Research On The Judicial Application Of The Crime Of Illegally Operating The Same Business

The crime of illegal operation of the same kind of business is a new crime added to the Criminal Law of China in 1997.At the beginning of the establishment of the crime,there was a controversy between Guilt and innocence.Scholars who advocate decriminalization believe that "God belongs to God,Caesar belongs to Caesar",and other departmental laws can regulate acts without using the sharp edge of criminal law.Only when the law of other departments is powerless,can we choose the most helpless way of criminal law regulation.However,with the finalization of the crime of illegally operating the same kind of business,the academic research on this crime has gone astray.Whether it expands the scope of application of the subject of illegal business,or unilaterally determines the scope of "operation" and "similar business" in form or substance,it expands the application of the crime of illegal business invisibly.Professor Zhang Mingkai said: "As an interpreter,the heart should always be full of justice,the pursuit of the most appropriate and reasonable interpretation conclusions." Everyone has different understanding of justice.If we have to say justice,then the application of restriction to the crime of illegal business operation of the same kind may be my justice at the moment.It bears the worry about the expansion of the crime of illegally operating the same kind of business.Combining with the actual cases,this paper discusses the crime of illegally operating the same kind of business from the following six parts.The first part is about the identification of the protection of legal interests of the crime of illegally operating the same kind of business.This part mainly discusses the legal interests to be protected by the crime of illegally operating the same kind of business.There are four doctrines in the legal interest academia concerning the protection of the crime of illegally operating the same kind of business: the theory of the order of corporate management,the theory of the order of corporate management and the honesty of the directors and managers of state-owned enterprises,the theory of the order of corporate management and the interests of state-owned enterprises,the theory of the order of corporate management and the theory of national interests.On the basis of the analysis of the basis of the four theories and their advantages and disadvantages,it is considered that the theory of company management order and national interests is thebest choice.The first part is the identification of the subject of the crime of illegally operating the same kind of business.From the perspective of hermeneutics,scholars believe that the subject of the crime of illegal business operation of the same kind should be expanded.The main body of the crime is to include the factory director,mining director,president,vice-chairman,general director,project manager,business manager,supervisor,shareholder and so on,all of which may constitute the crime of illegally operating the same kind of business.After analysis,it is considered that it is necessary to expand the interpretation of the constituent elements of the crime of illegal operation of the same kind of business in the process of judicial cognizance,but the boundaries of the expansion of interpretation should be within the general possibility of national prediction.In the absence of any change in the legal provisions,the unnecessary expansion of the subject scope of the crime of illegal operation of the same kind of business in the process of judicial cognizance is to break through the analogical interpretation of the legality of crime and law.The second is the identification of "operation" in the crime of illegally operating the same kind of business.The academic circle of "operation" in the illegal operation of similar businesses is generally equivalent to the connotation of economics.Business operation must have the following conditions: first,the main body of business activities must be registered legally.Second,although it has not been legally registered,its business activities have the characteristics of long-term,large-scale and transaction.In this part,it is mainly considered that "business" in the crime of illegal business operation of the same kind needs to be judged in substance according to the protection legal interests of this crime.The third part is the identification of "similar business" in the crime of illegal operation of similar business.The academic circles mainly define the scope of "similar business" from two aspects of form and substance.Based on the analysis of the advantages and disadvantages of the formal and substantive standards,this part holds that the scope of "similar business" in the crime of illegal operation of the same kind of business should be combined with the formal and substantive standards,and should be determined on the basis of the laws,regulations and policies of business administrationand the legal interests of the crime of illegal operation of the same kind of business.The fourth part is about the identification of "illegal interests" in the crime of illegal operation of the same kind of business.There are four doctrines in the academic circle about the identification of "illegal interests" in the crime of illegally operating the same kind of business,namely,the theory of profit-making of concurrent enterprises,the theory of personal income,the theory of combination and the theory of damage to working enterprises.On the basis of the analysis of the four theories and their advantages and disadvantages,it is believed that all the protection of criminal law is the damage to society caused by the perpetrator rather than the profit of the perpetrator.Therefore,the author believes that the damage of incumbent enterprises is the best choice.The fifth part is about the boundary between the crime of illegally operating the same kind of business and the crime of corruption.This part mainly discusses the connection and difference between the crime of illegal operation of the same kind of business and the crime of corruption.On the basis of discussing the relationship between the crime of illegal operation of the same kind of business and the crime of corruption,this part distinguishes the two from three aspects: the standard of legal interests,the standard of the elements of conduct and the standard of the elements of results.