Research On Judicial Determination Of Illegal Business Crime

The Criminal Law of the People's Republic of China,amended in 1997,decomposes the crime of speculation into an illegal business crime and abolishes the original crime of speculation.The crime of illegal business was originally created to adapt to the socialist market economy.However,it has caused a lot of waves in the criminal law field since its establishment.The reason is the blank guilt and pocketbook provisions of the crime of illegal business,which are in line with our criminal law The principle of statutory punishment for crime is contrary.This article is mainly divided into six parts.The first part is a case.Taking the case of Heilongjiang Wang and Moumou as examples,it leads to the identification of the objective constituent elements,the subjective constituent elements of the illegal business crime,and the determination of violations of state regulations.Taking the case of making and selling game plug-ins as an example,it raises the application of the bottom line clause in the crime of illegal business,the problem of the illegal business crime and other crimes competing together.The second part is the determination of the objective constituents of the crime of illegal business.The recognition of the object of protection of the crime of illegal operation is mainly divided into the theory of market order and the theory of market access.The author believes that the object of protection of the crime of illegal business should be the order of market access.The third part is the problem of determining the subjective constituent elements of the crime of illegal business.There are mainly questions such as whether it is necessary to make a profit for the purpose and illegal knowledge.The author believes that the crime of illegal business is subjective and intentional,and does not need to be for profit.Offences require the perpetrator to have an illegal understanding.The fourth part is the identification of "national regulations" in the crime of illegal business.Due to the ambiguity of the definition of "national regulations",it has continued to expand in judicial practice.The author believes that to define "national regulations" in criminal law,first,Defined strictly in accordance with Article 96 of the Criminal Law and related judicial interpretations;second,"national regulations" violated by the actor must be criminally accountable;third,local regulations and departmental regulations must not be recognized as national regulations Fourth,if there is a dispute,it shall be submitted to the Supreme People's Court step by step.The fifth part is the problem of determining the basic provisions of the crime of illegal business.The author believes that the identification of other illegal business activities must be based on relevant laws and judicial interpretations,and it needs the necessity of criminal punishment and social harm.The plot in the crime of illegal business Serious determination should be based on the amount,with reference to other factors.The sixth part is the problem of competition and cooperation in the crime of illegal business.The author believes that the principle of special law over general law should be adhered to,and the felony should be punished with a felony.