Research On The Crime Of Illegal Business Operation,Miscellaneous Provisions

Law of long-term and in-depth on the crime of illegal business operation. This research is generally divided into two stages:the interpretation of phase and comprehensive research stage.The interpretation stage is generally refers to "criminal law" promulgated in1997to2000this stage, the research results mainly has four kinds:one is the pure annotation works on1997"criminal law", mainly is the interpretation of article225th of the criminal law, basically the lack of specific analysis. Two1997"criminal law" after the enactment of the criminal law, publishing textbooks. Three is a specialized research work. Four is devoted to the study of the crime of illegal business operation of academic papers. A comprehensive study of the stage is from2001to now, at this stage, the circle of law on the crime of illegal business operation mainly has following several aspects:one is the constituent elements of the crime of illegal business operation, the content of a more in-depth study, including the object of the crime of illegal business operation and the objective aspects of the study. Two is studied on the crime of illegal business operation is a "pocket crime". Three is the value orientation of the crime of illegal business operation is studied, the rationality of setting questions, and puts forward the way to solve the problem. Four is the crime of illegal business operation and the crime of selling infringing duplicates, production, sales and shoddy products crimes, the crime of selling commodities bearing counterfeit registered trademarks, the crime of smuggling, limit or competing issues related to crime of illegal publications crimes were studied. Five are some theorists have legal effect on the crime of illegal business operation in the "business crime" is analyzed; the judicial interpretation of some commentators also from the legal system, the source of criminal law and the legal principle of crime and punishment of the crime of illegal business operation of the specific behavior of supplementary questions.①At present, the researchers on the crime of illegal business operations "in terms of more in-depth, the scholars on the basis of the problems of the crime of illegal business operation, miscellaneous provisions were studied.The introduction part first introduces the legislative history of the crime of illegal business operation and the existing problems, the two is the introduction of the crime of illegal business operation, general provisions.The first part is the theoretical controversy of the crime of illegal business operation "out" clause, the first section mainly introduces the crime of illegal business operation "out" clause is a violation of the theoretical results of the principle of legality. Few scholars hold the illegal business crime "in line with the provisions of the crime punishment legal principle point of view, the mainstream view is that the crime of illegal business operations" out "clause violates the principle of legality, but controversy exists in theory. This paper thinks, the dispute can be divided into three main points:meet said, in complete violation and eclecticism. The second section introduces the causes of the dispute, the reasons include the principle of legality, safeguard market order and Miscellaneous Provisions limiting conflict between free operation of the principle of legality; requirements stipulate the principle of legality and the pursuit of the value of the modern criminal law of different.The second part is the criminal of the crime of illegal business operation, mainly introduces the crime of illegal business operation, continuous expansion of the phenomenon in criminal justice, this expansion mainly shows in the judicial interpretation and specific cases. This enlargement is manifested in the supreme judicial organs have judicial interpretation of the "other serious illegal acts disrupting the market order", but not all of the judicial interpretation is in violation of the principle of legality. Is manifested in two specific cases, the judge at the trial application scope of the provisions of the state, led to the crime of illegal business expansion; but also in some cases, the judge by plugging effect of general provisions and judicial discretion power, arbitrary expansion of general provisions, resulting in the crime of illegal business expansion; also in some cases, be sentenced to a fine is to operate in accordance with the amount of standard or in the illegal income is standard. Sentenced to penalties to business value as the standard, is a violation of the principle of legality, shall take the illegal income as the standard shall be sentenced to a fine. The above three kinds of expansion of the phenomenon of serious violations of the principle of legality.The third part is the crime of illegal business operation, general clause of criminal and legal principle that. The first section is the recognition of the state regulations, this paper believes that the provisions of the state as defined by the1997"criminal law" in article ninety-sixth, should not be expanded interpretation, and subject to the provisions stipulated by the state and the state making the content identification. The second section is "found out" clause. This paper thinks, should be identified from four aspects:first,"out" clause in the "other" must have the administrative illegality, there is a "shall be investigated for criminal responsibility" and other statements of the subsidiary criminal law provisions in the administrative regulations. Second,"out" clause in the "other" must be "criminal law" and in1997in the preceding three paragraphs behavior is equivalent to. The first three behavior is associated with a particular permission system of the state, the relation between elements and the crime of illegal business operation and in violation of the relevant business license system of national laws and regulations, therefore "other acts in violation of the relevant regulations" must be licensed in China business behavior. Third,"out" clause in the "other" must be in economic activity is a for-profit behavior. Fourth,"out" clause in the "other" must be disrupting the market order, and should be recognized in the criminal law under the. The third section is the identification of "serious circumstances", should be identified from four aspects. First, consider first to operate based on the amount. Secondly, considering the number of illegal business behavior with the administrative punishment. Thirdly, considering the illegal management behavior can cause serious confusion in the market economic order. Fourthly, considering the purpose of illegal business behavior, motivation, time, means, object, etc..