What is the crime of buying, selling and storing fireworks without permission?
Since ancient times, the Chinese New Year, there is a fireworks after the sulfur dioxide smell.Without this taste, this year’s ceremony is not complete, a full set of customs without firecrackers, how “firecrackers sound to say goodbye”?Fireworks, as a commodity, not only carry the entertainment and ceremonial functions of major festivals such as Chinese New Year;If a large number of fireworks are transported and improperly kept, they may explode.In 2012, the Supreme People’s Court, The Supreme People’s Procuratorate, the Ministry of Public Security and the State Administration of Regulation issued the Notice on Strengthening investigation of Criminal Responsibility for Illegal Production and Sale of Fireworks suspected of crimes.In view of the behaviors of fireworks may involve the following provisions of the crime of “a, illegal production, management, fireworks and related behavior involving illegal manufacturing, trading, transportation, mailing, storage of gunpowder, fireworks, constitute illegal manufacturing, trading, transportation, mailing, stored explosives crime, shall be convicted and punished in accordance with the stipulations of article one hundred and twenty-five of the criminal law;Where the illegal production or sale of fireworks or other related acts involve the production or sale of fake or inferior products or products not in conformity with safety standards and constitute the crime of producing or selling fake or inferior products or the crime of producing or selling products not in conformity with safety standards, the offender shall be convicted and punished in accordance with the provisions of Articles 140 and 146 of the Criminal Law;Whoever illegally produces or sells fireworks or firecrackers or commits any related act that constitutes a crime of illegal business operation shall be convicted and punished in accordance with the provisions of Article 225 of the Criminal Law.”If the operation of fireworks contains black gunpowder, pyrotechnic drugs, explosion occurred in the operation process, especially in the case of casualties, does it necessarily constitute the crime of illegal explosives trading?For the purchase of fireworks for celebration units and individuals, will constitute the storage of explosives crime?This question may sound unreasonable.Contrary to common sense, it is a real case in judicial practice.For example, “Criminal Trial Reference” guidance case No. 1336 “Yi Xx illegal Business case — The qualitative behavior of illegal business fireworks products” discusses such a problem.The case of Yi xx, selling children’s toys throwing cannon, because of the large storage of the explosion caused eight deaths, Yi xx was accused of the crime of illegal trade in explosives (the final court according to the crime of illegal business conviction and sentencing, sentenced to fixed-term imprisonment of 10 years).In cases of death or injury, the statutory penalty for illegal trade in explosives is 10 years imprisonment, life imprisonment or death.The core question of whether such acts constitute the crime of illegal trading of explosives is whether fireworks can be identified as “explosives” in the criminal law because of their ingredients including black gunpowder and pyrotechnic drugs.The pre-administrative regulations did not regulate fireworks in accordance with the “explosives” in the Criminal Law, meaning that the sale of fireworks needs to be approved in accordance with the requirements for the sale of explosives.According to the Measures for the Implementation of the License for the Sale of Civil Explosives, the sale of explosives requires the approval of provincial defense science and technology departments.For enterprises engaged in the sale of civil explosives, the conditions should be very strict, the application materials are various, not in our daily life, see the sale of fireworks vendors can meet the requirements.Article 3 of the Regulations on the Control of Civil Explosives reads: “The State implements a license system for the production, sale, purchase, transportation and blasting operations of civil explosives.Without permission, no unit or individual may produce, sell, purchase or transport explosives for civil use, or engage in blasting operations.It is strictly forbidden to transfer, lend, lend, mortgage, present, hide or illegally hold civilian explosives.”People buy fireworks for the Spring Festival, and it is impossible for anyone to ask the relevant authorities for approval before buying them.That is to say, the fireworks in accordance with the criminal law of explosives understanding, and our daily life to buy and sell fireworks experience is inconsistent.If anyone buys firecrackers and goes to the agency for approval, people think they can be sent straight to a mental hospital.Explosives in the criminal law in criminal law does not clearly stipulate the scope of explosives, the 2014 revision of the regulations on the safety management of civil explosives as prescribed in paragraph 2 of article 2: “civil explosives, the means for non-military purposes, included in the civil explosives springtime delights watches all kinds of gunpowder, explosives and its products, and detonator, the fuse ignition, blasting equipment.”Paragraph 6 of Article 1 of the Interpretation of the Supreme People’s Court on Several Issues concerning The Specific Application of The Law in The Trial of Criminal Cases involving Illegal Manufacturing, Trading and Transportation of Guns, Ammunition and Explosives (amended in 2009) stipulates thatWhoever illegally manufactures, buys or sells, transports, mails or stores explosives, propellant or gunpowder of more than 1 kg or pyrotechnics of more than 3 kg or detonators of more than 30 meters or fuses or detonating cords of more than 30 meters shall be convicted and punished for the crime of illegally manufacturing, buys or sells, transports, mails or stores guns, ammunition or explosives.According to the above administrative regulations and judicial interpretations, “explosives” in the sense of criminal law should include explosives, propellants, black powder, pyrotechnic