Probe Into The Difficult Problems Of Crime Of Illegal Business Operation

It is an important issue in judicial practice to identify the crime of illegal business and distinguish illegal business from ordinary illegal business.This paper probes into and analyzes the difficult problems of the crime of illegal operation,which can further effectively understand the double control function of the criminal law in preventing and punishing the crime,pay attention to the intervention degree of the criminal law in the social life,and give full play to the positive normative role of the criminal law in the economy,society and the people's life.The research on the difficult problems of the crime of illegal business operation is based on the specific cases,guided by the specific problems encountered in the trial practice,the qualitative analysis of the cases involved in the illegal business act,and the three most important difficult problems,"other business acts","serious circumstances" and "state regulations" encountered in judicial practice,clear boundaries and in-depth discussion.The effective way to solve the problem is put forward so that the crime of illegal business can better implement the basic principles of legality at the legislative and judicial levels.The structure of this article is as follows:In the crime of illegal business operation,the "serious circumstances" are respectively from the point of view of concrete expression,theoretical interpretation and judicial interpretation.The Supreme Court has issued a number of judicial interpretations to standardize the scientific conviction and sentencing of illegal business crime,but in practice,judicial staff are still confused when they encounter difficult cases in the process of hearing cases.This paper suggests that the judge should strictly abide by the principle of legality,make reasonable use of discretion,standardize the cognizance of "serious circumstances",comprehensively consider the substantive illegality and other factors,and should not be limited to the amount of crime to determine the seriousness of the circumstances.Although Article 96 of the Criminal Law defines the violation of the state regulations in the crime of illegal business operation,its category is still vague.It analyzes the specific categories from three aspects of its present situation,cognizance and cases,clearly defines the legal application to this crime in judicial practice,and effectively limits the expansion of the crime.In the crime of illegal business,"other illegal business acts that seriously disrupt the market order" belong to the disclosure clause of this crime,which first analyzes the social problems and the problems encountered in judicial practice from the expression of its expansion,and then analyzes the unreasonable expansion of "other business acts" from three aspects,which leads to the violation of the principle of legality,the violation of the spirit of modesty in criminal law,and the abuse of penalty power.Therefore,the scientific restriction of the regulation category of the crime clause plays an important role in promoting the effective regulation of the market economy.By combing the management behavior in the market economy,it is proved that the illegal operation has disturbed the order of the market economy and caused great losses to the country.The existence of the bottom clause in the crime of illegal operation has a certain flexibility to the judicial trial,and plays a role in filling the legal loophole in the trial of new cases,and also brings confusion to the judicial practice.By analyzing the current situation,reasons and drawbacks of the expansion of illegal operation crime,we hope to provide effective suggestions to solve the difficult problem of illegal operation crime and provide guidance for judicial practice.