Research On The Problems And Countermeasures In The Application Of Miscellaneous Provisions In The Crime Of Illegal Business Operation

In recent years,the crime of illegal business operations has shown a trend of continuous expansion.The reasons are that,on the one hand,the forth item of Article 225 of the Criminal Law has inherent congenital legislative defects,that is to say,the combination of blank crimes and flexible clauses makes the application of illegal business crimes operations larger than the general criminal law.On the other hand,with the gradual promulgation of the judicial interpretation of the highest judicial organ,the new types of illegal activities involving multiple economic fields have been clearly identified as illegal business operations,and the scope of application of the illegal business crimes clause has been further expanded.The application of the sin of illegal business operations is the focus of controversy in the Chinese theoretical community and judicial practice.If the citation of transparency provisions is not appropriate,it will inevitably violate the legal principle of crime and punishment and the modesty of criminal law,which resulting in the abuse of judges' discretion,hindering the normal operation of the market economic order,and is not conducive to the realization of judicial prevention purposes.This article starts from “Wang Lijun bought corn without license ”,and analyzes and considers the application of the illegal business crime clause.There are two main problems in the application of illegal business crimes operations.The first problem is that there is no clear boundary between the terms of the slogan and it is infinitely expanded in the application of justice.First of all,the interpretation of "related state regulations" is vague,and the theoretical circles have different understandings about it,and their identification in judicial practice is not the same.Secondly,the identification of "other illegal business practices" is too generalized.The criminal clauses include many illegal acts that do not require criminal law or should not be included in the scope of illegal business operations,which makes the crime suspected of "pocket crime." Thirdly,the judgment criteria of the "severity of the plot" of the crime are different.In practice,the judge's discretion is too large.The second problem is the unreasonable expansion of judicial interpretation.Some judicial interpretations control the type of illegal business operations in accordance with the criminal law and have the suspicion of abusing judicial interpretation.The unreasonable expansion of the application of the pocket clause of illegal business crimes operations violates the legal principle of crime and punishment and the principle of modesty of criminal law.In order to prevent the excessive expansion of the application of illegal business crimes,this paper gives the following suggestions.Firstly,adhering to the legal principle of crime and punishment and the modesty of criminal law.The second is to regulate the judicial application of the terms of the pocket.It is necessary to strictly define the scope of the "national regulations",clarifythe illegal business practices that seriously disrupt the market economic order,and standardize the extent of serious circumstances.The third is to reasonably limit the scope of application of the illegal business.It is necessary to strictly limit judicial interpretation,correctly exercise the discretion of judges,and avoid the abuse of illegal business in practice.It makes the value orientation of illegal business crimes operations consistent with the requirements of China's increasingly mature socialist market economy so as to escort of improvement and provide a sound legal basis for the economic development of the socialist market in China.