The Research Of Application Of Miscellaneous Provisions Of Economic Criminal Law

The number of provisions in the criminal law of our country is the most distributed in the economic criminal law.This is because market economic behavior changes rapidly,and legislation is needed to reserve space for judicial regulation of economic behavior in a timely manner.The general provisions are necessary and reasonable in the economic criminal law.The undercover clause in the economic criminal law itself has positive value that adapts to changes in the market economy.However,if the judicial application is improperly applied,the undercover clause in the economic criminal law will erode the freedom of the market economy,and it is difficult to escort the optimization of the economic structure and the transformation of growth momentum.A series of economic tasks such as the stability of the market mechanism and the vitality of micro-subjects.By combing through the cases where the general provisions of the economic criminal law apply from 2017 to 2020,it can be found that the problem of different judgments in the same case is prominent,the substantive judgment of the criminal law is lacking,the rein of the principle of clarity is broken,and the judgment and public perception are still in the process of judicial application.For this reason,it is necessary to start from the status quo of my country's judicial system and regulate the application of all-round articles in my country's economic criminal law.At the theoretical level,it helps to coordinate the relationship between criminal law and economic pre-economy laws and regulations,and maintain the unity of legal order and helps to balance the boundary between the stability and flexibility of criminal law and adhere to the principle of legally prescribed punishment;At the practical level,it helps to improve the clarity of the application of the comprehensive provisions in the economic criminal law,increase the proportion of simultaneous judgments in the same case,increase judicial credibility,and promote the sound development of my country's market economy.The full text is more than 160,000 words,except for the introduction and conclusion,it is divided into five chapters.Chapter One Theoretical Overview of the Bottom Line Clauses in Economic Criminal Law.which is related to the order of economic operation and economic interests,infringes the collective interests and reflects the personal interests of the collective interests,and stipulates that the perpetrator is criminal The general term for criminal laws and regulations of liability.Therefore,the all-inclusive clause plays a role in conviction,and the general provisions in the sentencing are not all-inclusive clauses.Corresponding to the provisions of my country's criminal law,the comprehensive clauses in the economic criminal law mainly refer to the provisions of the third chapter of my country's "Criminal Law" that have legislative blocking significance,and there are a total of 31 clauses.The limitation of the language,the limitation of rational thinking,the complexity of economic behavior,and the extension of criminal policy are the reasons for the general provisions in the economic criminal law.The concentrated expression of the principle of relative clarity,the timely regulation of new market economic behavior,the balance and coordination of stability and flexibility,and the simplification of the form of criminal legal terms are the existence value of the bottom-up clause in the economic criminal law.There are different types of all-inclusive clauses in the economic criminal law,and the classification of these types should have the significance of judicial guidance.The classification of the all-inclusive clauses in the economic criminal law according to the protection of legal benefits will help judicial officials to find the direction of the purpose of standard protection in time when facing new economic crimes,so as to judge the specific legal benefits,degree and methods of the infringement.The classification of the clarification clauses in the economic criminal law according to the number of clarifications can help the judiciary distinguish between single clarification clauses and double clarification clauses,and avoid the application of double clarification clauses from the perspective of restricting the abuse of clarification clauses.The classification of the all-in-one clauses in the economic criminal law according to the object of the investigation helps to clarify that the most controversial in practice is the investigation of the method of conduct in the economic criminal law,rather than the investigation of the subject,the object of the act,and the result of the act in the economic criminal law.Chapter Two Review of the Application of the Bottom Line Clauses in the Economic Criminal Law.Through the summarization of 7697 judicial cases and the collection,we can summarize the four major issues of the application of the comprehensive provisions in the economic criminal law.First,the problem of different judgments is prominent.In particular,the crime of contract fraud and the crime of fraud,the exemplified terms of the crime,the crime and the exemplified terms of the crime,the crime of illegal business The judicial application of these major categories of other charges is chaotic.Second,there is a lack of substantive judgments of criminal law.Through the display of three typical cases,it is explained in detail that in the process of applying the clarification clause of the economic criminal law,the judicial person has the behavior of pre-lawing violations,without adding the substantive judgment of the independence of the criminal law,and using the provisions of the clarification clause in the economic criminal law.Improper practice of criminalizing behavior.Third,a breakthrough in the principle