A Study On The Judicial Application Of The Stipulation Of Illegal Business

The crime of illegal business operation shows a trend of continuous expansion in judicial application due to the existence of high-level generality and abstract bottom-covering clauses.In recent years,with the rapid development of the market economy,especially the double-edged sword effect of "internet plus" on the economy,various new types of economic crimes emerge one after another.In order to severely punish crimes in the economic field according to law,better crack down on crimes in the economic field,and standardize the market economy environment,the judicial organs have brought more and more economic acts into the adjustment scope of the crime of illegal business operation,resulting in the unlimited enlargement of the scope of application of this crime,which violates the principle of legally prescribed punishment for a specified crime and the principle of modesty of criminal law.Starting from typical cases,this article thinks about the rationality of the existence of the crime of illegal business operation,clarifies the legal and practical problems in the judicial application of the crime of illegal business operation under the current rapid economic development,explores the strict limitation on the identification of the four core elements of the crime of illegal business operation,namely "violation of state regulations","illegal business operation act","disturbing market order" and "serious circumstances",and combines with the extraterritorial experience,in order to put forward perfect suggestions on the application of the crime of illegal business operation.In addition to the introduction and conclusion,the full text is divided into five parts,the main contents are as follows:The first part mainly introduces the case of Wang mou’s illegal business operation case and the litigation process,makes a comparative analysis of the twocompletely different judgment results of the case from guilty to innocent,and sums up the controversial focus,namely,the scope of application of the crime of illegal business operation.The second part further analyzes and demonstrates the focus of the dispute in this case,analyzing the focus of the dispute from the perspectives of legal basis,judgment basis and legal definition.The third part discusses the legal analysis of the judicial application of the "bottom-covering clause" for the crime of illegal business operation,and interprets it from the aspects of rationality,judicial application,legislative issues and interpretation approaches.It demonstrates that the "bottom-covering clause" for the crime of illegal business operation has its historical and realistic inevitability as well as its application problems in its development,and then proposes the interpretation path of "priority should be given to the application of enumerations,and the homogeneity interpretation rules should be followed when choosing the applicable generalizations instead of the enumerations,and the principle of equal application should be supplemented".The fourth part introduces the theoretical development of the "floor covering clause" in foreign countries and the enlightenment of overseas experience on the application of the "floor covering clause" in our country,that is,the experience of dealing with relevant issues by adopting guiding cases.In the fifth part,through thinking about the feasibility of the above issues,the author puts forward some suggestions to improve the application of the "crime of illegal business" provisions in line with the economic development of contemporary China,such as adhering to the principle of legality and modesty of criminal law,further clarifying the scope of application of the "crime of illegal business" provisions,establishing a case guidance mechanism and strictly restricting judges’ discretion according to law.