Research On The Illegality Judgment Of The Crime Of "price-gouging" Illegal Business Operation

The judgment relationship between administrative violations and criminal violations is a long-standing issue.With the advent of the risky society,criminal law has gradually become an important control method in social governance,and administrative criminals who presuppose administrative illegality have also shown an expansion trend.Taking the period of the new crown epidemic as an example,state agencies have adopted both administrative and criminal measures to regulate price violations such as raising the prices of epidemic prevention supplies and necessities for people's livelihoods.However,during the period of the epidemic,judicial interpretations that included raising prices and seeking huge profits into the evaluation category of illegal business crimes went beyond the semantic scope of "illegal business" in the criminal law,and did not satisfy the pre-law's "national administrative licensing".The conditions of "prescribed" do not comply with the homogeneity interpretation rule of the all-out clause.In the context of the increasingly generalized execution of competition and punishment,this article takes the "price-raising" illegal business crime as an example,and discusses the judgment of its illegality and the path to the crime from the following four parts:The first part explores the basic connotation of price bidding,and introduces the legal responsibility of price bidding during the epidemic period by citing cases,and reflects on the legitimacy of price bidding as punishment: First,criminal justice relies too much on the prepositional law and mechanically The application of administrative norms and professional standards will lead to the rigidity of the judging process and results,and may even violate public perception.Second,the "lack of legal benefits" of administrative offenders and the existence of all-inclusive clauses are likely to cause the "pocketization" of administrative offenders to show an expanding trend.Third,allowing criminal law to assume diversified functions in social governance and moral guidance will lead to excessive criminalization of social governance.Therefore,as a typical administrative offender,the crime of illegal business operations is to clarify the boundary between the administrative violation and the criminal violation when constructing a path for the execution of penal regulation for raising prices.The second part discusses the criteria for judging the illegality of administrative offenses based on the principle of the unification of legal order,that is,when an administrative offense can reach a criminal offense,there are mainly "quantity difference theory" and "quality difference" "Said" and "Quality Differences".This article advocates relatively independent judgments of criminal illegality on the basis of "theory of qualitative difference",admits that the analysis of the elements of the criminal law is inseparable from the concept of other departmental laws,but the pre-law only has a reference and restrictive effect on criminal violations..Based on the difference in the purpose of normative protection and the principle of modest restraint of criminal law,the independence of criminal law should be regained in the judgment of some important issues.Therefore,illegal acts in other departmental laws do not necessarily have criminal illegality.The third part applies the relatively independent judgment of criminal illegality to the case of price drive up,explores whether the pre-regulation of price drive up meets the "national regulations" in the crime of illegal business operation,and reflects on the purchase and sale in the judicial determination of price drive up The attitude towards the adoption of administrative standards such as the price difference rate.Through relatively independent judgments of criminal illegality,it can be known that the market order infringed by price hikes belongs to super-personal legal interests and does not conform to the essential characteristics of the crime of illegal business operations.Therefore,it is necessary to restrict and convict the illegal business crimes of "price drive up".The fourth part studies the path to the crime of "price-raising" illegal business operations and suggestions for improvement.First of all,from the aspects of restricting the identification of the "epidemic prevention and control period" and accurately calculating the "amount of illegal income",some price-raising behaviors were decriminalized.Secondly,by following the rules of homogeneity interpretation,restricting the application of all-out clauses,and applying other crime regulations when there is a competing relationship to stop or reduce the application of the crime of illegal business operations.In addition,the legal system and administrative regulations for price control should be improved,market transactions should be encouraged,market rules should be respected,and severe penalties should not be abused to correct misconduct.Only by observing the principle of modest restraint of the criminal law and adhering to the status of the criminal law guarantee law can we achieve a value balance between stabilizing the market order and protecting the legitimate rights and interests of citizens.