On The Limited Application Of The Crime Of Illegal Business Operation

In 1997,China enacted a new criminal law.The new criminal law deletes the crime of speculation,and adds the crime of illegal business operation.At that time,China's economy was in a critical period of transition,and the State paid great attention to all kinds of emerging economic forms.New things often bring new problems.The main purpose of adding the crime of illegal business operation to the Criminal Law of 1997 is to regulate the illegal business operation which causes serious infringement on the market order.In 1997,the Criminal Law adopted a combination of blank charges and interception clauses when formulating the crime of illegal business operation.The introduction of the crime of illegal business operation guarantees the stable development of China's economy in the transitional period.In addition,this crime can effectively solve the problem of the lag in the application of statute law caused by speculation pouring this "pocket crime".In other words,the establishment of this crime is recognized by the criminal law academia as an important symbol of the significant improvement of our legislative level.At that time,China's economy was in a transitional period,so there were many new types of disruption of market order.In judicial practice,there is an awkward situation that the extension of the crime of illegal business operation keeps expanding.In fact,the crime of illegal business has gradually slipped into the abyss of "pocket crime",andthe criminal law academia has paid more attention to the problem of alienation tendency of the crime.This article tries to find out the key of the problem by studying the expanding trend and manifestation of the crime of illegal business in two aspects of legislation and judicial application,so as to find out the corresponding solutions and limit the scope of application of the crime.The first chapter of this article gives a general presentation of the legislation of the crime of illegal business operation.According to the provisions of the Criminal Law of our country,it can be seen that the crime of illegal business operation has a high degree of generality and abstraction.According to the high generality and abstraction of the provisions of the law,it is not difficult to see that the crime of illegal business is in an important position of strict criminal law network and ensuring the stability of the criminal law.However,the highly abstract provisions of the crime in judicial practice lead to problems in application.In the second chapter,the author expounds the expansion trend of the crime of illegal business from two aspects.The single theoretical analysis is not enough to comprehensively analyze the problem.The author brings case analysis into this paper to show the expansion process of illegal business and the diversity of expansion forms through the analysis of cases.Secondly,the author deeply studies the reasons for the expansion of the crime of illegal business operation,mainly from the single angle of the crime pattern,economic reality and traditional criminal law concept.Chapter III of this article mainly reflects on the situation of the application of expansion,and points out the drawbacks of the arbitrary expansion of the crime of illegal business.The arbitrary expansion of the extension of the crime of illegal business operation runs counter to the basic principle of legality in our criminal law and contradicts the modesty of the criminal law.It contradicts the value concept contained in our market economy and has many shortcomings.The crime of illegal business operation is the most frequently amended and supplemented charge after the promulgation of the Criminal Law in 1997.At present,the scope of application of the crime of illegal business operation is very large.There are many measures to limit the scope of application of the crime of illegal business.The simplest and crudestmeasure is to abolish the basic clause of the crime of illegal business.However,such subversive measures will have a huge impact on our judicial practice and economic construction,so it is not reasonable to delete this measure.The author believes that it is still necessary to retain the basic clause of the crime of illegal business operation,but it is bound to be necessary and reasonable to restrict its use.Chapter IV of this article mainly discusses the expansion trend and manifestation of the crime of illegal business mentioned above.The author restricts the application of the crime of illegal business through three aspects,including the interpretation of "illegal state regulations",the identification of illegal acts and the identification of "serious disturbance of social order".As for the crime of illegal business operation,we should make dialectical analysis from the positive and negative roles played in protecting the development of market economy.In the current situation,we should correctly deal with the expansion trend of the crime of illegal business operation and strictly limit its scope of application.The author thinks that we should dialectically analyze the role of the crime of illegal business in promoting and hindering the development of market economy,and analyze it in the light of the current environment.In general,we should correctly view the expansion of the application of the crime of illegal business,so as to ultimately achieve the purpose of reasonably and strictly limiting its scope of application.