(This article is reprinted and published by Shanghai Legal News | Original author: Lawyer Shao Shiwei)

Not long ago, an article written by Lawyer Shao about a real case of illegal business operation that he had previously handled was reprinted in the Shanghai Legal Daily on June 23, 2025.

The article conducted an in-depth analysis of the controversial points of "guilt and innocence" in the case, and combined with the objective circumstances of the case, put forward powerful defense points to the case-handling unit, ultimately achieving the ideal result of not guilty defense.

The original text reprinted in the Shanghai Legal Daily is now reorganized and published on this official account for readers' reference.

"He is a father. He fell into financial difficulties due to company layoffs. In order to support his family, he decided to sell his long-collected vinyl records. However, one day, the police suddenly came to his house and told him that his behavior was suspected of being a crime and he might face more than five years in prison.

Just imagine, if this person was you or your family, could you accept this outcome?

In real life, many people may accidentally fall into legal risks due to lack of legal knowledge. What I want to share with you today is a real case of illegal business operation crime that Lawyer Shao once handled and the case was withdrawn without guilt. "

1. "Lawyer, will I go to jail?"

Late one night, I suddenly received a call from a middle-aged man.

"Hello, Lawyer Shao. My friend XX gave me your contact information. I was taken to the police station for questioning today and was just released on bail. I would like to ask if my case is serious? Will I go to jail?"

I still remember that phone call. His voice sounded very restrained, panicked and helpless. While trying to sort out his thoughts, he was also trying to communicate with me about the case itself. I immediately put down the work at hand and said, "Okay, tell me about the details of the case first."

It turned out that he was a senior executive of a foreign company, in his forties, and had been collecting audio and video products for many years. About half a year ago, due to the company's layoffs and financial difficulties, he took a part-time job as a Didi driver to make a living, and sold some of his audio and video collections on second-hand platforms to supplement his family income. Due to the good response, he bought a batch of records from abroad in the past two months and sold them online on an e-commerce platform.

However, in the early morning of the day he contacted me, before he even went out to drive his sports car, the police suddenly showed up at his home, handcuffed him, and took him to a police station in Shanghai for a ten-hour interrogation. He was not released until late at night.

Only then did he learn from the police officer in charge that the cause of the incident was that a batch of audio-visual products he had recently purchased from abroad were discovered by customs upon entry. Subsequently, a special task force composed of public security, customs, market supervision, press and publication, culture and other departments opened an investigation into him for the crime of illegal business operation.

He was very confused. He was just selling some collectibles online, so how could he be suspected of a crime?

What he feared more was: If it really constituted the crime of illegal business operation, would it be a serious crime? Would he be sentenced? How many years would he spend in prison?

2. Why is it defined as “illegal operation”?

According to the client's description, the audiovisual products he collected and sold were mostly classics, mainly light music, and did not even contain lyrics. He believed that they had nothing to do with any prohibited content. In his opinion, he was just doing something that was very common on public platforms - putting his personal collection on e-commerce platforms for trading.

He had seen a large number of sales records of similar products on multiple mainstream e-commerce platforms, and even purchased such products himself as a consumer. Therefore, he could not understand why so many people were doing "normal transactions", but when it came to him, he became a suspect of suspected illegal business operations?

In fact, there is a little-known compliance requirement behind this - a publication import license.

According to current laws and regulations, anyone who sells publications (including audio-visual products) purchased from overseas in China, whether online or offline, must obtain a business license in accordance with the law.

However, the threshold for obtaining this license is extremely high. During my time as an agent for the case, I visited the relevant regulatory authorities and received a clear answer: Currently, only four or five large state-owned publishing units in Shanghai have this license, and individuals and general businesses cannot apply for it. This also means that this qualification has a high entry barrier and de facto monopoly in reality.

The more realistic problem is that many ordinary businesses are not even aware of this compliance threshold. If they sell without obtaining a business license, even if they have no subjective malice and are only trying to supplement their household income, once the sales amount reaches the criminal filing standard, they may also be investigated for illegal business operations.

In other words, the key to determining whether a crime is committed is not whether you "subjectively want to break the law", but whether you objectively operate without a license and meet the threshold for conviction. This is the "legal bottom line" emphasized by the criminal law.

It is worth noting that a large number of similar products can still be seen on sale on major platforms, but the fact that they have “not yet been investigated and dealt with” does not mean that the behavior itself is legal.

For the person involved in this case, he just "happened to be the one chosen for investigation."

(As of now, a large number of similar products can still be found on sale on multiple e-commerce platforms)

3. Since sales far exceed the standard for filing a case, is it difficult to avoid the crime of illegal business operation?