of clarity.Adopted three cases and the Interpretation on Several Issues Concerning Manipulating Securities and Futures Markets issued by the People's Court,and the Opinions on Punishment of Illegal Crimes Obstructing the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic "The detailed description of the article shows that whether it is in case judgments or judicial interpretations,there are situations in which the economic criminal law is used to break through the limitations of the principle of clarity of the criminal law.Fourth,the judgment is separated from public perception.The three defendants and defenders claimed innocence,and the court of second instance changed the sentence to innocence.It shows that there are judicial officials who violated common sense,common sense,and common sense and included acts that should not be criminalized through the economic criminal law.the problems in the application of all-out clauses in the economic criminal law are caused by the following six reasons.First,the neglect of the purpose of protection.The lack of normative protection purpose has led to the failure of judicial officials to clarify the specific legal benefits,infringement methods,and degree of infringement,resulting in the absence of different sentences in the same case and the lack of substantive judgments of criminal law.Second,the absence of typological thinking.The lack of typological thinking has caused judicial officials to fail to interpret the clarification clauses and exemplified provisions in compliance with the same interpretation rules.It will also lead to the application of the clarification clause in the economic criminal law to break through the principle of clarity.Third,the improper connection of executions.When faced with administrative crimes such as economic crimes,judicial officials have adopted a quantitative distinction,which is difficult to provide a clear standard for “quantity”,which leads to excessive reliance on administrative regulations in the substantive judgment of criminal law.Fourth,the expansion of criminal policies.my country's criminal policy of severely cracking down on economic crimes is also one of the reasons for the expansion of the application of comprehensive provisions in the economic criminal law.Fifth,the deviation of purpose interpretation.Judicialists use the objective interpretation of the position,making some of the economic criminal law full-fledged articles a tool to combat economic violations in a specific period and maintain economic order.Sixth,the lack of supporting systems.The absence of an economic crime mechanism,inadequate reasoning in the judgment document,and incomplete case guidance system are the system reasons that the application of the comprehensive clauses in the economic criminal law causes the judgment result to be out of public perception and the problem of different judgments in the same case is prominent.Chapter Three The Applicable Position of the Bottom Line Clauses in Economic Criminal Law.From the macro level,it provides normative guidance for the application of the bottom-up clauses in the economic criminal law.First,in our country's plane-coupling pattern of crime constitution,the dispute between formal interpretation and substantive interpretation is just a slogan dispute.The dual restriction is the common direction of the formal interpretation and the substantive interpretation,and it can standardize and limit the generalization of the general provisions in the economic criminal law applicable to our country.The purpose of normative protection is the substantive part of the double restriction,and the same kind of interpretation rules are the part of the formal interpretation of the double restriction.Both are indispensable.Second,the principle in the criminal law can make up for the ambiguity of the principle of modest restraint in the criminal law in delimiting the boundary in criminal law and economic pre-law,and it has more guiding significance for the application of comprehensive provisions in economic criminal law.On the one hand,the principle of last resort in the criminal law requires restraint of criminal policies infiltrating the application comprehensive provisions at the economical law.On the other hand,the prerequisite for the principle of last resort in the criminal law to apply the comprehensive clauses in the economic criminal law is that the economic illegal nature of the behavior and exhaustion of other methods are also difficult to contain.Therefore,economic behaviors that are beneficial to the society,economic behaviors that simply violate order,economic behaviors that lack the essence of legal interest damage,and behaviors that affect the market economic order to the degree of social harm are not suitable for the general provisions of the economic criminal law.Third,the unification of legal order is one of the applicable positions of the bottom-up clause in the economic criminal law.At the external level,the unification of the legal order requires that the application of the general provisions in the economic criminal law be consistent with the provisions of other departmental laws.Legal acts in other sector laws are not necessarily economic crimes,and illegal acts in other sector laws are not necessarily economic crimes.At the internal level,the unification of the legal order requires that the application of the comprehensive provisions in the economic criminal law and the specific provisions have the consistency of three levels of infringement of legal interests,type of behavior,and necessity of punishment.Fourth,the principle of relative clarity,as the applicable position of the clarification clauses in the economic criminal law,requires that when interpreting the clarification clauses,the limitations of the specific provisions cannot be broken.At the same time,reasoning