| The crime of illegal operation evolved from the crime of speculation.In the face of a large number of economic misconduct,the crime of illegal operation gradually reduced to a new "pocket crime ",as the provisions of the crime are relatively abstract.Under the joint combined of the highest judicial office and local judicial office,one side,the scope stipulated by the state regulations in the crime of illegal operation has continuously broken through the scope of article 96 of the criminal law,and some acts that only violate the regulations of the department have been recognized as crimes of illegal business;another side,the types prescribed by the state regulations have been broken through,and actions of illegal business have been replaced as a simple combination of "illegal trading ",no longer being divided into different illegal types.Most scholars believe that the reasons for the judicial expansion of the crime of illegal operation are the blank statement of the crime and the provisions of the bottom-up clause.However,through the comprehensive investigation of 350 sub-rules of the criminal law,it is found that not all provisions of the criminal law with bottom-up clause or blank clause are expanded,and those who become miscellaneous provisions do not necessarily contain bottom-up clause or blank clause.Therefore,the blank clause and the bottom-up clause are not the reason for the expansion of the crime of illegal operation,and the reason for the expansion of the crime of illegal operation should be found from the judicial practice.In judicial practice,there are three main reasons for the expansion of the crime of illegal operation:the judicial interpretation beyond authority,the thinking of "crime by punishment" in judicial practice and the lack of the concept of legal interests of judicial practitioners.First of all,in the judicial interpretation of the crime of illegal operation,most of the interpretation beyond authority is a breakthrough in the category of "state regulation",that is,the act that violates the prohibition of the state and the operation behavior that does not violate the operation license system of state is characterized as the crime of illegal operation.The existence of a large number of ultra vires judicial interpretation makes the boundary and behavior type of illegal business crime more and more blurred.Secondly,the influence of "crime by punishment" on the crime of illegal operation lies in that the logic of "crime by punishment" is to find the crime in reverse from the conclusion of penalty punishment.It is convenient and safe for the Judge to choose the crime of illegal operation,Because ts constituent elements are abstract.For the sake of necessity and convenience of punishment,acts that do not conform to the constitutive elements of the crime of illegal operation and acts that originally constitute constitute the other specific provisions of Criminal Law,are eventually convicted of the crime of illegal operation.Third,the lack of the concept of legal interests of judicial practitioners is also the reason for the expansion of crime of illegal operation.Under the guidance of concept of order and legal interest,the academic circles position the legal interest of the crime of illegal operation as "national franchise system" or "market access order ".However,taking order as a legal interest does not reveal the true legal interest protected by the crime of illegal operation,and it is easy to identify as a crime in judicial practice that there is neither damage to legal benefit nor the risk of damage to legal benefit.In view of the reasons for the expansion of the crime of illegal operation,we should resolve the current situation of the expansion of the crime of illegal operation from the following four aspects: first,to clarify the scope and types of "state regulations" in the crime of illegal operation,to stick to the definition of "state regulations" in article 96 of the criminal law,at the same time,the types of violation of state regulations should also be limited to "unauthorized ",and the acts expressly prohibited by the state and those without a licensing system should not be included in the scope of the crime of illegal operation.Second,for ultra vires judicial interpretation,we should speed up the formulation of the Law on Interpretation of Laws,regulate the judicial interpretation of criminal law at the institutional level,and divert the ultra vires interpretation from the existing judicial interpretation documents,amending or speeding up the legislation or directly abolishing it.Third,in view of the thinking of "crime by punishment" in judicial practice,we should adhere to the three paragraphs of justice,first convicting and then sentencing,that is,judging whether the illegal act constitutes a crime or what kind of crime according to the provisions of the criminal law,and then deciding the punishment on the basis of a definite charge.Fourth,for the lack of the concept of substantive legal interests of judicial practitioners,we should reposition the legal interest of the crime of illegal business operation from the view of "legal interests of interest".Based on the view of interests,the substantial tinterests behind the national franchise system or market access order maintained by the crime of illegal operation should be "benefits of resource allocation ".But the "benefits of resource allocation " is collective benefit,compared with individual benefit,its connotation and extension are more abstract and fuzzy,it is difficult to make intuitive judgment that whether collective legal benefit is infringed or not.In a specific case,the unauthorized operation constitutes the crime of illegal operation on the premise of specific infringement of legal interests,and the "benefits of resource allocation" should be able to be completely presented as " the possible development of people" by way of describing accurately.In addition,criminal sanctions to unauthorized operations should observe the principle of subordination.Criminal measures should not be used against illegal acts if it can achieve the same effect of social governance by administrative or civil means.Under the background of the state’s "decentralization,combination of administration and management,and optimization of service ",the crime of illegal operation,as a benchmark crime of economic criminal law and even the whole criminal code,should not be passive,but should "lose weight" actively.In the process of applying the law,the judicial organ should adhere to the principle of a legally prescribed punishment for a specified crime,and only if it meets the constitutive requirements of the crime of illegal operation can it be dealt with;in any case,those business practices that do not have social harmfulness should not be treated as crimes. |