According to the Criminal Law and relevant judicial interpretations, if an individual sells publications without a license, once the sales reach 150,000 yuan, or the illegal income exceeds 50,000 yuan, it constitutes "particularly serious circumstances" of the crime of illegal business operation and should usually be sentenced to more than five years in prison.

At the time of the incident, the person involved had not yet accurately calculated the sales amount, but he told me clearly: the sales volume in half a year had far exceeded 150,000 yuan. Although the profit was not high, only about 50,000 yuan, it was enough to reach the threshold of criminal liability.

This was an unacceptable blow to him.

He is a middle-aged man with many years of working experience in foreign companies. He studied abroad, has a happy family and a stable job. In his opinion, he is just a "selling point collection". How could he become a "suspected criminal" overnight? What's more, he is facing the risk of more than five years of actual imprisonment.

Although he had been released on bail and his life seemed to be back to normal, he was awakened by nightmares every night and looked extremely haggard. When I talked to him and met him, I could almost feel his intense uneasiness and constant anxiety.

This sentiment was also passed on to me.

On the one hand, if any ordinary person were suddenly involved in such a situation where he was "severely hit" by the criminal law, it would be difficult to accept it, because this is really not a typical type of crime of "knowingly breaking the law" or "taking risks".

Most people are familiar with the legal restrictions on categories such as tobacco, alcohol, controlled drugs, firearms and ammunition, and wild animals. However, many entrepreneurs and freelancers doing cross-border business have no idea about the licensing threshold for publishing sales.

On the other hand, I also searched for many similar cases and gradually realized that once the unlicensed sales amount reaches the filing amount, there is almost no dispute in judicial practice whether it constitutes a crime. This made me realize that the space for defense may be extremely limited, and also put me under considerable professional pressure. For example, the following case:

[Case No.: (2018) Min 0322 Criminal First Instance No. 605]

The defendant Chen bought audio-visual products from abroad without obtaining a publication import and export license, and sold 2,720 boxes through Taobao store "Haha Records", with a turnover of more than 300,000 yuan. At the time of the incident, another 1,368 boxes of unsold audio-visual products were seized, all of which were identified as illegal publications.

The final court ruling was: it constituted the crime of illegal business operation, sentenced to two years in prison, suspended for three years, and fined RMB 30,000.

The reason why this case was handled leniently was that the defendant had typical mitigating circumstances such as surrendering himself, admitting guilt and accepting punishment, and voluntarily returning the money. Based on this, the court "downgraded" the case and finally sentenced him to probation.

But my client’s situation was even more serious:

• Sales have exceeded $700,000, more than double that in this case;

• The police went to arrest people at their homes, and there was no voluntary surrender, and there was no voluntary surrender;

• Although he cooperated with the interrogation, his initial statement was hastily recorded and, as it was his first criminal investigation, he was under great psychological pressure, so some of the content may have been misleading;

But the actual situation is that his "illegal profits" were only over 50,000 yuan, which is not a high profit at all.

He is not a professional "scalper", he is just trying to make a living.

Does one have to spend more than five years in jail just because of a single information gap?

This question is not just something he keeps asking.

As a defense lawyer, I am constantly questioning myself.

4. Defend innocence or plead guilty? A difficult choice of defense path

As a lawyer, especially when handling criminal cases, it is inevitable that you will be affected by the emotions of the client and his family. But learning to quickly detach from emotions and stay rational is also an essential professional quality for lawyers. If a lawyer falls into an emotional whirlpool with the client or his family and loses the ability to think rationally, then who will provide legal advice to the client in the face of each investigation and interrogation by the case handlers? Especially in certain scenarios, in order to fight for the legal rights of the client, confronting the judicial authorities is also a necessary litigation strategy. In these cases, lawyers need to maintain a rational thinking brain in order to carefully weigh the pros and cons for the client and make the most favorable decision.

So, after a few days of suffering, I pulled myself out of this emotion, started thinking about the case itself, and listed the key issues of this case:

• In terms of the current turnover, is the amount currently calculated by the judicial authorities reasonable ? What is the specific calculation method?

• If the amount determined by the judicial authorities is higher than the amount we have calculated, how can we convince them to adopt our calculation method?

• The operating revenue includes the postage, packaging and other costs paid by the party for the buyer. We claim that this part can be deducted. Can this be supported?

• MoYu is a second-hand platform. If someone puts their own records on a second-hand platform for resale, we claim that the portion of the person’s own collection sold should not be included in the total amount of illegal business. Can we support this?

