Study On The Application Of The Unlawful Business Crime Base Clause

The crime of illegal business as stipulated in Article 225 of the current Criminal Law of China is a crime established in the process of the revision of the Criminal Law in 1997.In 1979,the crime of speculation in the criminal law was abolished.The evolution from the crime of speculation to the crime of illegal business reflects the progress of the criminal law in the field of punishing economic crimes.In recent years,the crime of illegal business has been used more and more in judicial decisions to regulate illegal criminal acts that violate the market economic order,and has played an important and positive role in adjusting the social economic management order and maintaining the economic development environment.The legislators use the “listed + generalized(ie,the fourth item)” to jointly regulate the way of illegal business operations,but the fourth paragraph of “other illegal business operations that seriously disrupt the market order” covers a larger scope.In the judicial practice,the judge's application of the crime has obviously expanded its momentum,and even has the suspicion of abuse.The scope of regulation of the crime has also been expanded arbitrarily.Many of the controversial business practices have been treated as crimes.Expanded,the criminal law is also modestly lost.Wang Lijun's sale of corn is a typical example.Two diametrically opposed referees reflect the arbitrariness of the judiciary in applying the clause.This article discusses the understanding and application of the illegal business crime clause in combination with Wang Lijun's illegal acquisition of corn.The writing idea of this paper is divided into four parts: The first part is the introduction of this article.This part first introduces a case,which is the famous "Inner Mongolia Wang Lijun unlicensed acquisition of corn case",pointing out the conflict between the first instance and the second instance.From the perspective of criminal law,it analyzes whether Wang Lijun's behavior complies with the three aspects applicable to the illegal business crimes,including whether it is “violation of national regulations”,whether it is “other illegal business operations that seriously disrupt market order”,and whether it belongs to “the plot”."Severe",which leads to the main problem to be studied in this paper-the standard issue of the application of illegal business crimes provisions,to prepare for the following discussion.The second part specifically analyzes the application of the expansion of the illegal business crimes at the judicial level.This section analyzes the specific manifestations of expansion from the perspective of judicial interpretation and judicial practice,including breakthroughs in the nature of crime,breakthroughs in “national regulations”,breakthroughs on essential hazard elements,and interspersed examples of judicial practice.Explain,point out the harm of the expansion of the clause,and then analyze the reasons for the expansion of the judicial level of the clause,including the breeding of the concept of “having a bad punishment”,the purpose of litigation convenience,and the concept of “light punishment and severe punishment”.On the basis of the second part,the third part discusses the necessity of restrictive application of the illegal business crime clause from different angles,including the principle of legality of crime and punishment,the modesty of criminal law and the discretion of judges.It is required to adhere to the same interpretation rules in the system interpretation.The modest suppression of criminal law focuses on the theory of secondary violation of crimes.Finally,judges should exercise discretion in discretion.The last part is the top priority of this paper.It aims to solve the problems in the application of the illegal business crimes clause,and puts forward specific suggestions and measures,including: the clear premise of "violation of national regulations","other situations" "It must be homogenous with the first three items of Article 225 of the Criminal Law,and clearly determine the "severe circumstances" standard.Returning to the law,strictly grasping the criminal elements of the crime of illegal business,trying to find a reasonable path to apply the provisions of the illegal business crimes.