Study On The Application Of The Crime Of Illegal Business Fallbackprovision

The crime of illegal business crime is an elusive crime, although our criminal law and relevant judicial interpretation of the definition of its listed, but the more regulation, the elements of the crime is increasingly blurred. The reason, on the one hand is the Criminal Law Article 225(fourth) to reveal the provision itself in the presence of congenital defects in legislation, blank description of crime and elastic clause combining and right of discretion of judges in the abuse of crime gradually from expansion to variation not only violates the criminal law doctrine and with the opposite of the restraining criminal law; on the other hand, in recent years, the judicial interpretation of the supreme judicial organs have been introduced will involve multiple sectors of the economy of new types of violations clearly identified for the crime of illegal business operation, and further expansion of the crime of illegal business extension. In addition, the judicial practice of the court’s case also expanded the areas of the crime of illegal business.Of course, to reveal the provision except with defect, also has its own theoretical value, it can compensate the written law has limitations of legislative defects and increase the flexibility of application of law, for an expansion of the criminal law covers, taking into account the criminal law in the form justice and the substantive justice plays an irreplaceable role; in line with the reality of socialist market economy at the present stage.However, throughout the judicial practice of our country, crime of illegal business operation transparency provisions in its application tends to be expansion, a serious impact on the clarity of the criminal law and authority. The judiciary is not uniform, It is often seen. co contracting phenomenon.Fallback provision of the crime of illegal business application is currently the focus of controversy in the Chinese theoretical circles and practical circles, if used improperly, will violate the principle of a legally prescribed punishment for a specified crime, resulting in discretion of judges in the abuse that judges in criminal law provisions appear different differences of opinion, can not be unified referee,would be unable to achieve the law to pursue preventing judicial arbitrary and protect people’s freedom. The case in this paper is the typical case that the author encountered in practice.Countermeasures and ways of therefore, the author aims to through the writing of this article summarizes the specific problems of the crime of illegal business operation transparency provisions exist in the application of, according to the specific problems of the correct application of the illegal business crime to reveal the provision and reasonable restriction fallback provision of the crime ofillegal business scope, reveal the provision of judicial application to specification, is helpful to the judicial practice.