Study On The Judicial Application Of The Provisions Of The Crime Of Illegal Business Operation

Due to the existence of article 225(4)of the Criminal Law-the bottom line clause,the crime of illegal business operation is regarded as a typical "pocket crime" in the Criminal Law of China.Due to the ambiguity of the bottom line clause,the academic circle believes that its application scope is improperly expanded in judicial practice.As for whether this is the case,it needs to be evaluated with the help of judgments that can reflect the judicial application of the bottom line clause.According to article 225 of the Criminal Law,whether an act constitutes the crime of illegal business operation is first subject to the two major elements of "violating state regulations" and "serious circumstances",both of which are prerequisites for the application of the bottom line clause.Therefore,as far as the external form is concerned,it is necessary to clarify the determination of "violation of state regulations" and "serious circumstances" in the judgment to examine whether the bottom line clauses are expanded in practice.According to the feedback from the 646 judgments on the bottom line clauses of the crime of illegal business operations,there are many illegal business operations involved in the bottom line clauses,and most of them are convicted by law.However,there are still some judicial judgments that are deficient in the demonstration and citation of relevant pre-requisite state regulations,judicial interpretations,and criminal law clauses when convicted.Specifically,in practice,there are formal and substantive problems such as the lack of pre-basis,the implementation of the procedural system is out of place,anomie in the application of criminal basis,and deviating from the criminal elements of the crime of illegal business operation.It has been alienated and applied,and its scope of application has been improperly expanded.For this reason,when applying the bottom line clause of the crime of illegal business operation in judicial practice,it is necessary to strictly implement the principle of legality of crime and punishment,pay attention to the value guidance of the modesty of criminal law,give priority to the thinking of decriminalization,and strengthen the limited function of criminal law interpretation;and use specific methods:the logic of incriminating reasoning,express "violate state regulations",evaluate elements of conviction circumstances and implement the judicial request system,reasonably identify "other illegal business activities",to strictly control the scope of application of the bottom line clause,and guard against the expansion appliance of the bottom line clause.