Research On The Decriminalization Of Crime Of Illegal Business Operation From The Perspective Of Civil Law

With the rapid development of the economy in China and the normalizing requirement of the socialist market economy,the Fourth Plenary Session of the Eighteenth CPC Central Committee have focus on the socialist market economy is law-based economy.It means that the market economy has developing on the rule of law.The market economy is consistent with the rule of law in nature and connotation.The law created concerns the relationship of commodity market,meanwhile the rule of law is the significant method for taking precautions against and reducing market failings.The rule of law is a necessary requirement and inevitable condition for the market economy development.Innovating on the rule of law may help stimulate market players vitality,standardize market order,offset market failures.In China,criminal law is dominant and it played a big role in the basic structure of traditional legal system.Protection of rights is overly dependent on criminal law,nevertheless,it is difficult to carry a heavier burden in reality.With the rapid development of society,the notion of using multi-method,such as civil adjudgement,administrative disposal,criminal sanction and so on,against crime become accepted gradually in common.And this concept is reflected in legislation and judiciary.In especially,the idea of preferentially using civil adjudgement become more popular.The crime of illegal business operation is one of the important and controversial accusation to the economical crime.In China,it is characteristic of judiciary to prefer criminalization rather than decriminalization.The criminal law play an important role to the crime,even then,however,this accusation will become a pocket crime totally.This characteristic not only does not accord with the restrictive principle of criminal law,but also damages to the authority and inhibits economic growth.The civil law supervise civil behavior and commercial behavior.It is universality and operability uniquely.Generally speaking,the civil law guides kinds of behaviors in the socialist economy market,furthermore,it help the socialist market economy developing steadily.This thesis use the data of judicial application and representative cases as entry points to summarize the legislation and judiciary of the crime of illegal business operation,and then,to expound theories which including causes of decriminalization of the crime of illegal business operation,the type of causes of decriminalization and the meaning of causes of decriminalization.The thesis focus on the significance of the crime of illegal business operation for the socialist market economy.At the same time,this article focus on the characteristic and superiority of civil law,such as the autonomy of will and the freedom of trade.The conclusion is that we should make the value judgment and analyze the problems by types at first,and then to deal with the problem in the economic field.Through analyze the judiciary and the academic theory,we can classify behaviors of the crime of illegal business operation.Firstly,the business operation can be split into legal operation and illegal business operation.The illegal business operation in serious cases was stipulated in the criminal law,and the legal operation was stipulated in the civil law.Secondly,the illegal business operation in serious can be split into the operation without necessary permits and the operation of beyond the business scope.Thirdly,the operation of beyond the business scope can split into the operation of beyond the business amplitude scope and the operation of beyond the business type scope.The criminal law can punish the operation without necessary permits and the operation of beyond the business type scope.The civil law can adjust the operation of beyond the business amplitude scope.In China,it is characteristic of the economical crime to prefer criminalization rather than decriminalization.On the one hand,we should continue to punish the crime in the market economy,on the other hand,we should focus on the decriminalization of the economical crime.Especially,we should better use the method and idea of civil law to deal with the problem.Using kinds of method flexibly will bring more advantages to the socialist market economy.