| In 1997,the criminal law broke down and adjusted the crime of profiteering,which was widely criticized,and set up the crime of illegal business operation to match the development demand of our country’s Socialist market economy.The crime of illegal business operation,because it adopts the legislative mode of “ Blank Count +pocket bottom item”,which is highly generalized and abstract,not only enhances the stability of criminal law in our country,but also causes the ambiguity of the connotation and extension of the crime,this causes the judicial workers to fall into ambiguity in judging cases,which leads to the confusion and expansion of the proper law in the trial practice and seriously damages the judicial credibility of our country.In view of this,the author starts from the background,legislative purpose and judicial evolution of the crime of illegal business operations,so that readers have a “In & Out”of the overall understanding of the crime.Secondly,on the basis of the traditional theory of four elements,this paper discusses and defines the constitution of the crime of illegal business operation.On this basis,and then look back on the practice,examine the actual level of the crime in the judicial recognition of the status quo.Starting from a large number of criminal judgments,using data and cases,this paper objectively presents the problems of “State regulations”appearing in the “Conviction”of the crime of illegal business operation,the “Legislation”of judicial interpretation exceeding authority,the expansion of the types of “Conviction”and the arbitrary application of the law,etc..Finally,on the basis of investigating and analyzing the above-mentioned problems,we propose a path to optimize the judicial determination of the crime of illegal business operations.That is to say,the principle of restraint of criminal law and the principle of statutory punishment should be adhered to at the theoretical level.At the practical level,it is necessary to define the "state".“ Provisions ” advocate“double illegality”,strictly limit judicial interpretations of “convicted”,use similar interpretation rules to identify “other” illegal business activities,strengthen judges’ interpretation and demonstration of the reasons for “convicted”,and give full play to guiding cases Demonstration and other specific measures.Only in this way can we make the judicial determination of the crime of illegal business operation more in line with the original intention of the legislator,and promote the perfection of the criminal law system,so as to better serve the steady development of the Socialist market economy. |
