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Study On The Crime Of Illegal Business Operation

Posted on:2010-09-01Degree:DoctorType:Dissertation
Country:ChinaCandidate:D A FanFull Text:PDF
GTID:1116360272498568Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The crime of illegal business operation is very common in economic activities, and is legislated to regulate buying and selling on speculation as we all know the crime of speculation has been eliminated from the 97 criminal law. Due to its legislative blank indictments and plugging terms, it has expanded to a great extent that a all-encompassing crime had been turned into by means of constantly changing interpretation of legislation and judicial ,and also by means of constantly judicial practice citing. Therefore, the crime of illegal business operation is of significant theoretical and practical significance.The article is based on the explanation of the criminal law, thus the case analysis method is frequently used to investigate such controversial problems as the basic characters, establish boundary, problems in judicial cognizance and sentencing. Thus the ways to perfect legislation would be provided.The article is divided into 6 chapters. The first chapter is focused on the historical evolutions and definition developments of the crime of illegal business operation. Based on this logical starting point, the cause of the crime of illegal business operations is understand and recognized as the defects. An avocation was held that it is more positive to discuses how to regulate the expansion of the crime of illegal business operation than to discuss whether it is a serious behavior or not. The crime of illegal business operation is defined as the serious behavior to violate the state provisions which implement the state prohibited or restricted market order.A comprehensive understanding of the basic characteristics of the crime of illegal business operation is requested for specific constitutional elements. In this paper the object of this crime is convinced as the market management order; or business license management order if we excluded the view of legislation and judicial interpretations. The behavior of the crime of illegal business operations is diversiform, which can be divided into types of qualification-illegal, illegal-object, illegal- places and illegal-behaviors. From all the behavior patterns above, the expansion of the crime of illegal business operations is revealed. In the subjective aspect, the article thinks that the crime of illegal business operations is an intentional crime and the purpose to seek illegal benefits is necessary.The boundaries of the crime is also one of the most important issues. Four issues must be considered when we determined whether the behavior is crime or not. First the precondition of the establishment of illegal crime is that the behavior must be a violation of state regulations. The scope of"state regulations"is limited to laws and administrative regulations. As a statutory crime,"invoke laws"was interpreted to a narrower extend such as criminal law. The provision which claims that"to constitute a crime shall be held criminally accountable"does not lead to a criminal consequences. That is, the crime can only be based on criminal law, not to non-criminal regulatory even for the necessary conditions. Second, the degree of"serious cases"is decided to set up a crime. In this paper, the amount of business is discussed from theatrically and judicial perspectives. The harm is measured by the amount of business instead of by the amount of illegal income, and the same standard should be applied to both natural persons and units. Third, the connotation of"unauthorized"should distinguish the general permit and special permit, the establishment of the crime of illegal business should be limited to those cases without a special permit, engagement in business conduct without a general business registration permit should not be considered as illegal crimes. A related problem is that the range of license would effect the scope of the crime of illegal business operation's establishment——different types of permits decide the ranges of different business operations——only those who go beyond the scope of different business operations would constitute the crime of illegal operation.Chapter IV discussed some special problems of the crime of illegal business operation, such as its competing with other crimes, especially the attempt of it. From the patterns of its behavior and objects of its behavior, the crime of illegal business operation can be distinguished from the crime of production and sailing fake products, the crime of fund fraud, the crime of illegally absorbing public deposits. Some typical cases are illustrated to explain the boundaries between them. The accomplishment of the crime of illegal business operation depends on whether the behavior has completed or not, in the cases where there are serious circumstances the actor would commit an attempt crime.Sentencing is an important aspect in dealing with the crime of illegal business operation as well as the most important content in the justice process. The article focuses on some questions in the application of its sentence. First, does the same punishment standard can applied to both the unit and the natural? The article holds the point that the unfair originated from the same standard of prosecution criterion for the unit and the natural. If we consider the question from the viewpoint of victims, the same harm should lead to the same punishment, thus the inspection of subject s'characters should be ignored unless during the prosecution stage. If the same standard be put to the unit and the natural in prosecution and legal punishment application, the same standard should be put to the unit and the natural in sentencing, nor justice is impossible. Second, when the unit committed the crime of illegal business operation, the pecuniary penalty should not be put to the natural, therefore the punishment be adapted to the criminal responsibility, because in this occasion the interests of crime committing had been seeked and owned for the unit, not the single people, so it is injustice for the single people to bear more heavy responsibility than the unit. Third, in the clause of the crime of illegal business operation, "illegal income" is the sole basis for amount calculating. Thus we can not imagine how can we determine the punishment if there is no illegal income or unable to determine the amount of illegal income. So we should replace"the amount of illegal income"instead of"illegal income", or change the single standard by a parallel standard. Fourth, if the unit merge or division after a specific crime of illegal business operations, the pecuniary penalty should not be inherited by the later unit, that is, the civil law principles of debts transferring is not applicable in criminal law area. Futher research of the sentencing behavior and sentencing class in saling illegal publications and illegal publishing behaviors has been done by the author.Based on the illustration on the basic concept, crime constitution, established boundaries, judicial cognizance ,and other important issues of the crime of illegal business operations, flaws of the crime has been exposed which based on the legislation defects. Defects shows that the weak of the clarity of text representation, administrative regulations trespassing the convicting area which weakens the function of legislation, judicial power spreading without restriction on the basis of plugging clause's wide application, penal power is not modest but aggressive, lack of scientific.The reasons for defect mentioned above are various: criminal policy considerations,legislative technique's lack of scientific, economic development needs are the most important factors. Operations perfecting the crime of illegal business are not to charge or cancel the simple decomposition of the crime of illegal business operations, but to limit and re-define the scope of the crime of illegal business operations to the illegal business activities relevantly to state license. So the crux of the problem lies in not the judicial interpretation or judges'accurately grasping the basic criminal concepts, but only on the essential ideas and basic methods of legal interpretation and amendment.The"two-dimensional control of Entities and procedure, strict limit of legislation and judicial"is essential to implement the clarity and legality of criminal law, and to prevent commonly illegal business activities from being convicted as well as to prevent the crime of illegal business operations,and to show the original of illegal business operations crime. Thus, the behavior construct of the crime was retained and reconstruct the necessary indictment to limit the punishment scope in legislation; in the judicial interpretation judicial interpretation model could be referenced, and the judge-dominated judicial interpretation system and judicial custom could be established to utilize as a judicial reference. Futhermore, mechanism connected administrative law enforcement and criminal justice should be established, the more stringent requirements should be based on both entity and procedural aspects especially in case link stage, common illegal business behavior should be strictly prohibited from being condemned.
Keywords/Search Tags:the crime of illegal business operation, crime constitution, boundaries of crime establishment, judicial cognizance, sentencing, legislation
PDF Full Text Request
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