Studies On The Expansion Of The Crime Of Illegal Business Operation

The crime of illegal business operation was decomposed from the crime ofspeculation on the1979Criminal Law.It was also changed crime since the CriminalLaw revised.In the past17years,the National People’s Congress and its StandingCommittee, the Supreme People’s Court, the Supreme People’s Procuratorate haveissued a series of provisions relating to the illegal business crime legislation andjudicial interpretation.In the judicial practice,the crime of illegal business operationcases stipulated in paragraph4of the criterions for the conviction is growing,whichmakes the crime of illegal business operation into a new “pocket crime”.In an age ofthe “principle of legality” which has been established,any violation of the principle ofcriminal legislation and justice should be tried to be avoided.To follow up,how tounderstand correctly the phenomenon of the expansion and prevent the unreasonableexpansion trend from continuing to increase of the crime of illegal business have beenbecame the subject of common concern of legislators, judicial and scholars.Based on the theories and practices on the crime of illegal business operation, thefollowing studies focuses on the problems of the expansion of the crime of illegalbusiness operation. The full text is divided into five chapters:In the first chapter, the legislative evolution of the crime of illegal businessoperation in China was introduced and the prent crime of illegal business operation of our country’s coming from the decomposition of the old criminal law crime ofspeculation was pointed out;at the same time,for a better comprehension andunderstanding the crime of illegal business operation,the characteristics of theconcept of the crime of illegal business operation, legislation and the crimeconstitutions were introduced briefly.In the second chapter,the meaning of the crime of illegal business expansion andits expansion performance at the legislative level, the expansion in judicial practiceand judicial interpretation levels were explained.In the meantime, adopting differentstandards, the expansion of the crime of illegal business operation types can bedivided into three kinds:First,according to the body of the crime of illegal businessoperation expansion, it can be divided into the expansion of the legislature and thejudiciary.Second, according to the object of the crime of illegal business operationexpansion, the object can be divided into specific items as well as ordinaryitems.Third,according to the content of the crime of illegal business operationexpansion, it can be divided into the expansion of management main bodyqualification illegal, the expansion of the illegal content and the expansion of theillegal management behavior.In the third chapter,based on the analysis on the top legislature enacted thesupplementary provisions and the highest judicial organ of judicial interpretation andlocal judicial organs in some cases in judicial practice.after the establishment of crimeof illegal business operation,from the perspective of whether it is conformed with the“Principle of legality” for a corresponding evaluation,the expansion of the crime ofillegal business operation can be divided into the the rational expansion and irrationalexpansion.In this way,it provide an objective and comprehensive reference for ourcorrect understanding of the expansion of the crime of illegal business operationquestions.In the fourth chapter,the causes of the excessive expansion of the crime of illegalbusiness operation were analyzed and the dangers of the unlimited expansion of thecrime was pointed out.The crime of illegal business over-expansion has the followingmain reasons:the limits of legislation of this crime of and the actual condition of Chinese economic development and the influence of Chinese traditional values.Thereare several dangers of excessive expansion of the crime:it does not conform with theclarity of criminal law legislation which is needed for the “principle oflegality”needed;it is violated the the austerity spirit of criminal law and it also mayviolate the legal rights of individuals.In the fifth chapter, on account of the out control status and its harmfulproperties in China of the crime of illegal business expansion, a suggestion oflimiting the crime of illegal business excessive expansion is proposed:limit thelegislation expansion of crime of illegal business operation;Make a clear definition ofthe connotation of "regulations of the state"; improve the describing way of the term“transparency provisions” need to be improved;explain the crime of illegal businessoperation legislation reasonably;limit the judicial interpretation expansion of thecrime of illegal business operation.Explain properly judiciary and set up a specialterms about the retrospective in the judicial interpretation;limit the judicial practiceexpansion of crime of illegal business operation.Adhere to the principle of “principleof legality” and use judicial discretion properly.