On The Social Consent Of The Miscellaneous Provision For Illegal Business Crime

As a Miscellaneous Provision for the crime of illegal business operation,“other illegal operations that seriously disturb the market order” is supplementary provision made by the criminal law in addition to the listed elements,which aims to make up for the criminal legislation’s incompleteness and delay,and to flexibly combat the illegal operations with new patterns.At present,the Miscellaneous Provision almost includes all illegal activities in the economic field,so that minor illegal business activities are easily treated as crimes,but as the market plays a decisive role in the allocation of resources,the frequent use of penalty means to punish economic illegal acts is a damage to the legal business environment,it also goes against the original intention of legislation.The theory of social consent based on dualism in the civil law system takes the slight infringement of legal interests as the core,it is an important explanatory principle to exclude the compliance of minor behavior constitutive elements,and through the judgment of social consent,we can exclude minor acts from application of law,which is of positive significance to the construction of the path for freeing minor illegal business operations from sin.The first part points out the practical difficulties in the judicial application of the Miscellaneous Provision of illegal business crime.In judicial practice,the application of the Miscellaneous provision for illegal business crime is rather confused.Specifically,the scope and boundary of “other illegal business behaviors” are blurred and generalized.The recognition of “disturbing market order” is unclear.And the serious circumstances are only based on the amount or quantity,and the absence of the process of legal interest discretion,which lead to the normalization of this crime is gradually lost,so the minor illegal business operations without serious social harm are seen as crime.The second part focuses on the analysis of the reasons why minor illegal business operations are seen as crime.There are many reasons for the criminalization of judicial expansion,from the perspective of the constitution of crime,the uncertainty of the statement of the Miscellaneous Provision increases the risk of crime.From the perspective of illegality,administrative regulations are rigid application which confuses the boundary between administrative violation and criminal violation,and naturally expands the identification scope of criminal violation.Judging from the legislative tradition,the qualitative and quantitative criminal legislation mode limits the exercise of the judge’s discretion,and the quantification of “serious circumstances” by judicial interpretation is mechanical which impedes the differentiated treatment of judicial cases.Under the current criminal constitution system,it is difficult to exclude the minor illegal business operations from the crime.The third part expounds the value of the application of social consent theory to the crime of illegal business operation’s Miscellaneous Provision.As an important interpretation principle of civil law system to exclude the conformity of the constitutive requirements of minor infringement of legal interest,social consent holds that certain infringement of legal interest is inevitable and socially tolerable.Taking the judgement of social consent as a substantial part of substantive constitution of crime in our country to exclude facts and value basis of serious social harm,so as to promote the proviso apply actively,it can not only reveal the nature of illegality of illegal business operation,make up for the deficiency of the constitution of the crime of the Miscellaneous Provision,but also promote the protection of human rights and realize the public recognition of criminal law.The fourth part puts forward the specific path of the judgment of social consent to the crime of illegal business operation’s Miscellaneous Provision.Taking the affiliated business of construction industry as an example,through the judgment of social facts and the measurement of legal interests,it judges the social consent of affiliated business operations and seriously disrupting the market order in fact and value one by one.And excluding the necessity of criminal punishment for affiliated operations that do not have the nature of operation or do not materially disrupt the market order.On this basis,it advocates that the judge should use the discretion to make a judgement of social consent,to realize the unification of the legal effect and the social effect of the application of the Miscellaneous Provision of this crime.