Research On Price Irregularities And Crimes

Before reform and opening-up, price crimes were provided in penal codes only as the offence of speculation and profiteering, thanks to rarity of such crimes as a result of the lack of status of market mainstay on the part of businesspeople, since China practiced a highly centralized planned economic system, and government made overall arrangements for daily necessities such as clothing, food, housing and traveling. Since then, price irregularities on the part of businesspeople have gradually become prominent due to the nature of profit-driven businesspeople and imperfection of market mechanism in China in the course of continuous progression of socialist market economy. In addition, the illegitimate collection of fees by the state administrative organs shows a rising trend resulting from the rapid expansion of administrative fees, which gains a widespread attention from both the government and various circles in society. Although even before the promulgation of Price Law of the People's Republic of China in 1997 some scholars had come up with the suggestion that the crimes of illegitimate adjusting and fixing prices, and illegitimate disrupting market prices be added in penal codes of China, up to now no scholars have systematically studied price irregularities and crimes. Nor do penal codes provide a comprehensive stipulations regarding punishment of price irregularities as crimes. As such, it is very significant both in theory and practice to bring the research on price irregularities and crimes into the framework of perfecting legal system construction of China. It is equally important to make a comprehensive and systematic study in this field, in order to standardize business performance on the part of market players and promote the development of socialist market economy. Guided by Marxist dialectical materialism and in light of the actual situation of current price irregularities and crimes in China, the thesis discusses the tendency of price irregularities turning into crimes, provision of various specific crimes, the application of punishment and crime prevention on the basis of the fundamental theories in criminology and economics in order to establish a comprehensive theoretical system of price irregularities and crimes. Chapter One Price Irregularities. For the purpose of this thesis, prices shall include commodity prices, service prices and rate of fees collected by the state administrative organs. Price Irregularity is defined as conducts of citizens, legal persons or other organizations which are performed in violation of the state current price provisions in laws, rules and regulations and have resulted in damages to the society to some degrees. In accordance with different criteria, price irregularities can be classified as those practiced either by businesspeople or by the state administrative organs, those with illegal gains or without illegal gains, and those caused either by an act of commission or nonfeasance. To tell whether a conduct is legal or illegal, one must "base the judgment on facts and take laws as criteria."Moreover, he must "make facts clear, have unrebuttable evidence, accurately determine the nature of a case"and take full account of three factors, namely effective dates, retroactive force and prescription of prosecution, stipulated in laws and normative documents regarding prices. In China, price irregularities are punished chiefly by administrative means, which includes warning, fines, confiscation of illegal gains, an order to suspend operation and rectify irregularities, and revoking business licenses. However, the administrative punishment regarding prices must be imposed in strict compliance with the procedure prescribed in laws. Chapter Two To Punish Price Irregularities as Crimes. The price irregularities in China have a severe social perniciousness, which is shown in the following aspects: (1) encroaching socialist economic order and affecting social stability; (2) diversified modes in committing irregularities, including collusion; (3) resulting in grave consequences of injury; (4) being frequent and hard to rectify; (5) the violators of price irregularities usually have a special status and have subjective intentions.China has issued a series of laws, rules and regulations regarding prices, such as Price Law, Regulations on Price Administration over a period of time. Yet, the provisions imposing criminal punishment on price irregularities as stipulated in such lawsand regulations as Criminal Law and other normative criminal codes are incomprehensive, unclear or even inadequate, resulting in the fact that price irregularities cannot be penalized in terms of criminal punishment. In order to perfect the legal system regarding prices, punish the ones who have committed grave price irregularities and curb price irregularities, it is necessary to embody grave price irregularities into penal codes and penalize violators in terms of criminal punishment as a crime. Chapter Three The Establishment of Price Crime System. In Western countries, the provisions of price crimes are stipulated in various laws and can serve as reference in punishing price irregularities as crimes in China. It is, therefore, feasible and realistic to embody severe price irregularities into Price Law and Law Governing the Collection of Administrative Fees as crimes. However, in the long run, it is necessary to stipulate price crimes and their criminal liabilities in penal codes. The object to be injured by price crimes include socialist market price order in China, the legitimate rights and interests of consumers and other businesspeople as well as the administrative order in fee collection on the part of the state administrative organs and the legitimate rights and interests of the concerned persons. Objectively, price crimes shall refer to various objective factual traits injuring normal market economic order or the order in fee collection on the part of the state administrative organs necessary to constitute price crimes as is stipulated penal codes, including specifically necessary compositions and alternative compositions for constituting price crimes. The violators of price crimes include businesspeople and state administrative organs. Price crimes take the form of intentional offence and negligent offence. Price crimes can be divided differently in terms of the compositions of the offence. Three factors must be taken into account in identifying price crimes. They are: (1) the amount of illegal gains. The factor of amount plays an important role in penal codes in China, and the amount earned from crimes and the amount involved in crimes is substantively important in identifying price crimes. Both figures of value should be given consideration in order to correctly match the punishment with crimes in penalizing price irregularities as crimes. The amount of price irregularities should be calculated in accordance with the principle of separate calculation in different links and calculation interms of high price and authoritarian price. (2) time factor. Time, which is specifically provided in laws , is a factor which must be given full consideration in giving a heavier punishment to price violators. (3) "repeated offenders". Reference