【立法动态 Judicial News】 

1.“两高”发布司法解释 依法严惩涉地下钱庄犯罪

1. Top Judicial Organs' Judicial Interpretations Signal Future Severe Crackdown on Criminal Practices of Underground Banks

 

背景摘要：日前，最高人民法院、最高人民检察院联合下发《关于办理非法从事资金支付结算业务、非法买卖外汇刑事案件适用法律若干问题的解释》（下称《解释》），自2019年2月1日起施行。

Background Information：Recently, the Supreme People's Court ("SPC") and the Supreme People's Procuratorate ("SPP") have jointly distributed the Interpretations on Several Issues Concerning the Application of Law in Handling Criminal Cases Involving Illegal Fund Payment and Settlement Business and Illegal Foreign Exchange Trading (the "Interpretations"), with effect from February 1, 2019.

 

《解释》共12条，其内容包括：一是非法从事资金支付结算业务、非法买卖外汇的认定标准，以及“情节严重”“情节特别严重”的认定标准；二是非法经营罪、洗钱罪、帮助恐怖活动罪的竞合处罚原则；三是非法经营数额、违法所得数额的认定标准、处罚原则及判处罚金的标准；四是单位犯罪的定罪量刑标准；五是从宽处罚的认定条件和标准；六是非法从事资金支付结算业务、非法买卖外汇刑事案件犯罪地的认定；七是《解释》的时间效力。其中，《解释》明确了“非法为他人提供支票套现服务”等四种“非法从事资金支付结算业务”的情形。

12 articles of the Interpretations expound on seven matters. First, it sets out the criteria to identify illegal fund payment and settlement business and illegal foreign exchange trading and the criteria to determine "which circumstances are serious" and "which are extremely serious". Second, it clarifies punishment principles when a criminal is concurrently charged with several counts of "illegal business operation", "money-laundering" and "aid to terrorist activities". Third, it makes clear the criteria to determine the amount of illegal business and the amount of illegal gains, the punishment principles, and the criteria to impose fines. Fourth, it presents the criteria of conviction and sentencing for crimes committed by entities. Fifth, it specifies conditions and criteria to give lenient punishment. Sixth, it touches upon how to determine the place where the crime takes place, in a criminal case involving the illegal fund payment and settlement business or illegal foreign exchange trading. Seventh, it provides the term of validity of the Interpretations. Among others, the Interpretations outline four practices related to the illegal fund payment and settlement business, including "offering others unlawful services to cash cheques".

 

盈科评论：地下钱庄已成为不法分子从事洗钱和转移资金的最主要通道，不但涉及经济领域的犯罪，还日益成为电信诈骗、网络赌博等犯罪活动转移赃款的渠道，成为贪污腐败分子和恐怖活动的“洗钱工具”和“帮凶”，严重扰乱金融市场秩序，严重危害国家金融安全和社会稳定，因此必须依法予以严惩。

Yingke Comment’s：Underground banks have become the main channel for criminals to engage in money laundering and transfer of funds. They not only involve crimes in the economic field, but also increasingly become channels for telecommunication fraud, online gambling and other criminal activities to transfer money, and become "money laundering tools for corrupt elements and terrorist activities." "And "accomplice" seriously disrupts the financial market order and seriously jeopardizes the country's financial security and social stability. Therefore, it must be severely punished according to law.

 

2.商务部决定进一步优化对外贸易经营者备案登记工作

2. MOFCOM Decides to Further Optimize Record-filing and Registration of Foreign Trade Operators

 

背景摘要：近日，商务部下发《关于进一步优化对外贸易经营者备案登记工作的通知》（下称《通知》），自2019年3月1日施行。

Background Information：The Ministry of Commerce ("MOFCOM") has recently distributed the Circular on Further Optimizing the Record-filing and Registration of Foreign Trade Operators (the "Circular"), with effect from March 1, 2019.

