Theory And Judicial Application Of Crime Of Illegal Business Operation

The crime of illegal business operation is created by decomposing the crime of speculation that was set forth in P. R. China's Criminal Law of 1979, but the collective way of description of the crime causes much uncertainty in ruling. To cope with such uncertainty in judicial practice, the judicial authorities constantly add new contents into the description of "Others" by judicial interpretation. Furthermore, the meaning of illegal "business operation" is very inclusive and may cover almost all business processes from manufacturing, transshipment and exchange to sales. The above two factors, together with constantly introduced judicial interpretations, gradually expand the crime of illegal business operation into a virtually all-inclusive crime. That is, if a certain business operation is ruled to have seriously disrupted the market order, be it in violation of requirement on business operation qualifications, business operation proper, or manner of business operation, penalty can be made as per the crime of illegal business operation in case there is no penalty in the name of any other crime can be more appropriately applied. Although the academia of criminal science has much doubt and grievances, the crime of illegal business operation has been a new "pocket crime" de facto ensuing the nullified crime of speculation. However, after the principle "nullum crimen sine lege, wulla poena sine lege" is codified, the flexibility of law must not override legal principles, and any criminal legislation or jurisdiction that runs counter to the principe "nullum crimen sine lege, wulla poena sine lege" must be avoided as much as possible. To follow up, how to correctly understand and hold to the essentials of the crime of illegal business operation and rationally re-structure the overly expansive description of the crime so as to control the overly expansion of the crime of illegal business operation and safeguard the principle "nullum crimen sine lege, wulla poena sine lege" is not only an issue that must be studied by the academia, but also an issue that cannot be bypassed in judicial practice. That is the main reason why I have chosen the issue as the subject matter of my dissertation.This dissertation starts from the principle "nullum crimen sine lege, wulla poena sine lege", presents insights into the essentials of "nullum crimen sine lege, wulla poena sine lege" and its constraints on judicial interpretation, and re-examines issues such as the essence of illegal business operation, the subjective side of illegal business operation, key tricky problems in deciding the crime of illegal business operation, limits between the crime of illegal business operation and other similar crimes, the concurrence related to the crime of illegal business operation, etc, specifically probes into the value bias in the creation and the default in the description of the crime of illegal business operation, and particularly makes a thorough and in-depth analysis of the gains and losses of the Supreme Court's judicial interpretation of the crime of illegal business operation. On the above basis, this dissertation proposes conceptual solutions for making improvements on the crime of illegal business operation with a view to providing reference for legislative improvements and judicial practice related to the crime of illegal business operation.This dissertation of about 160 thousand Chinese characters consists of seven chapters as follows:Part 1 Preamble points out the significance and necessity of taking on this subject matter.Chapter 1 introduces the historical development of the legislation concerning the crime of illegal business operation. The crime of illegal business operation is created by decomposing the crime of speculation in P. R. China's Criminal Law of 1979. Because the crime of speculation is applicable to almost everything, the boundaries very unclear and its economic basis has fundamentally changed, it is natural to be nullified the crime. In sum, mainly three fundamental factors help nullify the crime of speculation when the Criminal Law was revised:firstly, recovery of rational thoughts on criminal policies; secondly, evolution of concepts of economy and efficacy of the criminal law; and thirdly, rising of consciousness of individual's rights and coming to the forestage of diversified cultures and thoughts.Chapter 2 critically re-considers the value orientation and crime description in the legislation involving the crime of illegal business operation from the perspective of "nullum crimen sine lege, wulla poena sine lege". Description of the crime of illegal business operation takes the mode of blank legislation plus roundup provisions. Such a description is very abstract, inclusive and expansive, and reflects such a bias in value orientation that values social order over humanistic care. Three factors cause such a value bias, namely, firstly inappropriate exaggeration of the shortcomings of statute law; secondly variation of social economic life; and thirdly heavy influence of China's tradition "subordinating individual's rights and interests to the society's". Creation of the crime of illegal business operation is sheer manifestation of such a value orientation, albeit a creation running counter in all aspects to restraining excessive expansion of penalty as expressed by "nullum crimen sine lege, wulla poena sine lege" and to the conception of law for protecting rights and liberties of citizens. Therefore, the said value orientation is contrary to the spiritual essence of the principle "nullum crimen sine lege, wulla poena sine lege".Chapter 3 analyzes the object of the crime of illegal business operation. In this area, two kinds of theories exist in China's criminal law studies, namely the theories of simple object and the theories of complex object. Among theories of simple object, there exist the theory of market economy order, theory of market transaction order, theory of market administration order, theory of administration institutions, and theory of market administration activity. To me, the theory of market administration activity is rather too superficial, and theories of order and institutions are rather too hollow. I believe, definition of the object of the crime must follow the principle "nullum crimen sine lege, wulla poena sine lege" and must not break out of the specific boundaries set by the criminal law and thus run counter to the principle of "nosciture a soccis". According to the three specific provisions concerning the object of the crime of illegal business operation in Section 225 of the Criminal Law, the object of the crime is the market access rules. With the market access rules as the object, one can not only correctly understand the fundamentals of the crime of illegal business operation which separate the crime and other crimes that break the market administration institutions, but also avoid excessively expanding the application scope of the crime into a big pocket that catches everything.Chapter 4 analyzes the objective side of the crime of illegal business operation. In interpretationthe objective side, one must first correctly understand the scope of "stipulations of the state". In conjunction with interpretationof the object, "stipulations