A Study On The Restriction Of The Crime Of Illegal Business Operation

As a decomposition crime of the crime of speculation,in the nearly 20 years of judicial application,the scope of the crime of illegal operation have continued to expand,showing a trend of "pocket crime." This expansion disregards the legal system and the legislative purpose,which not only violates the principle of legality,but is also a constant invasion of the boundary of national right.In recent years,cases of unjust,false,and wrongdoing by private enterprises have been reinstated in the country,which reflects the values and policies that protect economic freedom with legal order rather than hinder innovation and progress.Therefore,it is imperative to restrict the expansion of the crime of illegal operation and maintain the predictability of the behavior of market economy participants.The core problem of this article is how to limit the application of the crime of illegal operation.By strictly defining the preemptive boundary and the objective scope of the crime of illegal operation,to determine the scope of the types of behavior in the crime of illegal operation' proper state.To seek a new way out of guilty for this crime through the theory of illegality cognition in order to achieve the balance between order value and economic value.The first chapter of this article is divided into three parts.The first part introduces the background of the crime of illegal operation becoming "pocket crime".It first introduces the background of the crime of speculation and the birth of the crime of illegal operation,and then introduces the current status of the expansion of the crime of illegal operation,then briefly introduces the reasons for its expansion.The second part expounds the different perspectives of the expansion of the scope of the crime of illegal operation in academic circles at first.Then it introduces the current economic development and policy background of our country,expounds the views supported by this article.The third part leads to the core issue discussed in this article,namely,the expansion of the application of the crime of illegal operation mainly has three problems to be solved.First,the understanding of the scope of the pre-laws of the crime of illegal operation is not standardized and unified,and judicial practice tends to expand the understanding of the scope of the pre-laws.The second is that the types of conduct regulated by this crime have mixed logical classification standards,some normative documents do not have the effect of specifying the behavior of this crime,and the unreasonable expansion of the application of the pocket clause.The third is that the crime of illegal operation lacks justification.The second chapter first introduces the chaotic phenomenon that the scope of the preemptive law of the crime of illegal operation has been expanded in judicial practice,and then elaborates the different understandings of the academic circles on the scope of the preemptive law of the crime of illegal operation and whether it requires criminal liability clause.On this basis,this article conducts an in-depth analysis by demonstrating the different scopes of prerequisite law for the crime of illegal operation and the existence of criminal liability clauses by demonstrating that different subjects have different prudential obligations and different levels of validity of different documents.In addition,although the criminal liability clause in the predecessor law is not a conviction condition,it cannot be denied that it can play a role in restricting criminalization.The essence of principle of legality stipulates that crime and punishment can only be stipulated by law is to restrict state penalty.The prepositional law for this crime should have criminal liability provisions.The third chapter first sorts out the specific types of acts of this crime that are stipulated in the current legal and judicial interpretations and other normative documents,as well as those found in judicial practice.Through combing,first,the problem of logical confusion of classification standards in the types of conduct prescribed by the judicial interpretations of this crime is exposed.And this led to a reflection on the need to protect the order of this crime.Second,in addition to judicial interpretations,there are many non-judicial interpretation documents that continue to incorporate some acts into the scope of the regulation of this crime,but this part of the regulatory document itself does not have the effect of specifying types of behavior of this crime.Finally,through in-depth analysis of the scope of this crime and the effectiveness of some normative documents,the author proposes solutions to the above problems.The fourth chapter introduces the judgment of the illegality cognition of the crime of illegal operation.First of all,in the current theoretical study of criminal law,the distinction between natural offenders and statutory offenders is introduced,and the significance of illegality awareness in statutory offenders is pointed out.Next,it introduces the basic path and standard of judgment of illegal cognition.That is,the basic path of "presumption-counter evidence" and the judgment standard of determining whether the actor has doubted about the nature of the behavior,and has diligently explored the legal nature of the behavior.Finally,the significance and feasibility of the cognition of illegality in the crime of this crime are affirmed.By summing up the experience of the theory of illegitimate knowledge in judicial practice,the detail criteria for judging the illegality cognition of this crime are given.