• The party concerned used part of the profit to purchase records. Although he believes that this is in his favor and wants to claim that his actual profit was less, will this be deemed by the judicial authorities as expanded reproduction , which will be disadvantageous to us?

• On a certain treasure platform, the party concerned operates under the name of a company. Can he plead guilty to corporate crime ?

• This case happened because the records purchased by the client overseas were checked at the customs. In addition to the current illegal business crime, does it involve the crime of smuggling ordinary goods and articles ? If so, should one of the serious crimes be punished or multiple crimes be punished together?

(Similar case news source: Beijing Customs official website)

…

The above defense points are based on the assumption that the judicial authorities have found the parties guilty. However, in this case, because the sales of the parties are far higher than the filing standard of more than 5 years, even if the corresponding deductions are made, it is still very difficult to reduce the amount to less than 5 years. So I must consider :

If the final sentence is more than five years, and the person concerned has not surrendered himself to be sentenced to a reduced sentence, can he now strive to gain meritorious service by providing clues to crimes?

In fact, after the case happened, the client was confused: Why were so many online stores selling vinyl records fine, but only he was investigated? So I took the client to the police station (not the police station in this case) to report the situation and communicate with the police. However, to my surprise, the police replied: " This type of case is too rare. We have never handled such cases and have no relevant experience, so we will not accept the clues you provided."

In practice, it is very difficult to strive for meritorious service. Even though I had expected it, I was still disappointed to see that this was almost the only hope to get a downgrade for the client . What should I do? Only by downgrading can I further strive for a sentence of less than 3 years or even probation for the client.

But I was not willing to give up. Although my hope of making meritorious service was shattered, this effort was not meaningless, because through communication with the police , I learned that such illegal and criminal behavior was rare even for the police at the grassroots level who handled a large number of cases every year, and they would not take the initiative to handle such cases. Therefore, we can draw a conclusion that my client's business behavior did not fall within the scope of the law enforcement department's strict crackdown.

So, based on the above understanding, after my hope of making meritorious service was dashed, I had a bold idea: I wanted to take a chance and ask myself whether I could claim that the person’s behavior did not constitute a crime?

However, if one advocates a not guilty defense, there is still a big obstacle: according to the client's statement, when he first made the record, because it was his first time experiencing such a scene, he was terrified and frightened, and under the pressure of the 10-hour interrogation, he had already made a statement in the interrogation record that he was willing to plead guilty and accept punishment .

When the party pleads guilty and accepts punishment, and there is no dispute about the legal characterization of his behavior as a crime, the strategy of defending innocence is obviously a risky move. The consequences of such an undue move must be borne by the party himself. I do not have the right to make this decision on my own.

So, when I had this idea, I quickly called the client and told him about my idea. He was very excited when he heard this idea, so we quickly made an appointment to meet at the law firm. I still remember that day, from 1:30 pm to 8 pm, more than 6 hours, I fully communicated with the client about the current objective situation of the case, the pros and cons of the current situation, my defense strategy, the options available and the corresponding defense strategy .

At the end of this conversation, he looked at me with a look of worry, helplessness and expectation, and asked softly, "Lawyer Shao, what are the worst and best outcomes of my case?"

Although it was difficult to speak, I had to make the client clearly aware of the current situation: "According to the law and existing precedents, if found guilty, the sentence may be six to seven years in prison. But as for the best outcome, combined with the analysis of the circumstances of this case, I think there is a chance to fight for innocence. Even if you have made a guilty confession before, the lawyer has the right to independently exercise the right to defense , that is, if the client pleads guilty, according to the law, the lawyer can still make an innocent defense."

Hearing this, he fell into deep thought. After a moment, he slowly stood up and said, "I'm going to go outside to smoke a cigarette." I nodded slightly and responded, "Okay, I'll wait for you to come back." He turned and walked towards the door, his steps were a little heavy. I sat in the conference room, waiting quietly, and prayed silently in my heart, hoping that he could sort out his thoughts as soon as possible.

Time passed by minute by minute. After waiting for about half an hour, he finally came back. This time, I could see calmness and relaxation in his eyes. He said:

"Lawyer Shao, let's follow your plan. I hope you can help me defend my innocence. No matter what the result is, I believe in you.

When xx introduced you to me, I was worried that you were so young and didn't know if you could handle my case well. But after communicating with me for a few months, I can feel your seriousness, responsibility and dedication. I feel relieved that the case is in your hands.

I believe you will do your best to help me get the best result. Even if the result is not ideal, I will not have any regrets. People have to pay for their own cognition . If I really have to go in, I will prepare myself mentally. "

In my daily work, I have always been accustomed to communicating with the parties in a calm and rational state. Even when I am counseling the family members and the parties to vent their emotions, I will be more restrained in my expression. Therefore, facing such frankness and unreserved trust from the parties, I did not know what to say.

