Core point of view: there is no legal basis for whether the auxiliary components involved are special equipment; Whether the auxiliary components involved should be produced and installed by special equipment manufacturers is unknown.

Facts of the case:

The legal representative of Actinide Company is the defendant Zhou Mojia. The company's business scope is garbage disposal engineering design, equipment installation and maintenance services, but it has not obtained the boiler manufacturing, installation, modification and maintenance license issued by the quality and technical supervision department.

In July, 2002, Namun Company signed a purchase and sale contract with Hongfeng Company for two domestic waste incinerators and their complete sets of equipment, with a total sales price of 654.38+0.6 million yuan. Namco is responsible for the installation, debugging and various after-sales services of equipment and systems.

After signing the contract, sodium citrate company organized technicians to design two sets of drawings of domestic waste incinerator. On September 30th of the same year, sodium citrate company signed a contract with Beijing Boiler Factory (with corresponding special equipment license qualification) to order two waste heat boilers in the above domestic waste incinerator equipment parts. Sodium citrate company submitted the boiler design drawings to Beijing Boiler Factory for approval, and was approved by Beijing Bureau of Quality and Technical Supervision and Beijing Bureau of Machinery Industry on February 2 of the same year.

Since August, 2003, Actinide sodium company hired Wang Moujia from Luoyang General Machinery Factory (without the qualification of special equipment installation license) to form an installation team to participate in the installation of grate transmission system, steel structure and other components in the name of Actinide sodium company, and hired other construction personnel to be responsible for the furnace wall construction.

After installation, the equipment broke down and disputes occurred between the two parties.

On May 29th, 2007, Naqiu Company filed a civil lawsuit with Quanzhou Intermediate People's Court on the grounds that Hongfeng Company was in arrears with the contract payment, and sentenced Hongfeng Company to pay the payment of 636 1, 3 10.8 yuan to Naqiu Company, rejecting other claims of Naqiu Company.

On 20 10 12.20, Hongfeng Company reported to shishi city Public Security Bureau that Zhou Mojia was suspected of committing a crime. Accusing Zhou Mojia of the crime of illegal business operation.

On 2011May 17, the defendant Zhou Moujia was wanted on the Internet and was arrested by the police station in Dongcheng District, Beijing.

The Special Equipment Safety Supervision Department of Fujian Provincial Bureau of Quality and Technical Supervision issued a reply, which proved that the boiler parts involved were all special equipment (boilers) supervised by the Regulations on Safety Supervision of Special Equipment. Later, a reply was issued on April 3, 20 16, which proved that the above boiler belongs to the "pressure steam boiler" in the category of "boiler" announced by the General Administration of Quality Supervision, Inspection and Quarantine, and consists of chain grate, feeding system, hopper interface, furnace body, superheater, operating platform and other components as shown in the general drawing.

The court of first instance held that:

In the process of providing a domestic waste incinerator with a cost of 6.5438+0.6 million yuan for shishi city Domestic Waste Incineration Comprehensive Treatment Plant, the defendant company, Huang Na Company, violated state regulations and hired an installation team organized by Wang Moujia to install special equipment such as chain grate and other important parts in the domestic waste incinerator for Hongfeng Company in the name of Huang Na Company, which seriously disrupted the market order and constituted illegal operation.

The appellant Zhou Mojia complained that:

When providing domestic waste incinerator and its complete sets of equipment, sodium citrate company did not install or entrust unqualified others to install special equipment without violating state regulations. The waste heat boiler of the special equipment involved was manufactured and installed by Beijing Boiler Factory, which met the application and approval procedures stipulated by the state and passed the inspection. During the whole installation process, always accept the supervision, supervision, testing and acceptance of the special equipment supervision department. Its company is an enterprise engaged in the design, installation and maintenance services of garbage disposal projects. In addition to special equipment, can be engaged in the installation of other equipment and components, not subject to pre-restrictions of laws and regulations. There is no factual and legal basis for the original judgment to determine that its behavior constitutes the crime of illegal business operation.

The examiner put forward the examination opinion: (good defense opinion)

1. The technical basis for the original judgment that sodium actinide company and appellant Zhou Mojia constituted the crime of illegal business operation is unknown. The key components such as waste heat boiler and superheater are designed and installed by Beijing Boiler Factory. The basis for the production and installation of auxiliary components such as grate pieces in this case is unknown.

2. In the Catalogue of Special Equipment revised by the General Administration of Quality Supervision, Inspection and Quarantine in 20 14, there are only three types of boilers: pressure steam boilers, pressure hot water boilers and organic heat carrier boilers, which no longer reflect boiler parts and boiler materials. According to the existing evidence, it is difficult to identify the grate involved as a part of special equipment.

