On The Regulation Of Intensity In The Application Of Economic Criminal Law

Nowadays, economic crimes are surging at an alarming rate. The conclusion of empirical research based on the crime statistics as well as substantial revisions to economic crime-related contents in the successive amendments of the Criminal Law suggest that it has become a crucial issue to curb economic crimes both in the science of law and the satisfaction of the general public. The application of the Criminal Law to social and economic life yields to those of the civil, commercial, economic and administrative laws and other regulations enacted by related authorities. Its involvement is largely manifested in the determination of what specific areas and what specific circumstances should be governed by the economic criminal law, and how we can weigh the penalty. Such issues make it necessary to decide the intensity of the regulation of application of the economic criminal law. Both in theory and practice, as a secondary means of regulation, the economic criminal law sees accurate qualitative and quantitative analysis of the cases as a subject that deserves continuous research. This dissertation, by citing existing examples of improper application of criminal law, seeks to discuss the harm of economic crimes(or stressing the legal interests protected by the economic criminal law), and to give a clear criteria and evaluation of the intervention of criminal law in economic life, so as to provide guidance to the improvement of legislation and the administration of justice, and lead to better realization of criminal liability. This dissertation has five chapters and an introduction, with a total word count of some 130,000 Chinese characters.The first chapter discusses the scope of the issue of regulation. The intensity of the application of the economic criminal law determines whether or not it is necessary to apply the economic criminal law to illegal activities in the field of economy, so as to reach the goal of the application of the criminal law. Therefore, this chapter mainly discusses three basic factors of the above issue, namely the applicable subject of regulation(economic crimes), the means of regulation(economic criminal law) and the goal of regulation(to maintain the economic order of the market). First, in terms of the narrative of economic crime, the dissertation mainly refers to the emergence and definition of economic crime, and points out that economic crimes occur in the environment of highly developed commodity economy and derive from the mechanism whose distribution of social resources is largely based on the market; such crimes mainly harm the economic interests of the overall market, but at the same time the difficulty of identification of the interests results in the difficulty of the precise definition of economic crimes. Up next, the dissertation helps readers better understand the economic criminal law. In the first place, it points out the significant characteristics of economic criminal law of our country: 1) the sequence of the law based on legal interest, 2) the volatility of the regulations, and 3) the features stipulated by the constitutive elements. In the second place, in terms of the extension of economic criminal law of our country, although it is controversial in theory and practice, it is generally believed that a typical economic crime disrupts socialist market economic order as stipulated in the provisions of criminal law. In addition, the economic denotation of criminal law also suggests that we should not limit to the empirical method, and it is necessary to be combined with its connotation, so that economic crimes are not limited to the disruption of the socialist market economic order. And still, we should see the various kinds of conducts regulated by the economic crime law from the perspective of their types, and consider the behavior and the legal interest correlatively, and construct the economic criminal law system on this basis. Only by doing so can we guarantee the flexibility and openness of our legislation, and can adapt to the changes in the social economic life. Third, in the elaboration of the maintenance of market economic order, which is the target of the regulation, the dissertation gives a clear definition of market economic order and the performance of the legal protection, with special emphasis on the dual levels of the connotation of the market economic order(i.e., the market circulation order and administrative regulation). It casts the economic crimes and the regulations of economic criminal law into two categories, and points out that these two types of crimes are different in their relationships with traditional property-related crimes. Among them, the crime of infringing the market circulation order has closer relationship with property interests, and they garner more social public concern and invite more condemnation, while that crimes resulted from infringement due to administrative regulation basically lead to the disruption of order, and this is more concerned with the state policy. The narrative serves as a prelude to later analysis about the regulation of intensity.The second chapter surveys the issue of the intensity of regulation. It starts from the ubiquitous phenomenon of the unclear boundary between economic crimes and the violation of law. In the first place it analyzes the phenomenon and the reason for this predicament from three dimensions, 1) the dimension of criminal behaviors: economic crimes are increasingly showing an unstable, complex and hidden nature. 2) the dimension of the stipulation of the law. There lies a complicity in the application of the economic criminal law and a lack or lag-behind of economic criminal law. 3) the cohesion of laws. The identification of the economic crimes relies on various economic and administrative regulations, while such judgments are very difficult to make by means of comparison and understanding. Given such a situation, the best solution to measuring the intensity of the application of economic criminal law is to perfect relevant legislation, pay attention to the interpretation and understanding of the law, yet this is more related to the level of legislative hermeneutics. The ultimate questions are the basis of the enactment and application of the economic criminal law.This suggests that the application of economic criminal law is fundamentally due to the fact that the economic crimes harm the legal interests protected by the criminal law, namely the socialist market economic order of our country. The adherence to the theory of the violation of the legal interests can not only protect the legal interests of the economic criminal law, and also comply with the requirements of the application of overriding laws. But the problem is that the risk society has greatly expanded the legal interests of the economic criminal law, and that the contents of legal interests are becoming more and more abstract and vaguely-defined, thus weakening the function of legal interests as the fundamental distinguishing standard, which further conflicts with the function of legal interests of limiting the right of punishment. In order to solve this problem, with reference to the fundamental guidance of legal interests in legislation and administration of justice, as well as the volatility and expansibility of interests, should still adhere to legal interests, but we should be clear that, as a legislation product of modern science and technology and economic development, the regulating