must be made to the legislative experience of related crimes in penalizing price irregularities as crimes. It should be clearly provided that "the offenders who practice price irregularities for more than once and do not make correction after receiving price administrative punishment shall be penalized as a crime."Chapter Four Study on Individual Crimes against Commodity Prices and Service Prices.Commodity price and service price crimes may contain eight specific crimes of manipulating market prices, dumping, price gauging, profiteering, artificially pushing up prices, price discrimination, incompliance with government-guided prices and government-fixed prices, incompliance with price intervening measures and emergency measures. This chapter analyses the compositions of various crimes and in light of their features, an analysis is also made with particular emphasis. (1) The crime of manipulating market prices is applied only to the act of abusing predominance in market or collusion in order to control market prices. Monopoly in market price is not a requisite for the crime. The target of the crime is market adjustable price; (2) In identifying dumping, an actor has subjectively the purpose of putting the other competitors out of the competition or monopolizing the market, and objectively has the conduct of selling commodities at a price lower than cost. At the same time, the amount involved in the sale of commodities shall also be considered. (3) Although the crime of price gauging is the same as dumping in terms of offence targets, violators of crimes and ultimate aims of crimes, they are different in proximate aims, subjectivity and objective features. Both domestic and foreign legislative experiences should be taken advantage of in penalizing price gauging as a crime; (4) The crime of profiteering shall only be applied to the act of gaining exorbitant profit by illegal means. Where the act of the actors constitute profiteering and other price crimes simultaneously, it shall be penalized by the heaviest crime with regard to the prescribed punishment; (5) The crime of artificially pushing up prices is identified only if businesspeople have committed price irregularities and the amount of illegal gains is relativelylarge or the circumstances are serious. It shall not be identified only on the basis of the general rise of market prices as a result of such irregularities. The crime of artificially pushing up prices is not clearly defined in laws regarding prices. To penalize serious cases of artificially pushing up prices as a crime of illegal operation in business, as is stipulated in penal codes, is gravely flawed. Therefore, a systematic legislation for criminal laws is necessary in order to penalize artificially pushing up prices as crimes. (6) To identify the crime of price discrimination , it is necessary to know whether the discrimination in price is continual or occasional, and whether it is consistent or sporadic. An occasional and isolated discrimination does not constitute the crime of price discrimination. (7) The violators of the crime of incompliance with government-guided prices and government-fixed prices shall not include those who fix commodity prices and/or service prices beyond their power. The act of fixing commodity prices and/or service prices beyond their power shall be punished as abusing power. (8) In contrast with incompliance with government-guided prices and government-fixed prices , the crime of incompliance with price intervening measures and emergency measures is the same in the targets of crimes, violators and the subjectivity of crimes; yet they are different in scale and time of occurrence of a crime. Chapter Five Study on Individual Offences against Collection of Administrative Fees.Offences against Collection of Administrative Fees include the crime of disrupting the collection order of the state administrative organs and the crime of illegal examination and approval of collection rate of the state administrative organs. This chapter analyses the compositions of the two crimes with particular emphasis and in light of their traits. (1) The violators of the crime of disrupting the collection order of the state administrative organs include the actors who collect fees by implementing the unauthorized documents. The entity, which implements the unauthorized documents providing collection of fees, is the official organ as a legal person. It shall be penalized in a criminal manner, as in terms of subjectivity the organ understands the extent of power and the state policies regarding collection of fees so that in implementing the orders of authorities at higher levels it plays a dynamic role, and in terms of objectivity the offense is socially pernicious. The acts of professional departments in approving collection rates in violationof laws are, in essence, arbitrary approval of a project. Thus, they shall be penalized in accordance with the provisions in disrupting the collection order of the state administrative organs. (2) It is quite necessary to establish the crime of illegal examination and approval of collection rate of the state administrative organs as the crime is set up in light of actual situation in the price administration in China, the gravity of the crime, and its being widespread of the offense, huge in the offense value and hard to be found in the means of offense. Chapter Six Ways of Imposing Punishment on Crimes against Prices.Crimes against prices are a kind of economic crimes, which show apparent covetousness. As a majority of crimes are committed by legal persons, property-related punishment should be the chief form of criminal penalty, to be supplemented by penalty of deprivation of freedom and penalty of disqualification. In legally-prescribed punishment, criminal fines shall be widely used, while confiscation of property is not appropriate. It is, therefore, proper to impose deprivation of freedom and/or criminal fines. The legally-stipulated punishment for price crimes shall include fixed-term imprisonment. Life imprisonment is a penalty next to capital punishment, and is not applicable in crimes against prices. The penalty of disqualification practiced now, especially deprivation of political rights, is very political and thus can hardly serve the function of punishing as a warning and education. With relevant provisions in penal codes of other countries around the world for reference, revoking business license, suspending to rectify irregularities, and suspending or revoking permits to collect fees should be used as ways of disqualification in future legislations. It is not reasonable or necessary to impose death penalty on covetous crimes, which is inconsistent with the provisions in the current penal codes in China. As such, death penalty is not applicable to crimes against prices. The circumstances for lenient punishment in penalizing crimes against prices include the situations where the offender is a minor or mental patient, or the offender prevents the consequences of the crime from occurring or lightens the consequences, or the offender performs meritorious service in investigating other crimes against prices, or the offender is coerced to commit the crime, or the offense is due to disacquaintance in profession. The...