On Illegal Business Operation Behavior In Crime Of Illegal Business Operation

In juridical practice, there are signs of “pocket crime” for crime of illegalbusiness operation, which are tacitly approved by some scholars and judiciaryworkers. For there are articles about blank facts and highly-recapitulative leakstoppage provisions in the crime, therefore the legislation and administration ofjustice are overextended, resulting in the excessive quotation of this crime in practice.Some scholars even hold the opinion that the establishment and interpretation ofcrime of illegal business operation violate the principle of a legally prescribedpunishment for a specified crime and are against the value orientation of marketeconomy, as a result, it is suggested that the crime of illegal business operation shallbe abolished. It is thought that it is not a good idea to criticize the articles in thecriminal law or even abolish those provisions frequently; instead, the criminal lawscholars shall hold the view of interpreting the provisions of the criminal lawnormatively under the guidance of the principle of legally prescribed punishment fora specified crime. The interpreter shall face up to the openness of the legal texts andunderstand that the facts in life can fill laws, which can bring life to laws. With this asbasis, this paper makes in-depth analysis on the illegal business behavior in crime ofillegal business operation with the point of view that crime of illegal businessoperation is statutory crime from the three aspects, which are “violating nationalregulations”,“illegal business behavior, especially those that severely disturb socialorder” and “the identification on some special forms of illegal business behavior”.With the conclusion and judgment on issues concerning this crime in juridicalpractice, this paper tries to consolidate the foundation of the principle of legallyprescribed punishment for a specified crime through solving the problems like thescope of this crime is too wide and it is hard to identify this crime in order to masterthe constitutive requirements for crime of illegal business operation. Theunderstanding on “violating national regulations” must be in accordance with theArticle96of the criminal law, that is, the “national regulations” here refer to the laws enacted by the national people’s congress and administrative laws and regulationsissued by the State Council, if these regulations are violated, it is against the principleof legally prescribed punishment for a specified crime. The understanding andidentification on the “illegal business behavior” initiates the analysis on the illegalbusiness behavior in monopolization, licensing system and the “illegal operation ofsecurities, future goods, insurance business or fund payment and settlement businesswithout approval of relevant competent departments”; as for the fourth item whichsays that “illegal business behavior, especially those that severely disturb socialorder” is regarded as leak stoppage provision by many scholars; furthermore, in-depthanalysis is made on the idea that the crime of illegal business operation is the “pocketcrime” of illegal business behavior. The basic features and legal interests infringed of“illegal business behavior, especially those that severely disturb social order” arepointed out. Meanwhile, from the perspective of interpretative theory, it is believedthat the identification on “illegal business behavior, especially those that severelydisturb social order” shall take the systematic interpretation method and adhere to theprinciple of “same interpretation for equal items” with the first three behavior patternslisted in Article225in the criminal law. At last, some special forms of illegal businessbehavior are discussed based on juridical practice, and some misunderstandings arepointed out and the standpoint required by “illegal business behavior” is adhered to.