Study On The Applicable Conditions Of The Crime Of Illegal Business Operation's Miscellaneous Provisions

The Crime of Illegal Business Operation,which was once believed to derive from the Crime of Smuggling and Speculation,initially came into the public's view through the amendment of the Criminal Law in 1997.Its content,including both separate regulations and amendments of the Criminal Law,has been expanded for three times since the crime's establishment.The Crime of Illegal Business Operation's establishment was in the transition period from Planned Economy to Market Economy in China.Therefore,the crime had become the balance point that the country sought in the game of “decentralization to the market” and “runaway of the market”.Beside,the Miscellaneous Provisions were able to prevent all kinds of market emergencies in advance.This unique legislative methods made the Crime of Illegal Business Operation's adjustment scope more suitable against the historical background,better met the legal needs of China's economic system during the transition period,effectively overcame the legal rigidity due to legislative language limitations,and ensured the flexibility and stability of the Criminal Law while completing its perfection.Because of Miscellaneous Provisions' linguistic characteristics,the law has to entrust the task of defining the behavior types to other non-Criminal Law norms.When seeking external legal basis,judicial officers need to exclude departmental rules and local regulations from the scope of “national regulations”.However,judicial interpretations can be reasonable reference bases because of its function of “interpreting law”.When it comes to “other” illegal business operations,it is critical to make a legal and reasonable identification based on the principle of homogeneity and clarify the boundary between these behaviors and unlicensed business operation.Only in this way can the objects of this crime be better identified as the destruction of market access order.The malignant expansion of The Crime of Illegal Business Operation's Miscellaneous Provisions mainly exist at the practical realm.An “offside” performance of the excessiveinvasion into the economic field like this is a double violation of the principle of legality and the principal of compress and modesty,and it is the root cause that leads to the crime without legal basis and the abuse of penalty power.The irrational expansion of this clause is like “the Sword of Damocles” hanging over market entities,which destroys the fairness of market competition environment and violates the objective rules of economic development.It is the result of the influence of criminal law concept of “punishment for evil”and the standard values of the society's influence on judicial principles.However,it is the judicial officers' pursuit of litigation convenience that directly promotes the development of each expansion.We actively sought an effective way to restrict the application of The Crime of Illegal Business Operation's Miscellaneous Provisions,took the compliance of the Criminal Law Theory as the starting point of the measures,effectively implemented the principle of legality,accurately grasped the specific requirements of the Criminal Law's principle of modesty.Based on that,we further reduced the scope of the “national provisions”reasonably,not only excluding the application of legal norms under administrative regulations “secondary authorization”,but also limiting the malignant expansion of judicial interpretation.In terms of regulating judicial practice,it should be promoted jointly by enhancing judgement reasoning and strengthening administrative accountability.