Research On The Limitation Of Judicial Application Of The Crime Of Illegal Business Operations

The market economy is developing increasingly vigorously,followed by the influx of a large number of investors and operators into the market,causing a greater impact on the market order and causing adjustment and changes in the market order.With the historical changes,the crime of illegal business operation plays an important role in escorting the economic order.The crime of illegal business operation is one of the crimes of disrupting market order in the third chapter of the current "Criminal Law".It is found that the crime has a trend of continuous expansion during the development of the crime.The main reason for the expansion is the legislative defect.Based on the clear requirements of the principle of statutory crimes and punishments,there are some relatively vague and general words in the legal provisions of this crime,such as "violation of national regulations","serious circumstances",and "other",which makes the judicial organs have a great deal of practical work.The right of discretion,improper penalties for certain illegal business activities.In recent years,the Supreme Judicial Authority has issued many judicial interpretations on item(4)of this crime,namely "other illegal business activities that seriously disrupt market order",which has gradually improved the list of charges for this crime,which is conducive to the judicial authorities in handling cases.The rational judgments made by relevant illegal operations on whether they constitute crimes have restricted their discretion to a certain extent.However,the malpractices of a large number of judicial interpretations also show that the crimes of illegal operations have a strong bottom line.Violation of the criminal law is difficult to make timely and accurate judgments,thus suppressing the vitality of the market economy.From the perspectives of comprehensive scholars,the crime is decomposed and refined from all levels of the crime of illegal business operations,and unified applicable standards are extracted to provide references for judicial practice,and to avoid unclear judgments on the conditions of criminalization of illegal business activities.Non-criminal means to "criminalize" treatment,reduce the tentacles of the crime of illegal business operations,limit the application of the crime,avoid damaging the vitality of the market economy,and discourage market entities from participating in market economic activities.In order to reasonably limit the judicial application of the crime of illegal business operations,it is necessary to restrict interpretation of the elements of the crime of illegal business operations.Specifically: the “violation of national regulations ” in the crime of illegal business operations only refers to the laws and decisions formulated by the National People's Congress and its Standing Committee.The administrative regulations,prescribed administrative measures,and decisions and orders issued by the State Council cannot be expanded.Explanation.The "serious circumstances" in the crime of illegal business operations require not only the amount of illegal business operations and the amount of illegal income as the basis for judgment,but also other circumstances and comprehensive judgment on top of this.At the same time,the fundamental reason for the judicial abuse of the crime of illegal business operation lies in the “pocket crime” set in Article 225(4)of the Criminal Law.Therefore,to effectively prevent judicial abuse of the crime of illegal business operation,it is necessary Adopt legislative restrictive measures to improve legislation on the crime of illegal business operations.