Research On Judicial Application Of Illegal Business Crime

In recent years,many problems have emerged in the application process of the crime of illegal business operation in practice,which has also triggered extensive discussions in the academic circles,especially the expansion and application of this crime.The crime of illegal business operation adopts the legislative method of the "bottom-covering clause",which is therefore very general.There are two views in the academic circles on the existence or abolition of the "bottom-covering clause".This article is more in favor of the limited solution of the judicial interpretation in the "affirmative"theory,and the interpretation of the "bottom-covering clause" by the judicial interpretation,because the types of economic crimes are changing with each passing day.Taking this view can combat crimes more comprehensively,and in practice,China’s Through empirical analysis,this paper makes a detailed analysis of the tendency of expansion and application in combination with cases,mainly including the higher application rate of general clauses,the problems of ignoring the protection benefits of illegal business crimes in judicial interpretation,the expansion of the scope of application of"state regulations",the unclear identification standard of "serious circumstances",and the relatively simple judgment documents.This article proposes that the application of the crime of illegal business operation should be limited,and puts forward suggestions from the aspect of judicial practice.Specifically,on the basis of strictly following the principle of legally prescribed punishment for a specified crime and the principle of modesty of criminal law,judicial organs can only apply the”beat-the-bottom" clause for conviction and sentencing if there are clear provisions in judicial interpretation.Abide by the provisions of article 96 of the criminal law,and strictly grasp the scope of application of "state regulations";Following the theory of limited judicial interpretation,judicial organs should strictly carry out judicial interpretation within the meaning included in the legal provisions.Clarify the determination standard of"serious circumstances"and advocate taking the amount of illegal business as the judgment standard of serious circumstances;Correctly understand the legal interest content of illegal business operation crime protection,and advocate adopting the market qualification admittance theory;Strengthen the reasoning function of legal documents.