Research On The Limitation Of Expansion Of The Crime Of Illegal Operation

Starting from the discussion of the concept and legislative evolution of the crime of illegal business operation,this paper,based on the comprehensive definition of the concept of the crime of illegal business operation by different scholars,holds that the definition of the crime of illegal business operation should be based on the essence of it.Illegal operation is not an arbitrary act to disturb the market order,its essential feature is to destroy the market access order of the country,so we should understand and recognize the illegal operation in the crime of illegal operation from this perspective.The crime of illegal business operation is divided from the original crime of speculation,and there are countless connections between the two crimes.The crime of speculation is a typical crime for the state to regulate economic activities in the planned economy era,while the crime of illegal business operation is an important crime for the state to regulate the market in the market economy era of our country.Although the manifestations of the two crimes are different,they are essentially the same Now the state’s intervention in economic activities is only to some extent different.The expansion of the crime of illegal business operation is mainly reflected in two different aspects: judicial interpretation and judicial trial.The expansion of the crime of illegal business operation in judicial interpretation is reflected in its increasing number,which often goes beyond the implication of the articles of the crime of illegal business operation.In judicial practice,the expansion is manifested in different types.Some of them do not grasp the premise of the crime of illegal business operation,some of them do not grasp the essence of its social harmfulness,and some of them extend the application of the clause.The negative effects of the expansion of the crime of illegal business operation are reflected in three different aspects,which are contrary to the basic principles of criminal law,damage to the credibility of the judiciary and are also damaging to the development of the market economy.The causes for the expansion of the crime can be explained from three aspects.In terms of legislation,it is because of the relative uncertainty of the criminal law provisions,which are embodied in two aspects,namely,the cover clause and the blank crime,which make the behavior type of the crime of illegal business operation vague and difficult to grasp accurately.From the judicial point of view,the judicial interpretation of ultra vires and the improper exercise of the judge’s discretion are the important reasons,both of which reflect the judicial power’s overstep towards legislative power,and also contrary to the principle of legality.From the perspective of criminal policy,"strict" criminal policy is an important reason.Strict criminal policy is not only reflected in the legislation of the crime of illegal business,but also reflected in the judicial process.Among these three reasons,the judicial reason is the main one.As for how to deal with the problem of expansion,neither the theory of approval nor thetheory of abolition can fully grasp the very essence of the expansion of the crime,so its proposition inevitably has its limitations.This paper argues that there should be reasonable restrictions on its expansion,and the thinking of restrictions can be expanded from two levels.First of all,it is necessary to clarify the relevant issues from the perspective of Criminal Law Hermeneutics,which is the premise of effectively limiting its expansion.Specifically,it is necessary to discuss three different issues,namely,the protection of legal interests of the crime of illegal business operation,the scope of the blank crime and the implication of the cover clause.Secondly,because the expansion of the crime of illegal operation is mainly manifested in the two different aspects of judicial interpretation and judicial practice,therefore,the limitation of the expansion of the crime of illegal operation should also be carried out from the two different aspects of judicial interpretation and judicial practice.