Special Disclaimer: This article is an original work by Attorney Shao Shiwei. It reflects only the author’s personal views and does not constitute legal advice or a legal opinion on any specific matter. For article reprints, legal consultations, or professional exchanges, please add: sswls66.
He is a father. After being laid off by his company and falling into financial hardship, he decided to sell his long-collected vinyl records to support his family. However, one day, police officers suddenly came to his door and informed him that his conduct was suspected of constituting a criminal offense, potentially exposing him to a fixed-term imprisonment of more than five years.
Imagine if this person were you or a member of your family reading this. Could you accept such an outcome?
In real life, many people may inadvertently expose themselves to legal risks due to a lack of legal knowledge. Today, I would like to share with you a real case in which charges of illegal business operations were dismissed and the case was closed with a finding of no guilt.
1
“Attorney, will I go to prison?”
Late one night, I suddenly received a phone call from a middle-aged man.
“Hello, Attorney Shao. My friend XX gave me your number. I have just been released from the police station. The police questioned me all day today, and I have just been granted bail pending trial. Are you available now? I would like to know whether my case is serious and whether I will be sentenced to imprisonment.”
I still remember that, from his voice on the other end of the line, I could sense that he was striving to restrain his panic and helplessness while making every effort to discuss the case with me. I immediately set aside my current work and said, “Yes, please tell me the specific circumstances of your case.”
It turned out that he had formerly been a senior executive at a foreign-invested enterprise. In his forties, he had maintained a hobby of collecting vinyl records for many years. Approximately six months ago, after being laid off, he began driving for Didi as a part-time job to make ends meet. At the same time, he listed his long-collected vinyl records on second-hand platforms for sale to supplement his household income. Due to strong sales, in the past two months he purchased a substantial number of vinyl records from overseas and began selling them on a Taobao platform.
On the morning of the day he contacted me, as he was preparing to leave home to drive for Didi, he suddenly heard knocking at his door. As soon as he opened it, a large group of people rushed in, restrained him, placed him in handcuffs, and took him to a police station in Shanghai. He underwent interrogation and statement-taking for approximately ten hours, and it was already late at night when he was released.
After inquiring with the handling police officers, he learned that the case arose because a batch of vinyl records he had procured from overseas was detected by customs authorities, and thereforePublic security organs, customs authorities, market regulation administrations, press and publication administrations, cultural affairs bureaus, and other relevant departments established a special task force to conduct joint investigations.，He was placed under investigation for the crime of illegal business operations.
He was deeply perplexedas to why his sale of records could constitute a criminal offense.
At the same time, he was greatly alarmed,wondering how serious the matter truly was and, if convicted, how many years of imprisonment he might face.
2
Many people assume that certain lawful business activities
may in fact involve criminal liability.
According to the client’s account, the vinyl records he collected and sold consisted primarily ofclassic repertoire, mostly instrumental light music without lyrics, and did not include any prohibited content.Moreover, he observed that numerous merchants were selling vinyl records on platforms such as Taobao and Xianyu, and he himself occasionally purchased such items on domestic e-commerce platforms. He therefore found it difficult to understand how conducting such business openly on these platforms could rise to the level of criminal liability.
This issue actually involves a relatively obscure area of law, one with which even many practicing lawyers are unfamiliar. To sell vinyl records purchased from abroad within mainland China, one must obtain a specific license or permit, known asImport Business License for PublicationsHowever, obtaining this license is not a matter of routine approval. In handling this case, I conducted field research by visiting the relevant authorities, and the staff provided the following response:In Shanghai, only four or five entities hold this licensing qualification, all of which are large state-owned enterprises such as major book publishers. Individuals are ineligible to apply.。
Thus, it can be concluded that, in practice, applications for an Import Business License for Publications exhibit certain monopolistic characteristics, and individuals such as my client are unable to apply. More importantly, many people are unaware that obtaining this qualification is a prerequisite for the lawful sale of vinyl records purchased from overseas.
