| The crime of illegal business operation is a new additional charge inP.R. China’s Criminal Law of1997, but within a decade, national legislationcontinued to expand its connotation, judicial interpretation expanded itsscope without control, judicial practice further aggravated its expansion trend.The expansion of the boundary of the crime of illegal business operationcauses the concern and controversy in academia. Combining with judicialpractice, this dissertation researches the current situations, the reasons and theconsequences of the expansion of the boundary of the crime of illegalbusiness operation and studies the solutions of limitation, in order to putforward a relatively reasonable standard for the judicial practice.Apart form the introduction and postscript, the dissertation is composedof six chapters, with approximately200,000words.The introduction describes the research value and method of the dissertation, and defines the core word expansion. Expansion means theextension beyond the literal meaning of the original provision, whichincludes criminal legislation expansion and criminal justice expansion.The first chapter analyses to the expansion process of the crime ofillegal business operation. The first section introduces the legislative historyand creation reason of the crime of illegal business operation, and points outthe establishment of this crime of illegal business operation is to solve theproblem of the crime of speculation, which had a broad content and didn’tadapt the development of market economy. The second and third sectionanalyzes the expansion in the criminal legislation and justice. After theincreasing expansion of legislation and justice, the crime of illegal businessoperation becomes a universal clause of economic crime conviction.Basing on the causes and the pros and cons of the crime of illegalbusiness operation, the second chapter puts forward the view that theexpansion of the crime of illegal business operation should be limitedreasonably. The criminal legislative intent and legislative terminologyvagueness determine the expansion of the crime of illegal business operationunavoidably, which is necessary for social development, but based on thehuman rights protection function of the criminal law and the free competitionnature of the market economy, the expansion should be limited to some extent and establish of applicable standards to determine the maximumboundary.The third chapter puts forward fundamental standard of the restrictionis to define the nature of the crime of illegal business operation. Bycomparison with different theories about the nature of this crime, the authorputs forward that taking market management order as the nature does nothave the function of guiding the practice, which leads to the broad definitionof this crime. The nature of the crime of illegal business operation is the orderof market access, which means the government’s regulation of marketer toenter specific market field. The order of market access should be asupplementary role in the order of market; therefore, the crime of illegalbusiness operation in the whole economic crime is in the secondary position,which is not the miscellaneous provision of the economic crime. The crime ofillegal business operation is necessary in the near future and should not beabolished, but the constitution of the crime should be explicitly explained bythe criminal law interpretation in order to limit the expansion of the boundaryof the crime of illegal business operation.The following three chapters restrict the expansion of the crime fromdifferent aspects by this fundamental standard. The fourth chapter discussesthe precondition of the crime of illegal business operation: the violation of State Regulation. The first section analyses how to correctly define theextension of State Regulation. The judicial organs expand the boundary fromthe approval, authorization and accordance, which violates the legislative lawand militates against the application of the criminal law. The reasonableboundary of State Regulation should be in accordance with formulationdepartment. The second section analyses the connotation of the violation ofState Regulation. The author puts forward the theory controversy betweenillegal unity and illegal relative, and analyzes how to apply administrativeregulations accurately in the criminal justice from three aspects: the doubleillegality of administrative crime, the criminal responsibility clause ofadministrative regulations and the amendment of administrative regulations.This provision is not useless, which makes the judicial organs prove theviolation of State Regulation to achieve the purpose of restriction.The fifth chapter discusses the basic condition of the crime: the illegalbusiness behavior. The concept of business has different meanings betweenPrivate Law and Public Law. According to the provision, the illegal businessbehavior does not contain all of the management behavior in violation of thelaw, but against the violation of market access order without the permissionof government. The studies on the specific illegal business behaviors and theconcurrences of this crime should be on the basis of the nature of the behavior.The sixth chapter discusses the degree condition of the crime: seriouscircumstances. How to explain serious circumstances reasonably, we needtwo levels of thinking, the first is the damage degree of the legal interest ofthe crime, and the second is the culpability of punishment in criminal law, thelast is more important. We should concern serious circumstances from theperspective of the last resort of criminal law. Due to differences in theadministrative licenses, the standard of serious circumstances is alsodifferent. |
