On The Determination Of The Crime Of Illegal Business Operation In The Tobacco Industry

In recent years,the problem of "pocketing" of the crime of illegal business operation has become more and more serious.The main reason is that many elements of the crime have the characteristics of generalization and the application of alternative punishment by imagination.Theoretically,legal interests,"violation of state regulations","serious circumstances" and "other illegal business acts that seriously disrupt market order"(hereinafter referred to as "other illegal business acts")have a difficulty in identification.The article holds that the legal interest of the crime of illegal operation of tobacco industry is the market access order with the characteristics of collective legal interest,and there is no "lack of legal interest",so it can only be considered as abstract legal interest.The scope of "State Provisions" should comply with the category of "laws and administrative regulations" stipulated in Article 96 of the Criminal Law,without prohibitive provisions and subsidiary criminal laws."Serious circumstances" should be taken as the constitutive elements of the conviction,and the objective mixed identification model should be adopted to discuss the seriousness of the circumstances of the illegal acts related to smoking.The definition of the scope of the provision should combine the rules of blocking elements and the interpretation level,and draw lessons from the internal and external double interpretation standard path to limit.In terms of the practical dilemma and solution of the identification of the crime of illegal business operation of the illegal smoke-related act,this paper carries on the bidirectional thinking from the two ways of entering the crime and leaving the crime.The act of "renting another person's license" can be divided into the act of renting a shop,the act of operating legally after the license and the act of renting a license to earn illegal income.The former does not violate the criminal interest of illegal operation,while the latter does violate.Both acts violate state regulations but should be discussed separately in the context of the criminal policy of leniency and discrimination.Although the simple "transportation without transportation permit" violates the national regulations but does not infringe on the market access order,it may infringe the crime of illegal operation when it is used as an auxiliary means of other illegal operation behaviors.On the controversy of "buying and selling fake cigarettes without license",this paper prefers the latter to the crime of illegal business and the crime of producing and selling fake and inferior products.