Furthermore, it follows that any domestic merchants selling online or offline, being unable to obtain this qualification themselves, face the risk of criminal apprehension whenever their sales volume meets the threshold for criminal case filing.
(A search on e-commerce platforms currently reveals that numerous merchants continue to offer such items for sale.)
3
Distress and Anguish
Under applicable legal provisions, where an individual’s sales amount reaches RMB 150,000 or profits exceed RMB 50,000, the circumstances are deemed “particularly serious” for the crime of illegal business operations, warranting a fixed-term imprisonment of five years or more.
Although he had not yet compiled statistics at the time the incident came to light, he assured me with certainty that, despite the relatively short six-month period, his actual sales far exceeded the aforementioned amounts, with profits amounting to slightly over RMB 50,000.
As a senior executive at a foreign-invested enterprise with many years of overseas study experience, he was perceived by others as having a strong educational background, a happy family, and an enviable career. He found it utterly unacceptable that his status had become that of a criminal suspect, and even less acceptable that he faced a sentence of five or more years of actual imprisonment. Although released on bail pending trial, with his normal work and daily life largely unaffected, during our initial communications over an extended period he appeared extremely haggard, frequently awakened from nightmares at night. In every meeting and phone call with him, I could sense his profound fear and anxiety.
This intense emotional distress also affected me. On one hand, given his circumstances, it is indeed difficult for anyone to come to terms with such a situation if they were to place themselves in his shoes;because this was truly not a case of knowingly violating the law.
For example, it is common knowledge that the sale of tobacco and alcohol, controlled pharmaceuticals, and similar items requires a license, while the sale of items such as narcotics, wildlife, firearms, and ammunition is prohibited. If an individual chooses to take such risks in pursuit of high profits, they generally have an expectation of the potential criminal penalties they may face. In cases of this nature that I have handled, even when detained in a detention center, the defendants often remained relatively calm.
On the other hand, I also reviewed cases with circumstances similar to his,which further confirmed that there is no dispute that unlicensed sales constitute a crime,placing significant pressure on the handling of the case.
Upon trial, the following facts were ascertained: [Case No.: (2018) Min 0322 Xing Chu 605]
From December 29, 2016, to June 23, 2017, the defendant, Chen XX,without obtaining a license for the import and export of publications,purchased audio-visual productsfrom overseas sourcesand illegally sold 2,720 units of audio-visual products through the Taobao store "Haha Records," with total business proceeds amounting to RMB 307,444. On June 23, 2017, law enforcement officers from the Culture, Sports, Radio, Television, and Press Publication Bureau of Xianyou County, Fujian Province, seized 1,368 units of audio-visual products belonging to the defendant, Chen Jianming, that had not yet been sold. The Putian Municipal Bureau of Culture, Radio, Television, Press, and Publication determined that all seized audio-visual products were illegal publications.
The judgment is as follows:
Defendant Chen XXconvicted of the crime of illegal business operations, sentenced to two years of fixed-term imprisonment, with a three-year probation period, and fined RMB 30,000.
Similarly, in a case involving the absence of a license for the import and export of publications, with sales amounting to RMB 300,000, the sentence was reduced to a lower tier due to the defendant’s voluntary surrender. Furthermore, owing to mitigating circumstances such as pleading guilty and accepting punishment, and making restitution, a probationary sentence was ultimately imposed.
However, in the present case, after my client and I conducted a calculation, the sales amount exceeded RMB 700,000, which is more than twice the amount in the aforementioned case. Moreover, as the public security organs directly arrested my client at his residence, the circumstance of voluntary surrender does not apply.
My client’s profit from these activities amounted to only RMB 50,000. Due to his lack of understanding of the relevant legal provisions, is he truly to be sentenced to more than five years of fixed-term imprisonment? How could he endure such a lengthy term of imprisonment? I was plunged into deep distress.
4
How should I formulate the defense strategy?
Pleading guilty and accepting punishment? Or pleading not guilty?