in judgment documents and case guidance can also enhance the clarification of the application of the principle of relative clarity in the economic criminal law.Chapter Four The Interpretation Path of the Bottom Line Clauses in Economic Criminal Law.From the micro level,it provides an explanation method for the application of the bottom-up clause in the economic criminal law.First,the purpose-fitting constriction should be regarded as the basis for the interpretation of the comprehensive clauses in the economic criminal law.The purpose of normative protection can be integrated into the judgment of the purpose,and the economic illegal acts that are beneficial to the society but have the compliance with the constituent elements can be excluded from the criminal circle.Second,the substantive interpretation requires that the purpose of normative protection should be used as the substantive standard applicable to the all-round provisions in the economic criminal law.Economic violations that do not materially infringe legal interests cannot apply the provisions of the economic criminal law;economic violations that do not reach the level of prohibition of infringement of legal interests in the criminal law cannot apply the provisions of the economic criminal law;economic violations that violate the same normative protection purpose Acts,the same general provisions of the Economic Criminal Law shall apply.Third,formal interpretation requires that similar interpretation rules be used as the formal standard for the general provisions in the economic criminal law.Regarding behavior type rather than behavior result as the homogeneity standard of similar interpretation rules can avoid the practice of substituting substantial consequences for formal standards,thereby clarifying the relationship between the substantive judgments for the purpose of normative protection and the restrictions of the exemplified provisions on the formal provisions.According to the above-mentioned interpretation method,the act of scrutinizing orders and speculating letters does not belong to the hidden content of the crime of illegal business operations.The obligation of zero performance should be convicted in accordance with the provisions of the offence.The fraudulent use of "Ant Huabei" shall not be subject to the crime.Chapter Five The System Guarantee of All-round Articles in Economic Criminal Law.From the meso level,it provides system guarantee for the application of the bottom-up clause in the economic criminal law.First,through the centralized judicial interpretation,the degree of abuse of the all-inclusive clause in the economic criminal law can be reduced.Limit the interpretation subject to judicial interpretation.This is because the ordinary law of the economical law are different from the ordinary law of natural crimes,and a large number of pre-economic laws and regulations need to be combined for judgment.Only judicial interpretations can integrate local cases and all economic norms.In terms of data collection,analysis and demonstration,and procedural control,judicial interpretations can strictly and cautiously determine the hidden content of the provisions.At the same time,it is necessary to avoid double bottoming in judicial interpretations.This is because the goal of judicial interpretation is to help judges clarify the norms.If the judicial interpretation continues to include the vague provision of double cover clauses,then the judicial interpretation will either be limited to the legislative provisions and lose its meaning,or violate the legislative provisions.The punishment is legally prescribed.Second,expand the number of guiding cases in the application of the economic criminal law's comprehensive provisions.At present,there are only two cases for the application of the ordinary law of the economical law,which are difficult to meet the need for clarity of application.Increasing the guiding cases for the application of the comprehensive provisions of the economic criminal law will help to improve the clarity of the comprehensive provisions in the economic criminal law and reduce the situation of different sentences in the same case.Third,change the current situation of inadequate reasoning in the application of judgment documents in the economic criminal law.By fully responding to the defense opinions and clearly elaborating the basis for the application of the law,the legal principle and reason are integrated into the reasoning of the judgment document,and the judgment and public awareness Get out of the dilemma.Fourth,improve the implement link system,improve the implement link mechanism,and promptly transfer cases that lack substantive interest infringement,cases that can be self-regulated by the market,and cases with lower levels of administrative control from judicial agencies to administrative agencies.The criminal law should be the last guarantee to the order of the market economy.However,the existence of the all-inclusive clause increases the risk of this barrier being breached.When faced with new types of economic illegal and criminal acts that consume wealth and disrupt market order,judicial officials often give priority to the criminal law and use the criminal law to prevent and punish those that are unfavorable to the development of the market economy through severe crackdowns in a timely and effective manner.However,it cannot be ignored that criminal methods are not the best choice to maintain the order of the market economy,and judicial officials should not overly rely on and exaggerate the role of criminal law in solving economic problems.In the process of applying the ordinary law of the economical law,the judiciary should try to find a balance between the flexibility of the protection of the legal interests of the economic order and the stability of the freedom of the market participants.