function of the economic criminal law mainly lies in the realization of the mitigating risks; at the same time, we should think more about how to clarity the legal benefits, so as to accurately handle the regulation of the economic criminal law.The third chapter proposes the establishment of the criteria of intensity. The intensity of the regulation of the economic criminal law is subject to the three basic principles of the Criminal Law to ensure the legal control and moderation, and we should also take into account the particularity of the economic criminal law, namely the adjustment of economic criminal law is secondary to that of the civil law and administrative law and criminal law, and the application of the former should be placed behind that of the civil, commercial, and administrative laws in terms of importance, and the theory of modest restraints, which is related to legal interest, serves as important guidance. But the traditional principle of modest restraints of the criminal law emphasizes the discreet application of the criminal law, and advocates decriminalization and lenient punishment. However, in the risk society the application of the criminal law adheres to the principle of proper use of the punishment that can justify the crime. Therefore, it is necessary to formulate criteria of economic criminal law. To this end, first of all, we should consider the standard of the legal interests of the law, and understand the original intention of the Criminal Law to maintain the order is to guarantee freedom. There are fundamental differences between the Criminal Law and the administration specific laws. The economic criminal law seeks to provide guarantee for the safety of the operation of the market economy, and it emphasizes the core value of "safety", while the specific laws do not have inadequate means and enough power. The criminal law should allow related insitututions to make adjustments in the realization and distribution of specific economic interests. For this reason, it is difficult for specific laws to clearly define the contents and scope of legal interests, and it is difficult to determine the scope of criminal legislation and administration of justice. Secondly, as the rights of legal interests assumes the form of regulations and norms, it is necessary to start from the standards and norms formulated by legislation in the spirit of legal interests, and streamline the specific factors specified by economic criminal laws, and formulate a relatively clear, easy-to-handle operation standards. The combination of these two can help establish the basics of China’s economic criminal law, and can pinpoint some still ambiguous areas. Therefore, for the orders that mainly reflect the characteristics of trade equality in the market, the protection of the criminal law must focus on principle of guarantee of freedom. For the orders mainly reflect the characteristics of national administration regulation, the protection of the criminal law must focus on the judgment of interest infringement. In addition, because of the complexity and volatility of identifying the violation of the economic law and the convertibility between the violation of economic law and economic crimes, the criminal law should deliver timely reflections. This is a point that merits special attention in our legislation and judicature.The fourth chapter focuses on the evaluation of the effect of regulation. The accurate handling of the regulation of economic criminal law means the maxim realization of the intended function of economic criminal law. The understanding of this effect should necessitate overall consideration of the below three factors. One is the special means of criminal law which means a comprehensive analysis of the advantages and limitations of the means of the criminal law. The second is the applicable goal of the criminal law. In terms of the curbing of economic crimes, we should give full play to the positive general prevention function of the Criminal Law. The third is the guidance of criminal policy, mainly the identification of the goals of the Criminal Law. We should pay special attention to the society-orientedness of the Criminal Law. Based on the correct understanding of the effects of the above-mentioned regulation, we should, first of all, establish a series of scientific legislative principles, including the principles of necessity, cautiousness, coordination, and mutual support. Secondly, we should satisfy the requirement of the risk society and the function of human rights-protection of the criminal law, and identify crimes and non-crimes. Particularly, the former is a prime concern, but the handling should be under control. Finally, we should pay attention to the recognition of the norms of the criminal law by the general society. To this end, we should perfect the legislation of abstract dangerous crimes and non-constitutive components. On the other hand, in judicature, we should observe the following procedures; first, we should adopt the concrete substance method in judicial judgments. Second, we should analyze the issue from the perspective of the cohesion of legislation, and separate crimes from non-crimes. Finally, based on economic analysis of penalties, we should weigh the penalties appropriately, and reasonably apply the right category of penalty.The fifth chapter deals with the realization of the liability of regulation. The economic regulation is ultimately realized through the shouldering of the legal liability of the criminal law, because the legal liability resulting from economic crimes is a compound one, whose adjustment involves the legal departments including those of criminal law, civil law, commercial law, administrative law and economic law, etc. The nature of the different departments and the legal liabilities and components prescribed by the departments are different from each other, thus giving rise to legal liabilities of different natures and types. There are obvious differences in criminal liability, civil liability and administrative liability, but in practice, they overlap with each other to varying degrees. So from an overall perspective of the legal liability system, and given the limitation of criminal liability and mutual complementariness and coordination with other liabilities, it is viable to explore the possibility of another liability of economic crimes as the way to identify criminal liability, so as to optimize the identification of criminal liability. Among them, the compensation function of civil liability is complementary to the fulfillment of function of criminal responsibility; therefore, in the legal regulation of administrative crimes, we should give full play to the collaborative benefits of the administrative and criminal liabilities. The damage compensation liability prescribed in the criminal law provisions is a typical embodiment of this. In view of the "damages" occurring in the economic crime cases, such as the economic crime involving various criminals, it is necessary to refer to the liability implementation function of damage compensation prescribed in the criminal law, and give in-depth analysis to the regulation of criminal law, and consider giving light punishments to those who compensate for the losses. At the same time, with reference to the analysis of the overall liability, we should consider criminal punishment to malicious overdraw of credit cards. Only in this way can we truly perfect the supplement to the laws overriding laws and help control and prevent such crimes from occurring.