As lawyers, especially when handling criminal cases, we are inevitably influenced by the emotions of our clients and their families. However, the ability to quickly detach from emotional involvement and maintain rationality is an essential professional competency for lawyers. If lawyers become entangled in an emotional vortex alongside their clients or families, thereby losing their capacity for rational thought, who will provide legal advice to the client during each investigation and interrogation by the case-handling authorities? Particularly in certain scenarios, it is a necessary litigation strategy to advocate for the client’s legal rights and engage in adversarial proceedings against judicial organs. In such circumstances, lawyers must maintain rational thinking to carefully weigh options and make the most advantageous decisions for their clients.
Therefore, after several days of distress, I detached myself from these emotions. I proceeded to reflect on the case itself and outlined the key issues in this matter:
-
Regarding the current business volume, whether the amount currently calculated by the judicial organs is reasonableWhether the amount is reasonableand what the specific calculation method is.
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If the amount determined by the judicial authorities is higher than the amount calculated by our side, how can we persuade the judicial authorities to adopt our calculation method?
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The business turnover includes costs advanced by the party for the buyer,such as postage and packaging,which we propose to deduct. Can this claim be supported?
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Xianyu is a second-hand platform. Therefore, regarding the resale of the party’s own records on such a platform, we argue that the portion involvingthe sale of the party’s personal collectionshould not be included in the total amount of illegal business operations. Can this argument be supported?
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Although the party reinvested part of the profits into purchasing more records,and considers this point favorableto argue that their actual profit was lower, could this be characterized by the judicial authorities asexpansion of productionthereby adversely affecting our position?
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On the Taobao platform, the client operated under a corporate name. Is it possible to argue forcorporate crime？
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The case arose because vinyl records purchased overseas by the client were seized by customs. In addition to the current charge of illegal business operations, does the conduct also involvethe crime of smuggling ordinary goods and articlesIf both offenses are established, should the heavier offense be applied exclusively, or should cumulative punishment for multiple offenses be imposed?
(Similar case news; source: Official website of Beijing Customs)
……
The above defense points presuppose that the judicial authorities have found the client guilty, and they represent key issues requiring attention. However, in this case, because the client’s sales volume far exceeds the threshold for initiating a criminal case for conduct occurring more than five years ago, even after making corresponding deductions,it remains extremely difficult to reduce the amount involved to fall within the range punishable by less than five years’ imprisonment. Therefore, I must consider：
if the final sentence is five years or more, and the client no longer has the mitigating circumstance of voluntary surrender to reduce the sentencing tier, whether it is currently possible to provide leads on unlawful or criminal activities toseek recognition of meritorious service？
In fact, after the case came to light, the client was deeply perplexed: why were so many online store vendors selling vinyl records left untouched, while only he was investigated? Accordingly, I accompanied the client to a local police station (not the station handling this case) to report this situation and communicated with the officers. However, surprisingly, the officers responded: “Cases of this type are exceedingly rare; we have never handled such cases and lack relevant experience. Therefore, we will not accept the leads provided by your side.”。
In practice, it is actually very difficult to secure recognition for meritorious service. Although I had certain expectations, seeingthis almost sole hope of securing a reduced sentencing tier for the client shattered, I felt deeply disappointed. What could be done? Only by securing a reduced sentencing tier would there be a further possibility of obtaining a sentence of less than three years or even probation for the client.
However, I was unwilling to accept this outcome and determined not to give up so easily. Although the hope of securing recognition for meritorious service had been dashed,this effort was not entirely meaningless, because through communication with the police officers, I learned that：such illegal and criminal conduct is rare, even for grassroots police officers who handle a large volume of cases annually. Moreover, they do not proactively initiate investigations into such cases. Therefore, it can be concluded that my client’s business operations do not fall within the scope of strict enforcement crackdowns by law enforcement authorities.
Based on the above understanding, after the hope of securing recognition for meritorious service was extinguished, I formed a bold idea: I wanted to take a chance and argue whetherthe client’s conduct did not constitute a crime?