drugs, detonators, fuses, detonating cords and other items.Fireworks products often contain black powder or pyrotechnic ingredients, but it is not mechanically identified as “explosives” fireworks.According to the “List of Explosives for Civil Use” issued by the Commission of Science, Technology and Industry for National Defense and the Ministry of Public Security in 2016, black gunpowder belongs to civil explosives, with the exception of “black gunpowder used for the production of fireworks”.From the material properties of black gunpowder and pyrotechnic medicine, the danger of gunpowder is directly related to its quantity. After gunpowder is made into finished fireworks and firecrackers, its power is reduced, its explosive property is weakened, and its entertainment property is stronger.To list fireworks products as explosives in the sense of criminal law will expand the scope of attack, which is inconsistent with the common people’s understanding and traditional customs.Article 2 of the Regulations on the Safety Management of Fireworks, revised in 2016, states: “…The term “fireworks” as mentioned in these Regulations refers to fireworks products and articles such as civil black powder, pyrotechnic powder and fuse used in the production of fireworks and firecrackers.”It can be seen that fireworks and firecrackers include fireworks products in the sense of finished products and used for the production of fireworks and firecrackers products civil black powder, pyrotechnic drugs, kindling and other raw materials.Therefore, selling fireworks without a permit does not constitute the crime of trafficking in explosives.Making, transporting and buying fireworks are not equal to the crime of making, transporting and buying explosives in criminal law.Does selling fireworks without permission constitute the crime of illegal business operation?Unlike tobacco and table salt, fireworks products are not exclusive goods.Fireworks products are not restricted for sale.(Articles subject to restricted trading refer to articles subject to restricted trading by the State for a certain period.Such as civilian explosives).If the quantity of unauthorized selling of fireworks and firecrackers is large enough to disturb the market order, it is possible to apply the bottom clause of the crime of illegal business operation under Article 225 (4) of the Criminal Law.The unauthorized sale of fireworks products violates article 3 of the Regulations on the Safety Administration of Fireworks. “The State shall implement a license system for the production, sale and transportation of fireworks and the holding of fireworks evening parties and other large-scale fireworks discharge activities.Without permission, no unit or individual may produce, sell or transport fireworks or hold fireworks evening parties or other large-scale fireworks setting off activities.”This Regulation was adopted at the 121st Executive meeting of The State Council on January 11, 2006, and came into force as of the date of promulgation. Later, it was revised by decree No. 666 of The State Council of the People’s Republic of China on February 6, 2016. It is an administrative regulation, and violation of this Regulation is “violation of state regulations”.According to the above “notice of Illegal Production and operation of fireworks”, the illegal production and operation of fireworks products can constitute the crime of illegal operation.Of course, not any business without state permission of fireworks products, in violation of the fireworks safety management system, disturb the market order, has produced dangerous consequences in the sense of criminal law.To determine whether the circumstances are serious by referring to the degree of “serious circumstances” in the first three acts in Article 225 of the Criminal Law or the provisions of “serious circumstances” in the relevant judicial interpretation in Article 225.Fireworks sales, more during the Spring Festival.It has very strong seasonality.During the Spring Festival kiosks, small supermarkets, small vendors set up stalls, unauthorized temporary sales of fireworks and firecrackers is normal.For the festive period to sell fireworks directly to the masses of small vendors, even if they sell a large number, but also can not say that can “disrupt the market order” of the seriousness, on the contrary, if they do not sell, but not conducive to the masses to buy fireworks holidays.This is consistent with the guiding case No. 97 issued in 2018, “Wang Lijun’s Illegal business Retrial was changed to find no crime”.Wang Lijun’s case was retried and found not guilty because his behavior facilitated the sale of grain by local people. Even though “his behavior violated the relevant provisions of the state grain circulation management at that time, it did not reach the harm degree of seriously disrupting the market order.It shall not constitute a crime of illegal business operation if it does not have the social harm, criminal illegality and necessity of criminal punishment equivalent to the crime of illegal business operation stipulated in Article 225 of the Criminal Law “.Author: Ding Huimin, lawyer of Beijing Dacheng Law Firm, doctor of criminal Law from Tsinghua University.Invited researcher of Criminal Risk Prevention and Control Center of Tianjin Normal University, expert of juris master thesis review of Xiamen University Law School.Assisted Professor Zhang Mingkai in collating the bestseller “Private School of Criminal Law”;He has published several papers in core journals of law, such as Global Law Review, Modern Law, Politics and Law, etc.Good at dealing with duty crime cases (have dealt with more than 50 cases of duty crime cases of leading cadres at the department level) and bribery cases of entrepreneurs;Handled a number of major cases involving fraud, illegal absorption of public deposits, loan frauds, infringement of commercial secrets, smuggling, involvement in crime and evil, and civil cases involving the intersection of civil and criminal punishment.Lawyer Ding Huimin has been sharing legal knowledge for public benefit in toutiao “Criminal Defender Comment” to help the rule of law.The analysis of law based on factual evidence is the source value of the rule of law.