 

根据《通知》，简化收取纸质版申请材料，在对外贸易经营者备案登记应用中增加上传扫描件功能。企业新申请、变更备案登记时，可网上提交营业执照复印件及签字盖章的对外贸易经营者备案登记申请表原件等申请材料扫描件。《通知》明确，完善《对外贸易经营者备案登记表》遗失或损坏补办手续。《对外贸易经营者备案登记表》遗失或损坏，申请人需补领的，各备案登记机关不再指定报刊声明作废。企业按照自负其责的原则，向原备案登记机关提交遗失或损坏补领书面申请。《通知》还对办理备案登记材料等事宜作出规定。

According to the Circular, the requested written application documents will be simplified and a new function that enables operators to upload the scanned copies will be added into the application developed for the record-filing and registration of foreign trade operators. To file a record and registration for the first time or alter the information, an enterprise may submit online the scanned copies of relevant application documents, including the photocopy of its business license and the original copy of the Application Form for Record-filing and Registration of Foreign Trade Operators bearing the seal and the signature. Also, the Circular clearly states that, formalities for replacing a Record-filing and Registration Form for Foreign Trade Operators which has been lost or damaged will be optimized, adding that where an applicant needs a new Record-filing and Registration Form for Foreign Trade Operators as the former one has been lost or damaged, the record-filing and registration authority will no longer require it to declare on the designated newspaper or magazine the invalidity of the lost or damaged one. Enterprises shall, at their own risk, file written applications for the replacement of the lost or damaged forms to the original record-filing and registration authorities. Moreover, the Circular clarifies the documents requested for the record-filing and registration and other matters.

 

盈科评论：商务部进一步优化对外贸易经营者备案登记工作体现了我国政府高效便民的行政原则， 让企业办事“少跑腿”，以减轻企业负担，营造法治化、国际化、便利化的营商环境，也体现了我国鼓励发展对外贸易，追求维护公平、自由的对外贸易秩序的原则。

Yingke Comments：The Ministry of Commerce further optimizes the registration and registration of foreign trade operators, which reflects the administrative principle of high efficiency and convenience for the Chinese government, allowing enterprises to “learn errands” to reduce the burden on enterprises and create a business environment of legalization, internationalization and convenience, and which also reflects that China encourages the development of foreign trade and pursues the principle of maintaining a fair and free foreign trade order.

 

【商业热点 Business Focus】

 

3. 十二部门：加快推进商品市场发展平台经济

3. 12 Departments to Accelerate Development of the Platform Economy via Commodity Markets

 

新闻综述：日前，商务部等十二部门联合发出《关于推进商品交易市场发展平台经济的指导意见》（下称《意见》）。

News Brief：Recently, 12 departments, including the Ministry of Commerce ("MOFCOM"), have jointly issued the Guiding Opinions on Promoting the Development of the Platform Economy via Commodity Trade Markets (the "Opinions").

 

《意见》提出，力争到2020年，培育一批发展平台经济成效较好的千亿级商品市场，推动上下游产业和内外贸融合，形成适应现代化经济体系要求的商品流通体系，更好服务供给侧结构性改革。据此，《意见》确立“构建平台生态，激发市场活力”、“加强分类引导，促进商产融合”、“发挥集聚优势，推动协同发展”等三方面任务。其中，《意见》明确，鼓励商品市场转变传统经营模式，在依法合规的前提下探索交易模式和规则创新，稳步推进平台经济发展。《意见》还指出，支持在自贸区依法合规建设国际贸易平台，创新海关监管模式，优化通关流程，促进跨境贸易便利化发展等。

The Opinions state that, it is expected to strive to create a number of commodity markets with value of hundred billion in which the development of platform economy will see positive results, facilitate the integration of upstream and downstream industries and of domestic and foreign trade, and form a commodity circulation system that fits the requirements of the modern economic system, by 2020, to better serve the supply-side structural reform. To this end, the Opinions set out three tasks which are "forming the platform ecology and vitalizing the market", "improving the category-based guidance and promoting the integration of commerce and industries" and "giving play to the advantage of clusters and pushing for coordinated development". Among others, the Opinions clearly state that, commodity markets are encouraged to shift the traditional business models and explore innovations in trading models and rules on the premise that relevant laws and regulations are observed, in order to steadily push forward the development of platform economy. Furthermore, the Opinions state that, efforts will be made to support the building of international trade platforms in free trade zones in accordance with laws and regulations, to innovate forms of customs supervision, to optimize customs clearance processes and to boost cross-border trade facilitation and development.