of the state" should refer to the laws and regulations stipulated by the National Congress and its Standing Committee and the State Council that are related to the market access institutions. The specific contents of "stipulations of the state" as far as the crime is concerned, I believe, may not include provisions for criminal liabilities because it is unrealistic for all laws and regulations among the "stipulations of the state" to have provisions for criminal liabilities, and that to judge whether any behavior constitute a crime, violation of "stipulations of the state" is just one of the contributing factors that must be analyzed in conjunction with other factors. The "approval" in "without approval" should refer to the administrative approval given by the competent industrial and commercial bureau of administration for specific business operation or business operator, and should not include the business operation license issued by the competent industrial and commercial bureau of administration that is for the business operators at large. "All other illegal business operations that seriously disturb the market order" should be interpreted in line with the substance, that is, be interpreted by carefully deciding if the market access institutions are violated and the interpretation should be made in a similar way as stipulated in the first three items of Section 225 of the Criminal Law.Chapter 5 briefly analyzes the subjective side of the crime of illegal business operation. The crime of illegal business operation is a crime of direct intent. Normally the illegal business operator must have the intent of committing crime, namely "making benefits or profits". As the crime of illegal business operation is a statutory crime, to constitute such a crime, the violation must reach high degree of gravity, which is mainly judged by the volume of illegal operation and profits made. When the volume of illegal operation or profit is large, the operator normally will realize the illegality of its behavior and the gravity of the violation result. Therefore, in deciding the crime, normally it does not need to find the behavior has subjectively realized the illegality of its business operation.Chapter 6 makes an in-depth probe into issues of the judicial application of the crime of illegal business operation. In the aspect of judicial application, one must firstly understand the boundaries of "scope of operation". The crime of illegal business operation cannot apply where a company or citizen only operates outside of the scope of generic approval. Instead, only those operations that are out of the scope of operation and are legally forbidden, restricted or require franchising may be targets of the crime of illegal business operation. Secondly, when differentiating behavior of the crime of illegal business operation and the illegal business operation at large, one must be sure that the behavior of the crime of illegal business operation violates the market access institutions and the gravity of violation reaches the level of crime. The level of gravity of illegal business operation is mainly decided with the volume of illegal business operation as supplemented by other criteria, such as the illegal benefits thus made and the overall business scale.In judicial application of the crime of illegal business operation, concurrence of law frequently happens, and the judicial interpretations do have some clarifications on some concurrences and application of law. In case of concurrence of law, we must follow two principles, namely principle of prohibition of dual judgment and principle of adequate judgment, to apply the correct laws and regulations. In theory, when concurrence of law happens to the crime of illegal business operation and other crimes, if the statutory penalty of a certain special law is lower than that of the crime of illegal business operation, the crime of illegal business operation will apply as per the principle "severe law over benevolent law". I believe, the principle "severe law over benevolent law" violates another principle, that is, law checks behavior only, and is completely contrary to the principle of adequate judgment. In fact, the principle "severe law over benevolent law" is just another version of the practice, that is, to substantiate a crime with the criminal law, and therefore violates the basic logic of judicial work.The concept of illegal business operation is very inclusive. All business operations illegal conducted that violate laws and regulations are all illegal in nature, which makes it difficult to decide the crime of illegal business operation. To decide the crime, one must correctly understand the essence of the crime, that is, violation of the market access institutions. What is more, one must also understand all other crimes that severely disturb the social-economic order, and carefully examine the manner of behavior, the object of violation, etc, to find the boundary that separates the crime of illegal business operation from other similar crimes. If the Criminal Law has stipulated a separate crime for a certain illegal business operation behavior, that crime instead of the crime of illegal business operation shall apply.Chapter 7 identifies some problems existing in legislation, judicial interpretation and judicial application of the crime of illegal business operation, and suggests some solutions in the area of legislation. The crime of illegal business operation is the most frequently revised and disputed crime in the currently valid Criminal Law. Ever since the creation of the crime of illegal business operation, the legislature and judicature have been constantly making interpretations for all kinds of issues. The academia also debates fiercely over the necessity of keeping the crime. The cons criticize that the crime is virtually a pocket crime that must be nullified as swiftly as possible, while the pros believe the crime is not a virtual crime and necessity does exist for keeping the crime in place. It must be acknowledged that, after so much interpretation, the scope of application of the crime of illegal business operation has been gradually expanded, the boundary blurred, and the crime has been made into a de facto pocket crime. But acknowledgement that the crime is a pocket crime is not equal to necessarily advocating nullification. Since blanket legislation is unavoidable in the area of economic law legislation and if the voluminous administrative and economic laws and regulations are all put into the penalty code, then the code will naturally be made an encyclopedia-like scripture. Still, from the perspective of creating a full web of market economic crimes, it is necessary to keep the crime of illegal business operation to safeguard the market access institutions. But on the other hand, the excessive expansion of the crime of illegal business operation is becoming more and more obvious. The key to the above dilemma is to restructure the description of the crime of illegal business operation. That is, firstly, cancel the roundup provisions in the crime description and adequately limit the scope of the blanket, and secondly, properly decompose and reclassify the illegal business operations that are judicially interpreted to be taken as the crime of illegal business operations.