| In the current criminal law,the connotation and denotation of some crimes are not easy to be determined because the description of crimes is not clear enough,or by setting fallback provision.However,judicial interpretation and judicial practice,in order to maintain social order and combat new types of crime,often expand the application of such crimes,making it a "pocket crime" in a certain field.This tendency of abuse has violated the Principle of Legality and the principle of modesty of criminal law,and people cannot produce reasonable behavior expectation from law.On the premise that the legislation has not been amended,it is of great significance to regulate the application of "pocket crime"by using the restrictive interpretation.From the angle of the crime of illegal business,it has become the fallback crime in the market economy,and the possibility of "illegal business crime" can be found in any illegal business without any specific accusation.So,It has become the most typical "pocket crime" in the current criminal law.For the crime of illegal business,expanding and applying its fallback provision is the root of its "pocket problem".By using the three specific methods of restrictive interpretation,namely,based on the core meaning of legal terms,conduct the value of consideration and the use of similar interpretation rules,the application of fallback provision can be reasonably regulated.By restricting the interpretation,we can conclude that the fallback provision applicable to this crime must meet the following requirements:Firstly,the unlawful business conduct suspected of violating the fallback provision shall be homogeneous with the enumeration in the articles of law;Secondly,the circumstances must be serious enough to the extent of criminal illegality;Thirdly,the legal benefit of "market access order" must be violated;Last but not least,the illegal business should violate the "national provision" which are made by The National People’s Congress and its Standing Committee,or the State Council.Further more,the "national provisions" should contain the provisions of subsidiary criminal law.When we restrict the interpretation of "pocket crime",we should pay attention to the description of crime and legal interest.Only when the description of crime and legal interest are relatively clear through interpretation,can the judicial application be standardized,the trend of "pocket" be restrained,and the organic balance between maintaining social order and guaranteeing human rights be realized. |