 

盈科评论：平台经济是利用互联网、物联网、大数据等现代信息技术，围绕集聚资源、便利交易、提升效率，构建平台产业生态，推动商品生产、流通及配套服务高效融合、创新发展的新型经济形态。近年来，发展平台经济成为商品交易市场转型升级的重要方向，也是我国流通领域深化供给侧结构性改革、推动经济高质量发展的一项重要举措。

Yingke Comments：The platform economy is a new economic form that uses modern information technology such as the Internet, Internet of Things, and big data to build resources, facilitate transactions, improve efficiency, build a platform industry ecology, and promote efficient integration, innovation, and development of commodity production, distribution, and ancillary services. In recent years, the development of platform economy has become an important direction for the transformation and upgrading of commodity trading markets, and it is also an important measure for deepening supply-side structural reforms in China's circulation sector and promoting high-quality economic development.

 

【官方政策解读 Policy Interpretation】

 

清理拖欠账款 激发民营企业创新活力

Clean up the arrears of accounts and

stimulate the innovation vitality of private enterprises

 

当前，一些民营企业、中小企业在发展中遇到一些困难。一些地方政府部门和大型企业拖欠民营企业、中小企业账款的行为，对企业的资金周转、经济效益带来了负面影响。按照党中央、国务院部署，去年11月以来，各地区、各有关部门和大型国有企业积极清理被拖欠的民营企业、中小企业账款。

At present, some private enterprises and small and medium-sized enterprises have encountered some difficulties in their development. Some local government departments and large enterprises have defaulted on the accounts of private enterprises and small and medium-sized enterprises, which have had a negative impact on the company's capital turnover and economic benefits. In accordance with the deployment of the Party Central Committee and the State Council, since November last year, all regions, relevant departments and large state-owned enterprises have actively cleaned up the arrears of private enterprises and SMEs.

 

如今，清理拖欠账款工作有何进展？存在哪些问题和困难？怎样防止出现“边清边欠”“清完又欠”现象？2月25日，在国务院新闻办公室举办的吹风会上，工业和信息化部副部长辛国斌、国务院国资委财务监管局局长邬红兵、财政部预算司副司长郝磊围绕相关问题进行了回应。

Now, what is the progress in cleaning up the arrears? What are the problems and difficulties? How to prevent the phenomenon of "clearing and owing" and "clearing and owing"? On February 25, at the briefing held by the Information Office of the State Council, Xin Guobin, Vice Minister of the Ministry of Industry and Information Technology, Wu Hongbing, Director of the Financial Supervision Bureau of the State-owned Assets Supervision and Administration Commission, and Hao Lei, Deputy Director of the Budget Department of the Ministry of Finance, responded to relevant questions.

 

清偿民营企业账款超过1600亿元

Settlement of private enterprises accounts for more than 160 billion yuan

 

“拖欠问题如果久拖不决，不仅会影响企业正常的生产经营，甚至会导致企业关闭破产、员工大量失业，影响国计民生和社会稳定。”辛国斌指出，开展清欠工作，就是要进一步激发民营企业、中小企业的创新创业活力，稳定就业和居民收入，为保障和改善民生、确保经济社会大局稳定提供重要支撑。

"If the problem of default is long-lasting, it will not only affect the normal production and operation of the enterprise, but even lead to the closure of bankruptcy and the massive unemployment of employees, affecting the national economy and people's livelihood and social stability." Xin Guobin pointed out that to carry out the debt owing work is to further stimulate private enterprises. The innovation and entrepreneurial vitality of SMEs, stable employment and residents' income provide important support for safeguarding and improving people's livelihood and ensuring the overall economic and social stability.

 

辛国斌介绍，近三个月来，在各地区、各有关部门的共同努力下，我国清欠工作取得了阶段性成效，初步掌握了分地区、分行业、分欠款类型的有关情况，为推动全面清欠工作奠定了扎实基础。全国政府部门、大型国有企业共清偿民营企业账款超过1600亿元，其中，拖欠农民工工资、民生安全工程款项得到优先清偿。

Xin Guobin said that in the past three months, with the joint efforts of various regions and relevant departments, China’s work in clearing debts has achieved initial results, and it has initially grasped the relevant situation of sub-regions, sub-sectors, and types of arrears. A comprehensive basis for clearing the debts has laid a solid foundation. The national government departments and large state-owned enterprises have paid off more than 160 billion yuan of private enterprise accounts. Among them, the arrears of wages for migrant workers and the safety projects for people's livelihood have been preferentially paid off.

