The Application Dilemma And Restrictive Interpretation Path Of The Crime Of Illegal Business Operation

With the development of the market economy,various new types of illegal business operations emerge in endlessly,and the judicial application rate of Article225 of the Criminal Law continues to rise.There are many disputes in academic circles about the understanding of the constitutive requirements of this crime: How should the scope of "national regulations" be determined? How should I understand the bottom line clause? In addition,this crime is an administrative crime,and various illegal business operations are stipulated in administrative regulations.The formulation and modification of administrative pre regulations directly affect the determination of this crime.Based on a specific case,combined with the theory of determining illegality,To explore the difficulties and causes of this crime in judicial application.Determination of the illegality of this crime,The discussion on this issue in academic and practical circles has never stopped.This crime has the characteristics of criminal law relevance and secondary illegality,however,the judicial one-sided use of "quality" or "quantity" to judge the illegality of this crime further obscures the judgment of the illegality of this crime,leading to frequent problems in the judicial application of this crime.This article adopts the "quality difference theory" to identify the illegality of this crime,using "quantity" as the basis for screening administrative pre violation,and using "quality" to make substantive judgments on the illegality of this crime under the purpose of criminal law norms.The comprehensive use of "quality" and "quantity" to judge the illegality of this crime depends on the interpretation of the legal benefits of this crime and administrative pre norms.Regarding the legal benefits of this crime,it is necessary to first judge the legislative facts,because interpreting the current illegal act with the legal benefits protected by the legislator when formulating legal norms does not lead to a reasonable conclusion.Therefore,it is also necessary to comprehensively judge whether the legislative facts on which legal norms are based have changed.If the legislative facts have changed,it means that the corresponding market order is no longer necessary for criminal law protection,and thus does not constitute a crime.Conversely,it may constitute a crime.At the same time,the standard is used to explain the "pocket" clause of this crime,limiting the scope of the "pocket" of this crime.Regarding the administrative pre regulation of this crime,identifying the scope specified by the state strictly.Departmental regulations and judicial interpretations that exceed their authority are not "national regulations".In combination with the administrative pre regulations for determining the relevance of legal interests,clarify the type and specific content of "permission" for this crime,use judicial interpretation as a quantitative standard for determining the circumstances of this crime,and limit the scope of punishment for the crime of illegal business operations.The criminal judicial determination of this crime has become increasingly dependent on administrative pre norms,resulting in the impairment of the independent character of the criminal law.On the one hand,using the "quality difference theory" to judge the illegality of this crime,making the distinction between administrative and criminal violations of this crime clearer.On the other hand,it is necessary to clearly identify the legal benefits of this crime and administrative pre regulations,increase the accuracy of legal application,and effectively resolve the issue of the connection between punishment and execution in the determination of the illegality of this crime.