Study On The Miscellaneous Provision In The Crime Of Illegal Business Operation

The ambiguity of the miscellaneous provision in the crime of illegal business operation has led to the confusion in its judicial application.The crime of illegal business operation has seen a return to the crime of speculation and has become a new "pocket crime".Scholars have proposed various methods to limit the application of miscellaneous provision and among them,the ejusdem generis rule has a greater influence.Applying the ejusdem generis rule in the catch-all clause can give full play to the advantages of the statute,but the advantages must be exerted in the typical statute provisions.If the provisions of the statutes do not meet the prerequisites for applying the ejusdem generis rule,then "hard-moving" will only lead to "distortion" and the conclusions cannot be convincing.Some scholars believe that according toejusdem generis rule,the miscellaneous provision of the crime of illegal business operation can only regulate behaviors that violate the market access order.However,the market access order is still a public and super-individual legal interest.Although it is slightly smaller than the mainstream market order,it is still a large concept.In real life,it is impossible to take all actions that violate the market access order included in the scope of illegal business crime.In addition,the market access order theory rejects all types of behaviors that do not violate the market access order,although these behaviours seriously disrupt market order.And it is not conducive to the construction of a harmonious market environment in China.An important reason for this situation is the lack of appropriate legal interest to direct the law suit.The traditiona lconcept of "market order" adopts a broad definition in order to prevent omissions.Although the emerging legal concept of "market access order" focuses on only one aspect of market order,it does not change the nature of transpersonal legal interest.It is unrealistic to limit the crime of illegal business operation only from super-personal legal benefits and this method is not correct.If follow this way,the result is that the expansion of illegal business crime clause will not been effectively restricted.The ultimate goal of criminal law is to protect theinterests of the people,while administrative management can only be an act of means.In the concept of legal interest,the relationship cannot be reversed.Therefore,when interpreting the miscellaneous provision of the crime of illegal business,we cannot confine ourselves to the administrative order,but also to reveal the damage to the personal interests.If the personal legal interests are not violated in the end,it should not be regarded as "seriously disrupting the market order",and naturally the behaviour cannot constitute the crime of illegal business operation.Holding such a concept of legal interest will greatly limit the application of the provisions of the crime of illegal business,strengthen the guilt emergence function,and help change the current chaotic situation.The thesis is divided into four chapters.The first chapter mainly introduces the present situation of the crime of illegal business operation from the legislation and justice,the reasons for the improper expansion and the dispute over whether the clause needs to be repealed.The second chapter mainly analyzes the ejusdem generis rule that has greater influence now and points out the problems in the application.The third chapter mainly introduces and reviews the existing views of legal interest in the crime of illegal business,and the author will make a choice from it.In the last chapter,the author will put forward measures in both form and substance in order to regulate the application of the miscellaneous provision in the crime of illegal business operation.