On The Application Limitation To The Crime Of Illegal Business Operation

In recent years,the judicial reality reflects the tendency of the crime of illegal business has evolved into the crime of mouth,and the application of this crime is gradually separated from the judicial intention due to the increasing judicial interpretation.The application of this crime judicial restrictions,should first start from the right to clarify its applicable premise "violation of state regulations".then the scientific judicial idea guidance is necessary.Moreover,the concrete application of the method needs refinement of judicial interpretation.Finally,we should establish the "legal interests protection necessity"substantial standard,so that we can reach specification and reasonable applicable effect.In judicial practice,the crime of illegal business operation "violation of state regulations" is in disorder.It is clearly pointed out that there are few judicial judgments with specific contents of the violation of state regulations,and the vast majority of cases are generally expressed as "violation of state laws and regulations".To deal with the "regulations of the state," reasonable explanation,the cognizance of "violation of state regulations" shall be limited to the scope of the "criminal law" the ninety-sixth regulation,under the State Council and local people’s congresses of administrative rules and local regulations,they should not be regarded as "the provisions of the state," and the "regulations of the state"shall have the criminal penalty,or some kind of behavior that cannot be identified as the crime of illegal business management behavior.Illegal business crime adopts the method of enumerating legislation and backpocket clauses.From the perspective of the enumeration legislation,they are all some special market access behaviors.The state implements special licensing system,so the understanding and application of the backpocket clauses should follow the concept of the same kind.To restrict the crime of illegal business,scientific judicial philosophy also need to follow the tolerance of concept,in the field of business field especially in emerging markets,in the torture people cross area,the application of out of tolerance should be paid attention to more concept,to stimulate the vitality and potential of market main body.For financial and emerging markets,it is harmful to the society in the controllable scope,the illegal business behavior of hazard urgency is not strong,if administrative means is used to regulate.The application of the restriction on the crime of illegal business operation also needs to elaborate the limitation on the judicial interpretation.Due to the existence of emergency interpretation and excessive superstition on the function of the criminal law,the judicial interpretation of this crime is unforeseeable and uncoordinated,which makes the judicial interpretation of this crime become the most judicial interpretation among all the crimes at present.The judicial interpretation of this crime expands sharply,which reflects the typical phenomenon of over-interpretation.In fact,some illegal business behaviors in the existing judicial interpretations cannot be treated as illegal business crimes,so the behaviors in these judicial interpretations should be returned to their proper charges through the liquidation of judicial interpretations.It is necessary to apply the substantial limitation standard to the crime of illegal business operation.The order of market access is the legal interest that should be protected by the crime of illegal business operation.In the judicial practice,the determination of this crime should be based on the fact that the illegal business operation infringes on the order of market access.However,the current judicial interpretation and judicial practice treat some cases like "human body organ trading" as illegal business operations,which obviously violates the original intention of this crime.The necessity of protecting legal interest under market access is the substantive criterion of this crime.