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Study On Application Of Limitation Of Bottom Pocket Clauses In The Crime Of Illegal Business Operation

Posted on:2020-11-19Degree:MasterType:Thesis
Country:ChinaCandidate:H F MaFull Text:PDF
GTID:2416330578966323Subject:Science of Law
Abstract/Summary:PDF Full Text Request
The crime of illegal business operation in Chinese current Criminal Law was broken down from the speculation in the old Criminal Law,so the gene of “pocket crime” inevitably comes with it.“Pocket Crime” Color of illegal business operation crime comes from the Bottom-Up Provision of Article 225(4)of the criminal law,this provision adopts the form of blank crime,the criminal legislation and the judicial explanation constantly explain in the crime of illegal operation a great deal of the operation which disturbs the market order,the “pocket” clauses that makes the crime of illegal business operation become a new“pocket' and is widely questioned and criticized.How to define and accurately apply the “pocket” clause has become a thorny problem that judicial organs often encounter.Firstly,the thesis introduces the current situation of the legislation of the crime of illegal business operation in the world and the historical origin of the crime of illegal business operation in our country,and points out the need of the objective reality to establish the provision of the crime of illegal business operation in our country,this paper points out the expansion and application of the crime of illegal business operation in reality,and thinks that the value orientation of the crime of illegal business operation includes three aspects: overcoming the limitation of statute law,conforming to the theory of social harmfulness and adapting to the development of market economy.Based the analysis of the characteristics of the first three types of the crime of illegal business operations,Combined with the other illegal business operations as prescribed in the normative judicial documents and other illegal business activities determined in the actual judicial precedents,the paper summarizes and sums up the types of other illegal business activities.The conclusion is drawn that other illegal business activities can be expressed as “engaging in business activities by unlawful means”,and should have three types of characteristics: “violating the provisions of the state” “engaging in business activities” and “having serious social harm”.“Engaging in business activities by unlawful means” includes“engaging in business activities without permission” and “illegally engaging in industries prohibited by laws and regulations” It is also a key characteristic that distinguishes the first three acts from the crime of illegal business.The thesis puts forward the challenge to the theory of criminal law of crime of illegal businessoperation.It holds that the crime of illegal business operation has three aspects: deviation from the principle of legality of crime and punishment,the tendency of heavy penalty,the nature of violating market operation.As to the dispute on whether to retain or abolish the bottom clause of the crime of illegal business operation,this article basically agrees with the affirmative statement that.In the initial stage of the socialist market economy construction,the setting of the bottom clause helps to maintain the stability of the criminal law,and helps to regulate the behavior of the market economy deviating from the norm … The third is that the illegal operation clause has its own rationality.However,reasonable restrictions should be imposed on the understanding and application of the “Bottom Clause” of the crime of illegal business operation to disrupt the order of the market in time.The thesis puts forward a series of restrictive principles to the understanding and application of the bottom clause of the crime of illegal business operation.It is not only necessary to abide by the principle of legality of crime and punishment,but also must take the premise of “violation of the provisions of the state” as the premise,and the “provisions of the state” may not be interpreted in a more extensive manner.The State Provision shall be regarded as the basis for the determination of other unlawful acts.The specific forms of other illegal business operations shall be referred to other laws and administrative regulations and shall be accompanied by criminal penalties.The explanation of the bottom clause should also insist that only the same kind of rule is contained in the explanation,and other non-legal operation must have the homogeneity with the first three acts of the crime of illegal operation and have material danger.Through-series of principles to restrict the applicable conditions help the judicial practice to accurately identify the crime of illegal operation of the bottom clause,effectively prevent the abuse of the crime of illegal operation of the bottom clause.
Keywords/Search Tags:Crime of Illegal Business Operation, Bottom-Up Clause of Crime of Illegal Business Operation, Type of Action of Illegal Business Operation, Restricted Application
PDF Full Text Request
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