On The Rational Use Of Illegal Business Fallback Provision

The crime of illegal business operation has been highly controversial either in the theoretical field or academic circle since publication in 1997.In terms of the legislation,the blank description of crime legislation technology is applied in the main provisions of the crime of illegal business operations and three key components which is fourth under the crime as the fallback provisions are listed specifically.The judicial organs issued more than ten judicial interpretations during a short period of time to complement the fallback content,meanwhile,a large number of fallback provisions that are regarded as total widget are quoted in judicial practice.The scope of the illegal business operation has been expanding and become a pocket crime in the economic crime because of the legislation and jurisdiction.In recent years,the trend of the crime of illegal business expansion has aroused wide attention and discussion in the academic circle and the judicial field.This article is intended to analyze the reason,manifestation mode and consequence of the conflict between crime of illegal business operation of miscellaneous provisions and the principle of legality on the research of the judicial decision,thereby limiting interpretation and application of miscellaneous provisions to a certain extent and making the judicial organ reasonably apply terms of the crime of illegal business.This paper is mainly divided into the following four parts:Part I: The current situation of the crime of illegal business operation.In this part,the legislation of the crime of illegal business operation and the judicial operation will be mainly introduced.The blank description of crime and legislative technique of miscellaneous provisions and the use of some fuzzy words will be referred to in the part of legislation of the crime of illegal business operation,such as "violate state regulations" and“other serious”etc.that can not specificly express words’ meaning are introduced in this paper.Part II: The performance of the conflict between the legislation and the principle of legality.First the basic theory of the principle of a legally is introduced and the basic theory includes the basic content of the principle of a legality prescribed punishment for aspecified crime origin and essential side and formal side,which is followed by the the conflict between analysis of blank description of crime,miscellaneous provisions and substantial side of principle of legality.Part III: The result of the conflict between the judicial principle and the principle of legality.The legislative technical problem leads to the back side conflict between fallback provisions of crimes and the applicable legal principles.These conflicts are that judicial organs ignore the violation of the relevant provisions of the state when explaining the miscellaneous provisions,double application of fallback provisions makes it not clear and expansion of interpretation is beyond the national forecast possibilities.The court constantly expands the scope of miscellaneous provisions in judging case about the crime of illegal business operation and the boundary between crime and non crime are not clear.Part IV: Both the legislation and judiciary applies.The technical problems in the legislation leads to the expansion and confusion of the application of justice,so the author hopes to limit the application of this crime through legislation and judiciary.The scope of the state provisions shall be clear in legislation and limit such crime through appropriate amendments,such as the addition of administrative penalties in advance of the provisions of the applicable restrictions on the crime.In terms of justice,judicial organs shall strictly control the legal interests of the crime,adhere to the principles of the same kind of explanation and establish judicial interpretation mechanism in judicial interpretation.The court shall fully discusses during the reasoning process,try to control and reduce the application of miscellaneous provisions and control the "pocket crime " trend in a trial.