An Analysis Of The Legal Application Of The Illegal Provisions Of Illegal Business Crime

In the early stage of reform and opening up,in order to ensure the effective operation of China's market economy and promote the development of national economy.In the eighth section of the third chapter,the specific provisions of the criminal law stipulate the crime of illegal business operation,and in order to realize the regulation of the unpredictable and diversified criminal behaviors in the future,it has set up the clause of peddling.Since the21 st century,with the rapid development of the Internet and society,the business behavior of participating in the market economy has become more and more diversified,and the degree of openness and inclusiveness of the socialist market economy has become higher and higher.As a result,the effective written laws and regulations lag behind the development of market economy.To solve this problem,the judicial organs usually adopt the way of convicting and sentencing by quoting the understatement clause.With the characteristics of generality,the clause of "touting the bottom" puts forward higher requirements for the application of the judge's clause.At the same time,with the continuous improvement of the public legal awareness and legal literacy,the judges pay special attention to the justice of the law.If there is an imprecise problem in quoting the toughest clause,it will cause widespread concern of the general public,and then develop into a social problem.The case of Inner Mongolia farmers purchasing corn in 2017 is a typical example of this problem.After the media's competing reports,the above cases have become the focus of attention from all walks of life.Starting from the report of this case,the general public and experts and scholars have launched a heated social discussion on how to apply the deceptive clause of the crime of illegal business operation,which has also aroused the enthusiasm of academic circles for the study of the crime.The author tries to start from the case of Inner Mongolia farmers purchasing corn,explore the problems in the application of the law,analyze the causes of the problems,and then put forward the countermeasures to solve the problems,hoping to provide suggestions for the clause to play a better role in practice.Except for the introduction and conclusion,the paper is divided into four parts:The first part is the introduction of typical cases.The two cases are Wang Lijun's case of changing the judgment of innocence from the retrial of illegal business operation and Lin and Feng's case of second instance of illegal business operation,mainly explaining the cause of the case,the trial results and the judgment basis of the courts at all levels.In particular,it raises the issue of different judgment results of the court of second instance.In the second part,the author explains the problems in the application of the basic clause.Combined with the two cases in the first part,this paper puts forward two problems in the application of the law: the conviction of the interpretation clause is not accurate and the sentence of the application clause is not accurate.The third part analyzes the causes of the problems in the application of law.It points out that the high abstractness and generality of the clauses,the gap and standard of judicial interpretation,and the difference of judicial individuals are the reasons for the problems in the application of the law of the substandard clauses in the crime of illegal business operation.The fourth part,put forward the countermeasures to solve the problems in the application of law.First of all,limit the scope of application of the clause;second,regulate the standards of judicial interpretation and sentencing;finally,regulate the discretion of judges.