In short, I felt a heavy trust. After this conversation, I no longer felt pressure, but full of fighting spirit.

5. Go all out and communicate several times to continuously promote the defense work

During the public security investigation stage, it is not realistic to expect them to voluntarily withdraw the case when there is no absolutely overwhelming evidence to prove the innocence of the parties involved. Therefore, we have to pull the battle line to the procuratorate.

The judicial organs take a long time to handle cases of bail pending trial. After about a year, the police finally transferred the case to the procuratorate, so I contacted the procurator immediately to discuss the case file.

Based on the reading of the case files, I had many phone and face-to-face communications with the prosecutor and submitted several versions of legal opinions. The key points of the defense are briefly summarized as follows:

"Defense Opinion on the Innocent Case of xx Suspected of Illegal Business Operation"

Swipe up and down to view

Dear Prosecutor:

As the defense attorney for xx in this case, after carefully reviewing the case materials, conducting in-depth investigation and evidence collection, and fully communicating with xx, I now express the following innocence defense opinion in accordance with the law, and I sincerely request the prosecutor to carefully consider and adopt it.

1. Background of this case and analysis of xx's criminal motive

xx originally had a stable job and life, but the sudden layoffs at the company broke the peace of his life and plunged him into an unprecedented financial predicament. Under the pressure of unemployment, he faced many heavy burdens in life: the repayment deadlines for mortgages and car loans were coming one after another, his elderly parents needed support, and his young children longed for care and education. The pressure of life was like a boulder on his shoulders, forcing him to find a way out of the predicament and subsidize his family income with a part-time job to maintain his family's basic livelihood. Against this background, xx reluctantly decided to sell his long-collected vinyl records. This behavior was essentially out of his responsibility for the family and his helpless compromise with life, rather than out of subjective intention to pursue illegal interests.

II. The limitations of xx’s understanding of the law

In this case, the sale of vinyl records requires a publication import license, but such qualifications are not common knowledge. As an ordinary citizen, xx's legal knowledge is objectively limited. In his long-term online shopping experience, he found that many sellers openly sold vinyl records on well-known e-commerce platforms such as Taobao. This common phenomenon made him mistakenly believe that the behavior was legal. Moreover, given the huge influence and credibility of Taobao as a national-level APP, xx has reason to believe that the platform will strictly review the business behavior of merchants to ensure that it is legal and compliant. Therefore, when xx registered as a seller on the Taobao platform and passed the platform review, he was more convinced that his sales behavior was recognized by the platform and protected by law.

3. Subjective profit-making purpose and objective behavioral manifestation

After reviewing the case files, the defense attorney found that when the police questioned the witnesses (buyers) about why they chose to buy records sold by xx, almost all buyers said: "Because the price they sell is the lowest on the Internet, and the after-sales attitude is also very good." This fact fully proves that xx's subjective purpose is not to pursue high profits, but to use the method of small profits and quick turnover to try to subsidize the family and reduce the family's financial burden with a small profit. This is consistent with xx's previous statement to the judicial authorities that he sold vinyl records to subsidize his family, and further proves that he did not have the subjective intention of illegal operation to make huge profits.

IV. The Principle of Criminal Modesty and Social Harm Assessment

The principle of restraint in criminal law requires that when we apply criminal law, we should use criminal law as the last resort to adjust social relations. We should only use criminal law when other legal means cannot effectively adjust and regulate social behavior. In this case, although xx's behavior has touched upon the state's management regulations on the market economic order to a certain extent, considering his limited understanding of the law, his subjective lack of intention to pursue illegal interests, and his objective lack of serious social harm, simply identifying him as a crime and imposing a criminal penalty would obviously violate the principle of restraint in criminal law and be inconsistent with the criminal justice policy of combining leniency with severity. Such treatment will not only fail to achieve the special prevention and general prevention purposes of criminal punishment, but may also have an irreversible negative impact on xx and his family, and even trigger a series of social problems, such as family breakdown and children dropping out of school.

V. Justice for the People and the Pursuit of Social Fairness and Justice

The law is an art of fairness and kindness, and its essence lies in maintaining social fairness and justice and the legitimate rights and interests of the people. General Secretary Xi Jinping once told judicial personnel: "Let the people feel fairness and justice in every judicial case!" In this case, if the legal provisions are mechanically applied, xx's special circumstances and cognitive limitations of the law are ignored, and he is convicted and punished, it will undoubtedly cause xx and his family to fall into a deeper predicament, which runs counter to the value of justice for the people. On the contrary, if all factors of the case can be comprehensively considered and xx's behavior is determined not to constitute a crime in accordance with the law, it will not only protect xx's legitimate rights and interests and make him feel the fairness and justice of the law, but also reflect the humanity and substantive justice of justice, and achieve the organic unity of legal effects and social effects.

