The Research Of The Crime Of Illegal Transations’leak Stoppage Provision

As the developing of the socialist market economy, new types of economic crimes emerge in an endless stream. Trying to punish these crimes timely, several judicial interpretations were promulgated, the leak stoppage provision of the crime of illegal transactions invoked more and more frequently. On one hand, it embodies the original intention of this legislation to overcome the limit of written law. On the other hand, it gives space for judicially-made law and abusing of power. This pocket-like feature has caused wide jurisprudential circle concern and controversy. It is of great practical significance to study how to limit the invoking of the leak stoppage provision fully recognize the basic reality of China.The main way to limit the invoking of leak stoppage provision is to make" other illegal business behaviors which disrupted the market order grievously" clear. Two questions to answer, the first one, which kinds of behaviors may invoke the provision, means what is the "other".The second one, in what circumstances must invoke the provision to punish these behaviors, means how could be "grievously".Vsing judicial interpretations promulgated by the Supreme People’s Court and several cases in juridicial practice for references, by comparing and analysing those concrete behaviors enumerated by the general provisions of the crime of illegal transactions, this paper argues that to cognize "other" should adhere to four standards:(1) profits seeking;(2) specific contents;(3) illegal;(4) grievous. Further on, on the cognizance of "grievous", this paper argues that should take the illegal business amount or volume as the main standard according to operating characteristics of different business fields, with overall consideration of other circumstances like the illegal income, causing significant losses, causing bad consequences to the society, the frequency of the same illegal business behavior in a certain period. Specially speaking, in the case of causing significant losses, direct losses may treated as a circumstance for adjudgement meanwhile the indirect losses can only be an aggravating circumstance. In the case of causing bad consequences to the society, the amount of people directly related may treated as a circumstance for adjudgement, but the sphere of influence should be given short shrift to for it mainly decided by other factors.