However, if pursuing a not-guilty defense, there remained a significant obstacle: According to the client’s statement, during his initial deposition, due to experiencing such a scenario for the first time, feelings of panic and fear, and the pressure of interrogation lasting up to ten hours, hemade statements in the interrogation record indicating his willingness to admit guilt and accept punishment.。
Given that the client admitted guilt and accepted punishment, and there was no dispute regarding the legal characterization that his conduct constituted a crime, a not-guilty defense strategy was clearly a high-risk move. The consequences of such an unconventional approach would ultimately be borne by the client himself, and I had no authority to make this decision unilaterally.
Therefore, upon forming this idea, I immediately called the client to briefly explain my thoughts. He was very excited upon hearing this proposal over the phone, so we promptly scheduled a meeting at the law firm. I still remember clearly that afternoon, from 1:30 PM until 8:00 PM, for over six hours, I outlined the current objective circumstances of the case,the pros and cons of the current situation, my defense strategy, the available options, and the corresponding defense strategies, and I engaged in thorough communication with the client.
At the end of this conversation, he looked at me, his eyes filled with worry, helplessness, and expectation, and asked softly, "Attorney Shao, what are the worst-case and best-case outcomes for my case?"
Although it was difficult to say, I had to make sure the client clearly understood the current situation: "Based on legal provisions and existing case precedents, if found guilty, you may be sentenced to six to seven years of fixed-term imprisonment. As for the best-case scenario, after analyzing the circumstances of this case, I believe there is an opportunity to strive for a not-guilty verdict."Even though you have previously made a guilty confession, lawyers have the right to independently exercise their defense rights, which means that even if the client pleads guilty, under legal provisions, the lawyer can still pursue a not-guilty defense."
Hearing this, he fell into deep thought. After a moment, he slowly stood up and said, "I'll go outside for a cigarette." I nodded slightly and responded, "Alright, I'll wait for you to come back." He turned and walked toward the door, his steps somewhat heavy. I sat in the conference room, waiting quietly, silently hoping that he would soon clear his thoughts.
Time passed minute by minute. After about half an hour, he finally returned. This time, I saw calmness and relaxation in his eyes. He said:
"Attorney Shao, let's proceed according to the plan you mentioned. I hope you will help me pursue a not-guilty defense. Regardless of the outcome, I trust you."
When XX introduced you to me, I was worried that your youth might affect your ability to handle my case well. However, through our communications over these past few months, I have felt your seriousness, responsibility, and dedication. With you handling my case, I feel reassured.
I believe you will do your utmost to secure the best possible result for me. Even if the outcome is not ideal, I will have no regrets.People must bear the consequences of their own understanding....if I ultimately end up in detention, I will mentally prepare myself.”
In my daily practice, I have always maintained a calm and rational demeanor when communicating with clients. Even when providing emotional support to family members and clients, I remain restrained in my expression. Therefore, faced with such candid and unreserved trust from the client, I found myself at a loss for words.
In short, I felt the weight of this profound trust. After this conversation, what I felt was no longer pressure, but a surge of determination.
5
To strive with full commitment, and patiently await a favorable outcome.
During the public security investigation stage, it is unrealistic to expect the authorities to voluntarily withdraw the case in the absence of overwhelming evidence proving the client’s innocence. Consequently, we had to extend our defense efforts to the procuratorate stage.
For cases involving release on bail pending trial, the judicial handling period is often protracted. Approximately one year later, the public security bureau finally transferred the case to the procuratorate. I immediately contacted the prosecutor to arrange for review of the case file.
Based on the review of the case file, I engaged in multiple telephone and in-person communications with the prosecutor and submitted several versions of legal opinions. The key points of the defense are summarized as follows:
Legal Opinion on Not Guilty Plea in the Case of XX Alleged Illegal Business Operations
Dear Prosecutor:
As the defense counsel for XX in this case, having thoroughly reviewed the case materials, conducted in-depth investigations and evidence collection, and communicated extensively with XX, I hereby submit the following legal opinion arguing for not guilty, respectfully requesting your careful consideration and adoption.
