Determination Of The Crime Of Illegal Business Operation

Since 1997,when the criminal law abolished the crime of speculation and profiteering and stipulated the crime of illegal business operation,the legislature has made three legislative amendments,and the highest judicial organ has jointly promulgated more than 20 judicial interpretations.In judicial practice,scholars have a lot of disputes over the provisions of "state regulations","market order" and "serious circumstances" in the articles,and they also complain about the defects of the mode of combining "blank crimes" and "backstop clauses" in the crime setting.The determination of the crime of illegal business needs comprehensive determination from the subjective and objective aspects.The subjective aspect requires the subjective intention of illegal crime under the premise that the perpetrator has the possibility of illegal cognition.Objective aspect,combined with the article two hundred and twenty-five of the criminal law provisions of the crime of illegal business content,and more than twenty past relevant judicial explanation,and from the legislative level effective reference projects both in2019 on the deal with opinions on some issues of criminal cases of illegal lending"(hereinafter referred to as" opinions ")for illegal lending ideas and specific measures of criminal law,and for this crime substantive recognition: the clear legal category of"regulations of the state" under the premise,the nature of "violation of state regulations" to clarify the essence;Make clear the essential connotation of "illegal business behavior",and then make a scientific and reasonable definition of its category;Define the limits of the specific scope and degree of "disturbing social order" and "serious circumstances" contained in "harmful results",and establish the standards and rules for determining criminal results.Since the crime of illegal business set up charges of expanded tendency,three legislative changes of crime itself has carried on the concrete filling,expand the scope of content on charges,20 times successively promulgated judicial interpretation,involving telecommunications,medicine,tobacco,a variety of domains such as gambling,and illegal business behavior of many goods can be considered as the crime of illegal business,the judicial practice is the present situation of chaos,the cognizance of the crime of illegalbusiness seems to be out of the crime itself,but pay more attention to in the provisions of the judicial interpretation,the judicial organs became a form of "justice",was essentially created "legislators",The determination of the whole charge has shown a tendency to expand.Charges set itself,the characteristics of legislation language ambiguity,repeatedly used out terms are crime of illegal business expansion of factor,to limit the expansion of the crime of illegal business that need to adopt legislative and judicial means,at the same time for"crimes" to make clear the scope of defined,on the application of the clause of "out" to make a reasonable conditions,the focus is on the great scope of the judicial interpretation provisions to legitimacy,rationality and scientific nature of limited requirements,judicial interpretation provisions of the crime of illegal business to follow the austerity of criminal law of the spirit and principle of a legally prescribed punishment,to be cautious,For example,with the characteristics of "law to be followed" and "evidence to be followed" embodied in the opinions,the criminal identification of illegal business crime is made in detail and clearly aiming at illegal lending.evidence" characteristics reflected in this year’s "Opinions".Criminal identification.