On The Application Of The "recovery Clause" In The Crime Of Illegal Business Operations

The crime of illegal business operation in article 225 of the criminal law is the crime of speculation which has been abolished.In recent years,with the rapid development of the market economy,the application of the illegal business crime in judicial decisions is becoming wider and wider,particularly the existence of the fourth terms of the bottom clause.In order to apply the provisions correctly and reasonably,the judicial authorities have issued multiple judicial interpretations in succession,constantly expanding the behavior patterns regulated by the crime of illegal business operation,and expanding the scope of the application of the crime of illegal business operation.However,due to the increasing number of judicial interpretations issued,many scholars believe that the crime of the illegal business crime "out" into the diameter has become more and more serious.It has the potential danger of deviating from the principle of criminal law,the tolerance principle of criminal law and the modesty of criminal law.As a result,the crime of illegal business operation "the bottom clause" has always been at the forefront of controversy.However,this paper argues that the rapid development of market economy in China and the lag of the law itself have provided the theoretical background and the realistic foundation for the establishment of the illegal operation crime,and it has not deviated from the legal doctrine of criminal punishment,nor has it violated the restraint of the criminal law,which is corresponding to the political economy of the socialist market in our country.In this case,the paper tries to reconstruct the importance of the principle of criminal law,and to reiterate the importance of the systematic explanation of the term of the illegal business operation.On this basis,reconstructing a fairly sexual interpretation principle,advocating the system interpretation and the equivalent interpretation complement with each other.According to the content layout,this paper divides into four parts.The first section describes the legislative background of "the bottom clause" for the illegal business operation,which has been written in two parts including the theoretical background and the reality background.The illegal business operation crime and the existence of " the bottom clause " are the result of deliberate choice of legislators,which essentially maintains the stability of the law,ADAPTS to the social changes and the legal system,and better to serve the economic order of the socialist market.The second part demonstrates the current application of "the bottom clause" for the crime of illegal business operation,with analyzing the clause through cases and summarizing the existing disputes,the author puts forward own views.The third part is the introduction of the interpretation method of "the bottom clause" for the crime of illegal business operation,because the interpretation of the clause is the embodiment of the method and path of its application.By explaining the "other specific disrupted the market order of the illegal business behavior","regulations of the state","gravity of the circumstances,"explained object to further identify key,in order to reach the purpose of clarifying its regulatory scope.The fourth part advocates introducing the principle of equivalence interpretation.The principle of equivalence and the system of interpretation methods is not a contradiction,in fact,they are cooperate with each other.so this part in pledge the legality principle as the basic principle,re-establish the interpretation principle of illegal business crime.It is hoped that the scope of its regulation can be properly clarified,to make it better reflect the legislative purpose Better for the crime of illegal business "out" clause apply to provide certain theoretical basis.