An Empirical Study On The Application Of The Crime Of Illegal Operation

Crime of illegal business operations is a crime that is broken down by cr ime of illegal speculation and profiteering.Because of its general expression ad opted by its indictment setting,indictment has great uncertainty,at the same ti me,because of the uncertainty in the judicial practice,the judicial organs enric h behavior and content of illegal business operations by judicial interpretation,which leads many problems in the application of the crime of illegal business operations in the judicial practice,such as grime or another grime is not clear,g uilty or not guilty is not clear,the standard of sentencing is not uniform.Theref ore,it is necessary to accurately grasp and understand the application of the c rime of illegal business operations.The first part of the paper elaborates and analyzes the theory controversy of the application of crime of illegal business operations.This paper first intro duces the range of different doctrines of "regulations of the state",different d octrines of the meaning of criminal liability clauses in "state regulations",differ ent doctrines of determining the law and interests,and then the different theorie s are analyzed and summarized,and then this paper puts forward the opinion t hat the "regulations of the state" shall be limited to the law and administrative regulations,the criminal liability clause is not necessary condition to constitut e the crime of illegal business operations,he law and interests of the crime sh ould be the market access order.This paper's second part from the selected 100 causes,starts from the firs t-instance sentence of illegal business operations to analyze the standards of cri me of guilty verdict of crime of illegal business operations,these cases will b e divided into two types according to the difference of law application.The fi rst is to apply the cases of the first three sentences of article 225 of Criminal Law and puts forward that the act of accepting the bill of exchange is not th e same as act of payment and settlement business,which does not constitute t he crime of illegal business operation.Act of credit card arbitrage shall be sen tenced fourth paragraph of article 225 of Criminal Law,rather than third parag raph,which is not equivalent to the act of payment and settlement business.T he second is cases that is applicable to the fourth paragraph of article 225 of the criminal law,puts forward the solutions,such as solving illegal business be havior of pyramid selling,illegal business behavior of selling illegal publicati ons,grime or another grime is not clear in "lottery-typed" illegal business beha vior.By analyzing and sorting out the situation that is applicable to declared s entence,the third part of the paper puts forward situations that the crime of ill egal business operations is not balanced in measurement of penalty of the puni shment against freedom,and measurement of penalty is too light and the prop ortion of applicable probation is higher,the standard of illegal income is not un ified in the measurement of penalty of property penalty.The fourth part of this thesis analyzes standards of acquittal standards of this crime of the 11 cases,centered on several types of the controversial to ill egal business behavior analysis,puts forward that unlicensed behavior should n of be punished by Criminal Law,only belongs to the Criminal Illegality,while management behavior will constitute the crime of illegal business operation w ith violation of state regulations and market access order;Other behaviors that disturb the market order should be restricted to several ways of behavior,suc h as the legislative interpretation and judicial interpretation,but not arbitrarily i ncrease;Operations beyond scope is divided into the general operations beyond scope and operation beyond super license scope.General operations beyond s cope has no administrative illegality,and it will not constitute crime of illegal business operation.However,whether the operation beyond super license scop e can constitute the crime of illegal business operations needs to be judged ac cording to the specific circumstances of the case,and whether it meets the req uirements of the execution point of the crime.The fifth part,from the legislative and judicial aspects,makes some sugge stions on the improvement of the crime of illegal business operations.First of all,in terms of legislation to address the scope of national regulations,At the same time,it is necessary to clarify the standard of the penalty setting,to un ify the conviction standard of natural person and unit.Secondly,it is necessary to judge whether or not to meet the standard of the punishment of the crime and promotion of the standard of legal punishme nt,and not only judged by the amount of illegal operation.The definition of i llegal income should be determined according to the different ways of obtainin g the illegal income.