Possibility Of Pecking Phenomenon Of Illegal Business Crime And Normative Explanation

In1979Chinese criminal law stipulated the crime of play the market, in thissection will also include illegal business behavior, and social development will nolonger need to play the market continues to set the crime, it further developed a newcharges. The crime in the specific setting of crime still preserves "elastic provisionsof other seriously disrupt the market order" provisions, the larger space, there existsthe potential uncertainty. In judicial practice, the general is to limit the elastic spacethrough a series of judicial interpretation, so as to ensure the correct application ofthe criminal law, so it will enlarge the scope of the crime of illegal businessoperation, like a bottomless pockets. More with the big, legal confusion consequentalso more and more. No matter the infringer’s business is legal, or its behavior isallowed by law, no specific provisions of criminal law in the case, may be thejudicial authorities identified as the crime of illegal business operation, are subject tocriminal sanctions. Therefore, the crime of showing a "pocket" characteristic,blurring the boundaries between the administrative illegal acts and crimes, not inconformity with the value orientation of market economy in China, and lead to theabuse of power. However, the law is flexible, we must distinguish between what isadministrative law, namely the end shall be subject to administrative or criminalpunishment, must be clearly defined, to avoid the occurrence of various do things byirregular ways phenomenon. Therefore, whether in theory or in practice, how tocorrectly understand the nature of the crime of illegal business operation, a goodgrasp of the highly generalization of the crime, then a reasonable specification, inorder to avoid shake the principle of legality, these are questions worth thinkingabout. As a member of the judiciary, to better understand this complex andembarrassing situation. Therefore, pocket difficulties and specification interpretationpath the illegal business crime as his master’s thesis.The crime of illegal business operation settings while brings a series of legalproblems, but from the original intention and the status of the charges, still has quitehigh value. The rational thinking for the crime of illegal business operation "pocket"is very important. Can not be denied that the value of its existence, or will theproblem entirely attributable to legislation or judicial, cannot cancel the chargessimply. Advocate of our criminal law is the legal principle of crime and punishment,criminal law flexibility characteristics cannot be deviated from the principle, isbased on it, also should be in the range of the principle. We want to restrict all kindsof illegal business crime’s uncertainty, the normal track into the legal principle ofcrime and punishment, this is the legislators, the judiciary and the social from allwalks of life should be the subject of common concern. The author thinks that shouldfirst regulate judicial interpretation; the second is to strengthen the legislativeinterpretation, restrict the judicial interpretation in the judicial practice, strictlyadhere to the principle of legality, to prevent the abuse of judicial interpretation,beyond the legislative purpose, legal documents on the basis of reasonable limitjudicial interpretation; judicial expansion finally the reasonable limit for the crime ofillegal business operation, in order to curb the crime "pocket" trend spread, bring itback to its normal track.