Research On The Application Of The Bottom-up Clause On The Crime Of Illegal Business Operations

The predecessor of the crime of illegal business is speculation.This is the illegal operation crime.Although its legislative intention was to break away from the "pocket crime" characteristic of speculative crime,it was still unable to completely get rid of the trend of "pocketization" in the discussion in the theoretical circle.the reason.With the rapid development and gradual perfection of China's socialist market economy,and the fact that legislation cannot meet the needs of the market economy in a timely manner,the crime of illegal operation is becoming more and more prominent in combating market economy crime.The main reason for this is the relevant provisions of Article 225,Paragraph 4 of the Criminal Law on the illegal business crime.In order to effectively combat the anomie in illegal market operations,the judiciary has promulgated various judicial interpretations related to "other illegal operations that disturb the market order",which has led to the continuous expansion of the scope of the criminal clauses and even violations of the legal principle And the criminal law modesty principle.This article first analyzes the actual basis and theoretical background of the illegal business crime clauses,explores the legislative intent of the legislator,and lays the groundwork for the following issues;second,it raises the problems in the application of illegal business crime clauses,including The scope of setting the bottom clause is not clearly defined,the judicial interpretation lacks normative and expanding,and the chaos of judicial application in specific judicial practice;then,the reason for the above problems is studied,the main reason is that the legislative setting is not perfect,the guilt setting is too broad and strong in generality,and the judges have not unified standards when using discretionary powers,etc.Finally,the path analysis to solve the above problems,from the legislative level,should first regulate the specific scope of the illegal business crime clauses and draw To clear the boundary between administrative violations and criminal violations,at the judicial level,the continuous expansion and application of the illegal business crime provisions should be strictly restricted.The application of the illegal business crime provisions must strictly follow the principles of legal punishment for crimes and the principle of humility in criminal law The relevant provisions.