The Normative Interpretation And Judicial Application Of The Crime Of Illegal Business Operation

The Crime of Illegal Business Operation,separated as a new type of criminal crime from speculative crimes,does help to maintain our market-oriented economic order.It is known as one of The Infinitive crimes”due to the increase of this type of crimes regulated and the legal structure where there are no relevant clauses but disclosure clauses stated in criminal laws.In recent years,there have been huge controversies over many of its judgments and settlements.The author thinks that there is realistic necessity of reviewing this crime.In this paper,the author combines typical cases,proposes normative interpretation on its constitutive elements and points out that its legal interest is the order of the market admittance,which should be well-protected.The author also clearly analyzes its nature and guiding principles,demonstrates how to make multi-level judgments in juridical practice and proposes legislative suggestions for the amendments.The aim of all this is to seek for the balance between maintaining unity and authority of criminal law and guaranteeing the development of the new economy.This paper is mainly divided into the following parts:In Chapter One,the author expounds on the historical evolution of the Crime of Illegal Business Operation and the focus of its disputes.Three controversial cases with great public attention are selected and well-analyzed and outstanding problems such as the protection of legal interests and judgment of social harmfulness,interpretation of legal text and the boundaries of administrative and criminal offenses are also presented in this chapter.The author finally asserts that normative interpretation and prudent application are needed for the Crime of Illegal Business Operation.Chapter Two focuses on the identification and analysis of the crime.Such analysis is based on its theoretical system,legal interests and legal application.The author expounds on the constitutive elements,which include the subjective intention and the objective infringement of legal interests such as the order of special market admittance.In the meanwhile,analysis of legal application and deconstruction is conducted and ambiguities on the legal application are clarified in this chapter.Chapter Three summarizes its nature and the guiding principles.The author expounds on its nature from three aspects,namely,its nature of administrative crime,its boundaries and the review of the two violations of crime.This chapter also discusses the use of criminal law principles,which are the principle of modesty and restraint,the Principle of Legality and the Principle of Compatibility of Crime,Responsibility and Penalty.Chapter Four discusses the path of its normative application and progressively elucidates its applicable legal norms from four aspects,namely,the normative interpretation of legal text and the Principle of Legality,the social harmfulness,the Principle of Compatibility of Crime,Responsibility and Penalty.Chapter Five focuses on the suggestions in legislation and judicature.The author proposes that analysis of judicial interpretation be conducted and the record and review mechanism be established.Also,the author puts forward the view that those controversial rules and regulations should be clarified and multi-level judgments should be made so as to conform to the legislative purposes and the scientificity of legal application.Besides,the boundaries between administrative violation and criminal crime need to be further clarified and so does the Linkage between the administrative and criminal law.