I. Background of the Case and Analysis of XX’s Motive
XX originally enjoyed a stable job and life. However, unexpected layoffs at his company disrupted his peace and plunged him into unprecedented financial hardship. Under the pressure of unemployment, he faced heavy burdens: mortgage and car loan payments were due, his elderly parents required support, and his young children needed care and education. The weight of life pressed heavily upon him, forcing him to seek ways out of his predicament by taking on part-time work to subsidize household expenses and maintain basic livelihood. Against this backdrop, XX made the difficult decision to sell his vinyl record collection, which he had cherished for many years. This act was essentially driven by a sense of family responsibility and helplessness in the face of life’s pressures, rather than by any subjective intent to pursue illegal profits.
II. Limitations in XX’s Understanding of the Law
In this case, the sale of vinyl records requires an Import License for Publications. However, such licensing requirements do not fall within the scope of common knowledge among the general public. As an ordinary citizen, it is an objective fact that XX has certain limitations in his legal knowledge. During his long-term experience with online shopping, he observed that numerous sellers openly sold vinyl records on well-known e-commerce platforms such as Taobao. This widespread phenomenon led him to mistakenly believe that such conduct was lawful. Moreover, given the significant influence and public credibility of Taobao as a nationally prevalent application, XX had reasonable grounds to believe that the platform would strictly review merchants’ business operations to ensure their compliance with laws and regulations. Therefore, after XX registered as a seller on the Taobao platform and passed the platform’s review, he became even more convinced that his sales activities were endorsed by the platform and protected by law.
III. Subjective Profit Motive and Objective Conduct
After reviewing the case file, the defense counsel discovered that when police officers questioned the witnesses (buyers) about why they chose to purchase records from XX, nearly all buyers consistently stated: “Because his prices were the lowest across the entire internet, and his after-sales service attitude was very good.” This fact fully confirms that XX did not subjectively intend to pursue high profits; rather, he adopted a strategy of small profits and quick turnover, attempting to subsidize household expenses and alleviate his family’s financial burden through meager profits. This aligns with XX’s prior statements to judicial authorities that his sale of vinyl records was intended to supplement his family income, further corroborating that he lacked the subjective intent to engage in illegal business operations for the purpose of obtaining exorbitant profits.
IV. The Principle of Modesty in Criminal Law and Assessment of Social Harm
The principle of modesty in criminal law requires that criminal law be applied as the last resort for regulating social relations. Criminal sanctions should only be invoked when other legal means cannot effectively regulate and standardize social conduct. In this case, although XX’s conduct touched upon state regulations governing market economic order to some extent, considering his limited understanding of the law, his lack of subjective intent to seek illegal benefits, and the fact that his actions did not cause serious social harm in objective terms, simply classifying his conduct as a crime and imposing criminal punishment would clearly violate the principle of modesty in criminal law and fail to align with the criminal justice policy of balancing leniency and severity. Such an approach would not only fail to achieve the special and general preventive purposes of punishment but could also cause irreparable negative impacts on XX and his family, potentially triggering a series of social problems, such as family breakdown and children dropping out of school.
V. The Pursuit of Justice for the People and Social Fairness and Justice
Law is the art of goodness and equity, and its essence lies in safeguarding social fairness and justice and protecting the legitimate rights and interests of the people. General Secretary Xi Jinping has instructed judicial personnel to “ensure that the people feel fairness and justice in every judicial case.” In this case, mechanically applying legal provisions while ignoring XX’s specific circumstances and his limited understanding of the law, and thereby convicting and punishing him, would undoubtedly plunge XX and his family into deeper hardship, running counter to the value of justice for the people. Conversely, if all factors of the case are comprehensively considered and XX’s conduct is determined in accordance with the law not to constitute a crime, this would not only protect XX’s legitimate rights and interests, allowing him to perceive the fairness and justice of the law, but also reflect the humanization of justice and substantive justice, thereby achieving an organic unity of legal and social effects.