 

“每年春节前农民工工资的清偿工作都是一个老大难问题，今年这项工作取得了非常积极的进展，春节前没有发生因拖欠农民工工资问题而引发的群体性事件。”辛国斌说。

"The annual payment of migrant workers' wages before the Spring Festival is a difficult problem. This year's work has made very positive progress. There were no mass incidents caused by the arrears of wages for migrant workers before the Spring Festival." Xin Guobin said.

 

邬红兵透露，对标国务院有关要求，中央企业清理拖欠民营企业、中小企业账款工作已按时完成阶段性目标任务。截至今年1月末，拖欠农民工工资的8.2亿元已全部清零；拖欠民营企业账款已清偿839亿元，清欠进度75.2%。

Wu Hongbing revealed that according to the relevant requirements of the State Council, the central enterprises to clear the arrears of private enterprises, SMEs account work has completed the phased objectives and tasks on time. As of the end of January this year, 820 million yuan of wages owed to migrant workers have all been cleared; the arrears of private enterprise accounts have been paid off 83.9 billion yuan, and the progress of debt settlement is 75.2%

 

邬红兵说，目前中央企业作为甲方，与民营企业在执行合同近700万份、金额超10万亿元，共清理出逾期欠款1116亿元，占在执行合同金额的1.1%。同时，中央企业每年发放农民工工资约2500亿元，大多数企业能够按时发放农民工工资，并按规定缴纳农民工工资保证金超过180亿元。

Wu Hongbing said that at present, the central government, as Party A, has executed nearly 7 million contracts with private enterprises and the amount exceeded 10 trillion yuan. A total of 111.6 billion yuan was overdue, accounting for 1.1% of the contract value. At the same time, the central enterprises pay about 250 billion yuan of migrant workers every year. Most enterprises can pay the wages of migrant workers on time, and pay wages of more than 18 billion yuan for migrant workers.

 

另外，郝磊表示，财政部积极制定清偿方案，完善预算措施，加强督促指导，稳妥有序地推进清欠工作。截至今年1月份，中央政府部门和财政部监管的中央企业拖欠农民工工资已经全部偿还完毕，其他欠款也都已按照要求制定了清欠方案，目前正在积极落实资金，确保按时完成清欠工作。

In addition, Hao Lei said that the Ministry of Finance has actively formulated a settlement plan, improved budgetary measures, strengthened supervision and guidance, and promoted the work of clearing debts in a safe and orderly manner. As of January this year, the central government departments and the central government supervised by the Ministry of Finance have all repaid the wages of migrant workers, and other arrears have also been formulated in accordance with the requirements. Currently, funds are being actively implemented to ensure that the debts are completed on time.

 

摸排工作量大面广，“三角债”问题突出

The workload is wide, and the problem of "triangular debt" is outstanding

 

改革开放以来，我国民营经济从小到大、从弱到强，不断发展壮大，已成为推动我国经济社会发展不可或缺的力量。当前，我国经济下行压力加大，实体经济面临的困难较多，做好清欠工作对于支持民营经济发展具有十分重要的意义。

Since the reform and opening up, China's private economy has grown from small to large, from weak to strong, and has become an indispensable force to promote China's economic and social development. At present, China's economic downward pressure is increasing, and the real economy faces more difficulties. It is of great significance to do a good job of supporting the private economy.

 

“尽管取得了积极进展，但也要看到，清欠工作是非常棘手和复杂的问题，还面临着很多困难。”辛国斌说。

"Although we have made positive progress, we must also see that clearing the debts is a very difficult and complicated issue, and it still faces many difficulties." Xin Guobin said.

 

辛国斌指出，摸排工作量大面广，短时间内全面准确掌握拖欠情况还存在一定难度，比如中央企业一家子公司反映，如果把账款梳理清楚，要核查6万份合同，而全国中央企业核查的合同有近700万份。同时，也存在对逾期账款认定分歧等问题，这些都需要花费大量人力、物力去甄别。

Xin Guobin pointed out that there is still a lot of difficulty in comprehensively and accurately grasping the arrears in a short period of time. For example, a subsidiary of a central enterprise reflects that if the accounts are clearly sorted out, 60,000 contracts should be checked. And there are nearly 7 million contracts for the national central enterprises to check. At the same time, there are also problems such as differences in the determination of overdue accounts, which require a lot of manpower and material resources to identify.