In summary, the defense counsel believes that this case is caused by xx's limited understanding of the law, and his behavior does not have social harm in the sense of criminal law, and does not meet the criteria for identifying criminal behavior in the criminal justice value system. According to Article 13 of the Criminal Law of the People's Republic of China, xx's behavior is significantly minor and not very harmful, and should not be identified as a crime. I implore the prosecutor to fully consider the defense opinions put forward by the defense counsel when reviewing this case, make a prudent judgment, and make a decision not to prosecute xx or return the case to the public security organ to withdraw the case in accordance with the law , so that xx can truly feel the sunshine of legal fairness and justice, and at the same time set a good judicial example for maintaining social harmony, stability, fairness and justice.

Sincerely,

Shanghai xx District People's Procuratorate

6. The final decision of the procuratorate: the case will be returned to the public security department and the case will be withdrawn.

One afternoon, I suddenly received a call from the client, and his tone was nervous: "Lawyer Shao, the prosecutor just called and asked me to go to make a statement at 3 o'clock this afternoon... Am I going to be arrested?"

After several communications with the prosecutor, I could roughly guess the possible outcome, but because the final decision had not yet been made, I was not willing to hastily draw a definite conclusion, so I just told him, "It's okay, don't think too much, I'll go with you this afternoon."

Because lawyers could not accompany the recording on site, I waited outside for him to come out. The recording took about an hour, and he came out, looking very relaxed. I asked him what questions the prosecutor asked, and he said, "It was just the same questions that I had to repeat before, nothing else. I asked the prosecutor how many years I would be sentenced to, and he didn't say. But I felt that the prosecutor's attitude was quite good this time. At the end, the prosecutor told me not to do this in the future. I said I knew, and I closed the store a long time ago. In addition, the prosecutor also told me that your lawyer is very serious ."

After hearing this, I felt that it was probably close. It should be good news! Because the process had not been completed, the prosecutor did not inform the result on the spot. Later, I told the client to keep the phone open and wait for the news.

Sure enough, a month later, we received the good news we had been waiting for!

(Yes, the procuratorate returned the case to the police, who dropped the case!)

Nearly two years had passed since the incident. Even though I kept telling him to keep calm, I knew that he spent every day in uncertainty and anxiety. So I didn't dare to slack off during the two years. Fortunately, the persistence and hard work of the client and I finally paid off.

7. Why do lawyers defend “bad guys”? Thoughts triggered by this case

I often see a topic being discussed continuously online: Why do lawyers defend bad guys?

To be honest, when I was a student, I also had similar thoughts when I was a law student: From a legal perspective, what is a "bad guy" and what is a "good guy"? Are "criminal suspects" absolutely "bad guys"? Have judicial authorities ever made a mistake in handling a case? For example, in criminal cases such as "I Am Not the God of Medicine", if the defendant is convicted and sentenced, is it really "the punishment fits the crime"? ...

(The stills from the movie "Dying to Survive" are adapted from real cases)

After graduating from graduate school, I chose to be a lawyer when faced with career choices. This case was the first criminal case I handled after I became independent from the team .

In fact, I am very grateful to my client in this case . He did not have any prejudice against me just because I am a female lawyer, very young, and have a baby face.

On the contrary, during the communication, he felt my professional judgment and rigorous attitude in handling cases, and thus chose to trust me 100%.

This trust also strengthened my confidence and direction to continue on the path of criminal defense.

More importantly, this case made me realize that

In criminal cases, there are no absolute "good guys" or "bad guys", nor is there a "truth" that can apply to all cases.

The meaning of the law is not to punish blindly, but to use rationality to distinguish right from wrong and to use procedures to protect everyone's legitimate rights and interests.

The value of a criminal lawyer may not lie in winning a lawsuit, but in using every defense to push society to have fewer unjust cases and more justice.

Because of this, I love this profession and am willing to continue to speak up for those who may be misunderstood.

(The full text is over. To protect the privacy of the parties involved, the relevant content has been modified.)

#Analysis of illegal business crime cases #Criminal lawyer case records #Legal risks of selling overseas publications #Plea and punishment vs. innocent defense game #Sharing experience of non-prosecution in criminal cases

Special statement: This article is an original article by lawyer Shao Shiwei, which only represents the personal views of the author and does not constitute legal advice or legal opinions on specific matters.