In summary, the defense counsel submits that this case arose due to XX’s limited understanding of the law. His conduct does not possess the social harmfulness required under criminal law and does not meet the standards for identifying criminal conduct within the framework of criminal justice values. Pursuant to Article 13 of the Criminal Law of the People’s Republic of China, XX’s conduct involves circumstances that are significantly minor and causes little harm, and therefore should not be deemed a crime. We respectfully request the prosecutor to fully consider the defense opinions presented herein and exercise prudent judgment in reviewing this case,to make a decision not to prosecute XX in accordance with the law or to return the case to the public security organ for dismissal, thereby allowing XX to truly feel the sunshine of legal fairness and justice, while also establishing a sound judicial precedent for maintaining social harmony, stability, fairness, and justice.
Respectfully submitted to
People's Procuratorate of xx District, Shanghai
6
Dawn Arrives
One day, I received a call from my client, who said in a panic, "Attorney Shao, the prosecutor has asked me to go to the procuratorate at 3 p.m. this afternoon to give a statement.What should I do? Will I be arrested?"
After several communications with the prosecutor, I could roughly anticipate the likely outcome. However, as the final decision had not yet been issued, I considered it inappropriate to provide a definitive conclusion prematurely. Therefore, I simply told him, "It will be fine; do not overthink it. I will accompany you there this afternoon."
Since attorneys are not permitted to be present during the taking of statements, I waited outside for him to come out. The statement-taking process lasted approximately one hour. When he emerged, he appeared quite relaxed. I asked him what questions the prosecutor had posed. He replied, "He mainly asked me to repeat the same questions as before; there was nothing else significant. I asked the prosecutor how many years I might be sentenced to, but he did not say. However, I felt that the prosecutor's attitude was quite favorable this time. At the end, the prosecutor told me not to engage in such activities in the future. I said I understood and that I had closed my shop long ago. Additionally,the prosecutor also said to me, 'Your attorney is very diligent.'。”
Upon hearing this, I felt that the outcome was largely as expected. It was likely good news! Because the procedural steps had not yet been completed, the prosecutor did not announce the result on the spot. Subsequently, I advised my client to keep his phone accessible and simply await further notice.
As expected, one month later, we received the long-awaited good news!
(Indeed, the procuratorate returned the case to the public security organs, which then withdrew the case!)
By this time, nearly two years had passed since the incident occurred. Although I had consistently advised my client to maintain a calm mindset, I was well aware that he had spent each day in a state of uncertainty and anxiety. Therefore, throughout these two years, I did not dare to relax in the slightest. Fortunately, our joint persistence and efforts ultimately yielded results.
7
Some Reflections
I often see a topic that continues to be discussed online:Why do lawyers defend "bad people"?
To be honest, during my student days, when I was still a law student, I had similar reflections: From a legal perspective, what exactly constitutes a "bad person" and a "good person"? Is a "criminal suspect" necessarily an absolute "bad person"? Do judicial authorities ever mishandle cases? For instance, in criminal cases such as "Dying to Survive," if the defendant is convicted and sentenced, does the punishment truly fit the crime? ...
(Still from the film "Dying to Survive," adapted from a real case)
After graduating with my master's degree, when facing career choices, I chose to become a lawyer. This case was preciselythe first criminal case I handled after becoming independent from my team.。
In fact, I am very grateful to my client in this case.He did not hold any prejudice against me because I am a female lawyer, young, and have a baby-faced appearance.
Instead, through our communications, he perceived my professionalism (after all, before becoming independent from the team, I had already handled over one hundred cases) and my rigorous approach to case handling, thereby placing his full trust in me.It was precisely because of representing this case that I gained tremendous confidence and reaffirmed my subsequent career choice—to become a criminal defense lawyer.
Furthermore, in the process of handling this case, I deeply realized that there are no absolute rights or wrongs; each case has its own particularities. There are no absolute "good people" or "bad people" in this world; everyone is entitled to equal treatment before the law. The life of the law lies in its practice; blind and mechanical application of statutory provisions would, on the contrary, lead to more wrongful convictions and miscarriages of justice.
The value of a criminal defense lawyer lies not only in defending the client, but also in upholding judicial fairness, thereby better safeguarding the lawful rights and interests of each individual.
(End of full text)
(To protect the privacy of the parties involved, relevant content has been modified.)
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