Study On Save Clause Of The Crime Of Illegal Business

The crime of illegal business operation evolved from the crime of profiting by speculation when the criminal law was amended in 1997.The introduction of illegal business crime provides a guarantee for the stable development of economic transformation after China’s reform and opening up.In addition,the crime also to a certain extent to solve the speculation of t his "crime" caused by the harm.However,with the rapid development of the economy and the deepening of the reform and opening up,there are other behaviors affecting the economic and social order that cannot be predicted when the criminal law is revised i n the market economic activities of our country.In order to combat these new criminal activities,the newly issued judicial interpretations frequently include them in the scope of control of illegal business crimes,which also leads to the continuous expa nsion of the regulation and extension of illegal business crimes with the release of judicial interpretations,resulting in the proliferation of judicial practice citing this crime.Since 2004,the cases of illegal business crimes have basically been in a balance,with slight fluctuations in each year.However,the number of cases among the provinces is extremely unbalanced,the eastern coastal provinces with high economic level and large population are far more than the central and western provinces.The determination of illegal business crime covers a wide range of fields and almost all fields of market economy.Judicial practice does not strictly follow the constraints of the blank crime in the criminal law,and the proportion of reference to the provisio ns of the state in the judgment is very low.The application rate of probation is higher,and the risk of miscarriage of justice can be transferred through lenient sentencing.Through the analysis of this kind of cases in the judgment of local courts and t he review of the court,the author concludes that there are three problems in the application of law of illegal business crime,which are: the definition of "state provisions" of illegal business crime,the determination of "other" business activities and the judgment of serious circumstances.As for the first point,the "violation of state regulations" in the crime of illegal business operation should be interpreted in a restrictive way,which is limited to laws,decisions or administrative regulations,in addition to other local regulations and departmental rules.A departmental rule "approved" or "approved" by the state council does not change the fact and legal effect of its regulations,and does not belong to the "state provisions" in the criminal law;Only in violation of the law,administrative regulations on the licensing and licensing of these two types of administrative licensing,it is in violation of state provisions.For the second point,the legal interest of the crime of illegal operation is the market access system.The connotation and denotation of "other behaviors" should follow the same interpretation rules and be explained by the illegal business behaviors listed in the preceding three articles.Judicial interpretation has the risk of ex po st facto law,which should strictly abide by the rules of criminal law interpretation and cannot be extended.Finally,the determination of "serious circumstances" should adopt a comprehensive standard based on the amount and considering other circumstances.The number of times of administrative punishment should not be regarded as the constitutive elements of illegal business crime,but as the circumstances of sentencing.The criminal law should be modest and restrained.If it does not reach the level of criminal law regulation,it should give full play to the role of administrative punishment law.