Study On The Preventing Clause Of Crime Of Illegal Business Operation

There always have been disputes and ambiguities on the preventingclause of crime of illegal business operation ever since it was added tocriminal law. There are two main reasons that this clause is graduallybecoming a new pocket crime as it is widely over applied in practice.First, the preventing clause adopted the no accusation legislation form,with highly recapitulatory terms, and its application subject to relatedadministrative regulations, as a typical statutory offense. Secondly,legislation and judiciary have made numerous amendments andinterpretations, including not only the9interpretations after1997, whichare abnormally amplified, but also the practical cases which did not obeythe rule of stare decisis. Therefore, the preventing clause should bereorganized in accordance with the intent of legislation, the character of the clause, and following nullum crimen sine lege and the principle ofcaution of penalty. On one hand, the criteria should be accurately andprecisely set up with restrictive attributes; on the other hand, theinterpretation and application should be within the original legislativeintent. Only in this way shall the trend that the preventing clausebecoming a pocket crime be throttlehold.