand laws and regulations, and buys or sells business licenses, it shall not be punished as this crime, and the competent department shall pursue administrative responsibility for him.

Legal basis

Criminal Law of the People's Republic of China

Article 225:Where state provisions are violated by committing any of the following illegal business activities, disrupting market order, and the circumstances are serious, a sentence of up to five years imprisonment or short-term detention is to be given, and/or a fine of between 1 and 5 times the amount of unlawful gains is to be given; where the circumstances are especially serious, a sentence of five or more years imprisonment is to be given, and a concurrent fine of between 1 and 5 times the amount of unlawful gains or confiscation of property is to be given

1) Engaging in monopoly or monopoly goods or other restricted items as provided for by laws and administrative regulations without permission;

2) Buying and selling import and export licenses, import and export certificates of origin, and other business licenses or approval documents provided for by laws and administrative regulations;

3) Illegally operating **, **, or insurance business without the approval of the relevant competent state departments, or illegally engaging in fund payment and settlement business;

4) Other illegal business activities that seriously disrupt market order.

Legal analysis: If the refined oil product needs to obtain the corresponding administrative license, and the refined oil is operated without obtaining a license, the circumstances will constitute the crime of illegal operation.

Legal basis: Criminal Law of the People's Republic of China Article 225: Where state provisions are violated by committing any of the following illegal business activities, disrupting market order, and the circumstances are serious, a sentence of up to five years imprisonment or short-term detention is to be given, and/or a fine of between 1 and 5 times the amount of unlawful gains is to be given; where the circumstances are especially serious, a sentence of five or more years imprisonment is to be given, and a concurrent fine of between 1 and 5 times the amount of unlawful gains or confiscation of property is to be given

1) Engaging in monopoly or monopoly goods or other restricted items as provided for by laws and administrative regulations without permission;

2) Buying and selling import and export licenses, import and export certificates of origin, and other business licenses or approval documents provided for by the laws and administrative regulations of the bank;

3) Without the approval of the relevant competent state departments, illegally operating **, ** or insurance business;

4) Other illegal business activities that seriously disrupt market order.

It is controversial whether the unlicensed operation of refined oil products necessarily constitutes the crime of illegal operation. The operation of refined oil without a license is generally operated without the qualification of "Hazardous Chemicals Business License" and "Approval Certificate for Retail Operation of Refined Oil". There is no uniform standard for the verdicts of courts in various parts of the country, but most local courts have convicted those guilty of illegal business operations, and only a few local courts have found such acts not guilty.

Operating refined oil products without a license constitutes the crime of illegal business operation. The crime of illegal business operation refers to the unauthorized operation of monopoly or monopoly goods or other restricted items, the purchase and sale of import and export licenses, import and export certificates of origin, and other business licenses or approval documents provided for by laws and administrative regulations, as well as engaging in other illegal business activities, disrupting market order, and the circumstances are serious. The object of the crime of illegal business operation should be the market order, and in order to ensure the restriction of the market for the sale and purchase of goods and the import and export of goods, the State implements a business licensing system for the above-mentioned goods.

Among them, the import and export licensing system is an important part of the business licensing system, and the purchase and sale of import and export licenses and import and export certificates of origin not only infringe on the market order, but also infringe on the foreign management system. The subject of this crime is a general subject, that is, all natural persons who have reached the age of criminal responsibility and have the capacity for criminal responsibility. Units established in accordance with law and with the capacity for responsibility may also be the subject of this crime.

Criminal Law of the People's Republic of China》 Article 225: Where state provisions are violated by any of the following illegal business activities, disrupting market order, and the circumstances are serious, a sentence of up to five years imprisonment or short-term detention is to be given, and/or a fine of between 1 and 5 times the amount of unlawful gains; where the circumstances are especially serious, a sentence of five or more years imprisonment is to be given, and a concurrent fine of between 1 and 5 times the amount of unlawful gains or confiscation of property is to be given: (1) Engaging in the operation of monopoly or monopoly items or other restricted items as provided for by laws or administrative regulations without permission; (2) Buying and selling import and export licenses, import and export certificates of origin, and other business licenses or approval documents provided for by laws and administrative regulations; 3) Illegally operating **, **, or insurance business without the approval of the relevant competent state departments, or illegally engaging in fund payment and settlement business; 4) Other illegal business activities that seriously disrupt market order.