3. The explanation letter issued by the Special Equipment Safety Supervision Department of Fujian Provincial Bureau of Quality and Technical Supervision for the second time holds that the boiler in this case belongs to the "pressure steam boiler" in the category of "boiler" announced by AQSIQ, and it is composed of chain grate, feeding system, hopper interface, furnace body, superheater, operation platform and other components as shown in the general drawing. This opinion is consistent with the Catalogue of Special Equipment issued by AQSIQ and the 2008 edition.

4. In the application of the law, it must be based on the premise that Naqiu Company and the appellant Zhou Mojia constitute the crime of illegal business operation, and the basis for applying the provisions of the fourth paragraph of Article 225 of the Criminal Law in this case is insufficient.

To sum up, the procuratorate believes that the fact that the original judgment found that Naqiu Company and Zhou Moujia committed the crime of illegal business operation was unclear and the evidence was insufficient.

The litigation agent entrusted by Hongfeng Company puts forward:

Evidence such as Regulations on Safety Supervision of Special Equipment, Catalogue of Special Equipment, Regulations on Safety and Technical Supervision of Boilers-TSGG0001-2012, certificates from Fujian Provincial Bureau of Quality and Technical Supervision, Beijing Boiler Factory, appraisal certificate from the Product Quality Judicial Appraisal Center of Zhejiang Special Equipment Inspection and Research Institute, work instructions of public security organs, witness testimony and so on can prove the case involved.

The judge held that there was insufficient evidence that the appellant's behavior constituted the crime of illegal business operation.

1. The right to interpret whether the whole waste incinerator, including waste heat boiler, belongs to special equipment belongs to AQSIQ. However, at present, the General Administration of Quality Supervision, Inspection and Quarantine has not explained this issue, and the technical basis for proving that the whole machine belongs to special equipment is unknown. The opinion issued by the Special Equipment Safety Supervision Department of Fujian Provincial Bureau of Quality and Technical Supervision holds that the boiler in this case belongs to the "pressure steam boiler" in the Catalogue of Special Equipment published by AQSIQ, which is inconsistent with the provisions of the Catalogue of Special Equipment of AQSIQ and the national standards of Domestic Waste Incinerator and Waste Heat Boiler in 2008. The existing evidence can only prove that only the waste heat boiler designed, manufactured and installed by Beijing Boiler Factory is a special equipment.

2. The General Administration of Quality Supervision, Inspection and Quarantine published the Catalogue of Special Equipment in June 65438+1October 65438+September 2004. In this catalogue, boilers include pressurized steam boilers, pressurized hot water boilers, organic carrier boilers, boiler parts and boiler materials, but do not directly include domestic waste incinerators or domestic waste incineration boilers. The boiler parts listed in this catalogue only include boiler head, drum, header, boiler superheater, boiler reheater, boiler economizer, etc. (The Catalogue of Special Equipment revised on October 30th, 20 14/KLOC-0 only lists pressure steam boilers, pressure hot water boilers and organic heat carrier boilers, and deletes the original boiler parts and boiler materials.

3. After the national standard for domestic waste incinerators issued by the General Administration of Quality Supervision, Inspection and Quarantine in June 5438+February 2002 replaced the industrial standard for domestic waste incinerators issued by the Ministry of Construction in 2000, the new national standard for domestic waste incinerators and waste heat boilers was issued in June 5438 +20081October, defining domestic waste incinerators as "domestic waste incineration treatment devices" and

4. In the application of law, the crime of illegal business operation refers to the act of violating state regulations, illegally operating and seriously disrupting market order. It must be engaged in the manufacture, installation and transformation of special equipment such as boilers without permission, and the crime premise must be "violation of criminal law". In the absence of evidence to prove that sodium citrate company violated the Regulations on Safety Supervision of Special Equipment, there is insufficient basis for the application of Item 4 of Article 225 of the Criminal Law in this case.

To sum up, the court believes that the fact that Huang Na Company and the appellant Zhou Mojia constituted the crime of illegal business operation in the original judgment is unclear and the evidence is insufficient. The original judgment found that the technical basis for Huang Na Company and appellant Zhou Mojia to constitute the crime of illegal business operation was unclear, and the basis for special equipment manufacturing enterprises to produce and install auxiliary parts such as fire grate pieces was unclear, so the basis for applying Item 4 of Article 225 of the Criminal Law was insufficient. The fact that the original judgment found that Huang Na Company and the appellant Zhou Mojia constituted the crime of illegal business operation was unclear.

Therefore, the appellant Zhou Mojia was acquitted.