Research On Circumstance Crime In The Crime Of False Advertising

As a unique type of crime in criminal law of our country,plot crime is widely existed in the legal provisions in the field of economic crime,which has been paid more and more attention by some scholars.The discussion in academic circles is mainly focused on the debate on the advantages and disadvantages of the design of the system of plot crime.This article does not intend to attack its rationality from the "God angle".First of all,it clarifies the relevant concepts of the plot crime in combination with the main viewpoints of academic circles,and under the position of insisting on applying the correct criminal law interpretation method to make it as close to the legislative intent as possible.Starting with the crime of false advertisement,this paper studies the intention of the criminal law of our country to stipulate the circumstances in the crime of false advertisement and to increase the elements of the crime of false advertisement.Under the influence of the pattern of "qualitative and quantitative" incrimination and the theory of appropriate intervention of criminal law,this is a compromise choice made in order to reasonably take into account the two functions of social protection and human rights protection of criminal law.Whether the circumstances are guilty or not is the boundary between the nature of false advertising and non-crime.However,the purpose of this regulation has not been realized in the judicial application.Based on the research and statistics of the judgment of the false advertisement case published on the China adjudicatory documents net,this paper finds that the application rate of the crime of false advertisement is very low in general,and most of the perpetrators have carried out the act of using advertisements to carry out false propaganda.But in the end,because of the imaginative competition in the criminal field,he is punished with other crimes,or only the administrative level of illegal punishment.These true judgments reveal the problems existing in the interpretation of the plot offenders in the crime of false advertising,including the lack of a standard for determining the "seriousness" of the circumstances in the case,the lack of clear concepts in the current interpretation,the confusion in the administration of justice,the existing standards tend to fossilize the amount of crime and so on.The reason is that the current interpretation itself is unreasonable,and the joint interpretation of the administrative organ and the procuratorial organ has influenced the independent trial of the judicial organ to a certain extent.The existence of "other serious circumstances" in the interpretation of the "bottom" interpretation provisions in practice into the cycle of hermeneutics,can not define a more clear false advertising crime of the circumstances of the standard;For the same concept which appears in the former law and the criminal law,the judicial organs often rely too much on the professional judgment in the administration,which leads to the absence of the independent interpretation of the criminal law and the false advertising crime.When explaining the "serious circumstances" in the crime of false advertisement,the competent organ does not pay attention to the characteristics of economic crime,and blindly holds the banner of modesty and restraint of criminal law,which makes the phenomenon of "substitute fines for criminal punishment" occur in a large number.In order to find a way to help allleniate the predicament,this paper studies the punishment necessity of the crime of false advertising through the induction and analysis of the current provisions of the plot crime of the crime of false advertising,first of all,it is clear that the legal interests violated by the crime are dual.That is to say,the order of market transactions and the legitimate rights and interests of consumers,combined with the consideration of the differences in the regulation of economic criminal acts in the criminal law of our country,determine the nature of the concrete behavior of using false advertising as a means of crime in judicial practice.The judgment focuses on whether the legal interests violated by the act and the extent of the infringement are consistent with the purpose of regulation of the crime of false advertising.On the basis of in-depth discussion of the infringement of the legal interests of the crime of false advertising,this paper disagrees with the concept connotation of the standard of "serious circumstances" involved in the "Wei Zexi incident" and other related "serious circumstances".The concept of illegal income and physical disability is defined from the point of view of the purpose of criminal regulation.In order to apply the current interpretation correctly,it is also necessary to insist on the position of homogeneous interpretation of "peddling the background",which is helpful to promote the judicial judges to delineate the criminal circle of false advertising crime reasonably while exercising their discretion.Finally,this paper analyzes the interdependence between administrative law and criminal law in the crime of false advertisement,which is a double illegal legal offense,in view of the disconnection between the judgment of plot offender in administrative field and judicial field,which is widely existed in practice.The relationship which is difficult to completely separate is more prominent.From the point of view of system design,some suggestions are put forward to help the administrative law and criminal law to realize the effective connection on the judgment of false advertising behavior.To improve the maneuverability of the crime of false advertisement in the judicial application,and to avoid the occurrence of "substitute fines for criminal punishment" in the handling of individual cases,with no distinction between criminal law and administrative law.