On The Criminal Law Protection Of Private Economy

The private economy is an important part of the socialist market economy.However,the rights and interests of the private economy have not been properly protected in practice.At present,the problems in the protection of private economy can be summarized into two aspects: legislation and judicature.In legislation,we cannot ignore the the absence and offside phenomenon in protection of private economy.First of all,the protection scope of the 165th-169 th article in the criminal law does not cover the private economy;secondly,the protection of the private economy in the criminal legislation still exists the phenomenon of offside,such as the crime of false capital contribution,the crime of false report of registered capital and so on.In the judicial aspect,the insufficient protection of private economy can be summarized as two aspects: entity and procedure.The lack of protection in substantive law is mainly reflected in the conviction and punishment of some legal acts or only civil and administrative illegal acts,such as the conviction and punishment of administrative illegal acts as the crime of illegal operation,the unclear distinction between private lending and illegal absorption of public deposits,and the ambiguous distinction between fraudulent transactions and fraud.In terms of procedure,there are mainly irregularities in the judicial process.The first is that the public security organs intervene in economic disputes illegally;the second is that the application of compulsory measures is not standardized which damages the interests of private enterprises;the third is that the application of relevant systems in the trial procedure does not treat the private economy equally.In order to protect the private economy better,we should make clear the principle of protecting the private economy.In the process of protecting private economy,we should pay attention to the principles of equality,proportion and protection based on the law.We should treat the private economy and the state-owned economy equally and abandon the concept of valuing the public rather than the private.In order to protect the private economy,we should adhere to the principles of no doubt,legal punishment and leniency,and at the same time,we should implement the criminal policy of combining leniency with severity.We should follow the principle of proportion and pay attention to whether the measures are appropriate and necessary.To improve the protection of private economy,we should start from the following three aspects.First of all,we should improve the legislation and expand the scope of application of the 165th-169 th article in the criminal law in order to achieve equal protection in legislation.Secondly,in the judicial practice,we should correctly distinguish criminal and other illegal acts,and prohibit other illegal acts as crimes.In addition,we should distinguish the administrative illegal act from the criminal illegal act,and explain the limitation of some charges.To identify the crime of illegal business operation and other administrative crimes,we should combine the theory of quality differences to identify,and exclude the administrative illegal acts that do not damage the core interests from the criminal circle;for illegally absorb public deposits,we should clarify the boundary between deposits and funds,and distinguish direct financing and indirect financing,so as to make the direct financing act a crime;to distinguish fraud and swindle,we should combine the actors according to the constitution of the crime of defrauding loans and whether the bank funds cause any harm or danger.By doing this,the crime of defrauding loans should be strictly defined.Thirdly,the judicial procedure should also be regulated.It is strictly forbidden for public security organs to intervene in economic disputes and regulate the application of compulsory measures.When dealing with the cases of private economy,we should pay attention to the situation of not prosecuting and pleading guilty.At the same time,we can also introduce restorative justice to deal with appeals properly.Only in this way,can we improve supervision procedures,and realize the diversification of criminal handling methods of private economy.