 

辛国斌表示，在清理政府拖欠账款方面，由于存在一些地方盲目铺摊子、上项目等历史遗留问题，加上有的地方财力受限，按期还款存在一定压力，需要逐步研究解决。另外，一些地方反映当前中小民营企业应收账款居高不下，上下游企业“三角债”问题突出，防范“三角债”的形成机制还有待健全和完善。

Xin Guobin said that in terms of cleaning up the government's arrears, there are some historical problems left by blind spots and projects, and because of the limitation of some local financial resources, there are certain pressures on repayment on schedule, which needs to be gradually studied and resolved. In addition, some places reflect that the current accounts receivable of small and medium-sized private enterprises remain high, and the “triangular debt” problem of upstream and downstream enterprises is prominent, so the formation mechanism for preventing “triangular debts” needs to be improved and improved.

 

“这些问题相互交织，也在一定程度上增加了解决问题的复杂性和难度，需要在今后的工作中从机制上加以完善和解决。”辛国斌说。

"These issues are intertwined, and to some extent, the complexity and difficulty of solving the problem have been increased. It is necessary to improve and solve the mechanism in the future work," said Xin Guobin.

 

建立长效机制，防止“边清边欠”“清完又欠”现象

Establish a long-term mechanism to prevent the phenomenon of "clearing and owing"

 

今后，应如何继续做好清理拖欠民营企业、中小企业账款工作？

In the future, how should we continue to clean up the accounts of private enterprises and SMEs?

 

“我们将督促指导地方和有关部门做到能偿尽偿、能清尽清，确保目标任务能够按期完成。”辛国斌表示，将继续加强督促指导，加大问责力度，建立健全长效机制，为民营经济发展营造良好环境。

"We will supervise and guide local and relevant departments to try best to clean up the accounts, and ensure that the target tasks can be completed on time." Xin Guobin said that it will continue to strengthen supervision and guidance, increase accountability, and establish a sound long-term mechanism to create a good environment for the development of the private economy.

 

在督促指导方面，要通过情况调度、审计监督等，推动地方和有关部门加快完善清偿计划；在加大问责方面，对推动清欠工作不力的地方和部门将予以通报，实施联合惩戒措施；在长效机制建设方面，要从账款的支付时限、支付责任、处罚措施等方面做出明确规定，同时加强政府工程项目的审核，要完善工程进度款支付的相关规定，防止“边清边欠”“清完又欠”等现象。

In terms of supervision and guidance, it is necessary to promote local and relevant departments to speed up the improvement of the settlement plan through situational scheduling, audit supervision, etc.; in terms of increasing accountability, local governments and departments that promote ineffective work in clearing debts will be notified and joint disciplinary measures will be implemented; In the construction of long-term mechanism, it is necessary to make clear provisions on the payment time limit, payment responsibility, and punishment measures of the accounts, and at the same time strengthen the review of government engineering projects, and improve the relevant provisions on the payment of progress payments to prevent  the phenomenon of "clearing and owing".

 

辛国斌特别强调，建立长效机制，最核心是要解决法律缺失问题，要建立法律保障制度，这是保障上下游企业、大中小企业融通发展最关键的措施。

Xin Guobin particularly emphasized that the core of establishing a long-term mechanism is to solve the problem of lack of law and to establish a legal guarantee system. This is the most crucial measure to ensure the development of upstream and downstream enterprises and large and medium-sized enterprises.

 

邬红兵表示，国务院国资委将督促所监管的央企力争在今年6月底前清偿剩余全部无分歧账款；对于有分歧、有纠纷的欠款，要积极沟通解决。同时，还将指导中央企业建立清欠长效机制，防止前清后欠。

Wu Hongbing said that the State-owned Assets Supervision and Administration Commission of the State Council will urge the central enterprises under supervision to strive to pay off all remaining non-discriminatory accounts before the end of June this year; for those who have differences and disputes, they should actively communicate and resolve them. At the same time, it will also guide the central enterprises to establish a long-term mechanism for clearing the debts and prevent them from cleaning up the former debts and then owing new debts.

 

郝磊说，财政部将继续督促中央部门和有关企业落实主体责任，加快工作进度，尽早完成清欠工作。

Hao Lei said that the Ministry of Finance will continue to urge the central departments and relevant enterprises to implement the main responsibilities, speed up the work progress, and complete the debt owing work as soon as possible.

 

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