Crime Of Illegal Operation

Since the birth of the crime of illegal business operation,there have been many disputes and problems in its application.The predecessor of this crime is the crime of speculation and profiteering in Article 115 of criminal law of 1979.In legislation,because the provisions on the constitution of crime are relatively general,the boundaries are not clear,resulting in the randomness of execution,so the crime of illegal operation is added in Section VIII,Chapter III of the special provisions of criminal law of 1997,so as to replace the crime of speculation and profiteering and avoid the occurrence of randomness of execution.But with the disappearance of ideal state in legislation,not only the generality of legislation has not been eliminated,but also the judicial problems have not been reduced.The crime of illegal business operation has blank pleadings,elements of crime amount and clauses of covering the bottom,which almost collects all the legislative ways that are contrary to the clarity of criminal law.Except for the reasons of legislation itself,the scope of application of the crime of illegal business operation has been expanded.As a statutory offense,the change of the pre law also provides the soil for the expansion of the application of the crime of illegal business operation.The punishment scope of the crime will bring great uncertainty with the change of the pre law.This leads to the problem of reference to the norms of blank counts in the crime of illegal business operation.Whether there is no definite supplementary norms or the uncertainty of supplementary norms,it will bring problems to the conviction of the crime of illegal business operation.Therefore,this paper starts with the study of the theory of statutory offense in China’s criminal law,combined with the difficult cases in judicial practice,with reference to the relevant provisions of foreign countries,systematically analyzes the defects in the judicial application of the crime of illegal business operation in China,and puts forward its own suggestions accordingly.The full text is mainly composed of three parts,which are the introduction,the main body and the conclusion.The main body is elaborated from the following four aspects:The first chapter mainly starts from the typical cases,through the analysis of the controversial points of the cases and puts forward their own opinions.The second chapter starts with the theory of criminal law of the statutory offense,and analyzes the reason why the crime of illegal business operation is increasingly pocketed,that is,the nature of the crime is to infringe or threaten the legal interest,while the legaloffense is inherently deficient in the infringement of the legal interest,which leads to the failure to play the role of limiting the legal interest to the statutory offense,and then causes the pocketing phenomenon of the statutory offense to become increasingly serious,and points out one of the pocketing of the crime of illegal business operation The main reason lies in the uncertainty of administrative prepositive law.The third chapter analyzes the arbitrariness in the application of the crime of illegal business by interpreting the typical cases,and more importantly,the administrative preposition law has a significant impact on the judgment of the crime of illegal business.The change of administrative law directly causes the application of the crime of illegal business operation to be in an unstable state,which has a trend of breaking through the legal principle of crime.The crime of illegal business operation will change with the change of political law,but this is not caused by the legislative problem of the crime of illegal business operation,but because of the deviation of the criminal law interpretation of the crime of illegal business operation in judicial practice.We should avoid the arbitrariness of the application of the crime of illegal operation.According to the above problems,the fourth chapter puts forward appropriate suggestions for the application of the crime of illegal business operation: make a substantive interpretation of the provisions of the crime of illegal business operation,the criminal illegality of the crime of illegal business operation should be judged independently,and how to invoke the norms.