Research On The Judicial Application Of Blank Charges For Illegal Business Operations

Article 225 of the current criminal law stipulates the crime of illegal business operation.Due to the blank nature of the crime and the existence of the disclosure clause,there are many difficulties in the application of the crime in the judicial process,and there is a trend of returning to the "crime of taking in one's mouth".Therefore,it is of great significance to correctly understand the crime of illegal operation and explore the influence of blank clauses on the judicial application of the crime of illegal operation.This paper focuses on the judicial application of the crime of illegal business.The article has three parts,a total of more than 30,000 words.The first part is the overview of the crime of illegal business.Firstly,the legislation of the crime of illegal business operation is summarized from three aspects:legislative concept,legislative evolution and legislative value orientation.Secondly,from the object of the crime,the objective aspect of the crime,the subjective aspect of the crime,the criminal elements of the crime are analyzed,in order to have a more comprehensive understanding of the crime on the basis of the clear legislative concept of the crime.Finally,it discusses the relationship between the crime and the blank charge,clarifies the external representation and internal cause of the blank charge of illegal business crime,and lays a foundation for the following study on the judicial application of the crime.The second part mainly introduces the judicial application of the blank charge of the crime of illegal business,which is the focus of this paper.In this part,three typical problems of the judicial application of the blank charge of illegal business crime are clarified: the scope of "national regulations" is not clear,the standard of "serious circumstances" is difficult to be quantified,and the expression of "other" in the provisions is unclear.In addition,two issues derived from the "national provisions" as the supplementary norms of the crime are also discussed,namely,the nature of the change of the supplementary norms and the independence of the clause attached with criminal responsibility,which are also common problems in the judicial application process.The third part is also the focus of this paper,in view of the former part of the crime of illegal business blank criminal judicial application problems,one by one toelaborate the specific solution.In view of the unclear scope stipulated by the state,it is necessary to define its scope in judicial application on the basis of the principle of legality of crime and punishment,under the guidance of the concept of modesty of criminal law,and in accordance with the theory of "second violation of law".As for the problem of "serious circumstances" that is difficult to be quantified concretely,in the process of judicial application,judicial confirmation should be made through the judgment of the degree of infringement of legal interests and the punitiveness of punishment.Meanwhile,the exercise of judges' discretion should be restricted in this process.For the problem of "other" being unclear,the "other" should be narrowed down under the rule of adhering to the same kind of interpretation.Finally,for the extended question,the author's answer is certain,the change of supplementary norms belongs to the change of law,which is applicable from the old and light principle;The article of bearing criminal responsibility is not independent,so we should insist on the independent judgment of the value of criminal law.