On The Expansion And Response Of Illegal Business Crime

Since the introduction of the Criminal Law in 1997,the crime of illegal business operation has been amended three times,and more than twenty judicial interpretations have been issued from 1998 to 2022,so that the scope of the crime of illegal business operation has been expanded,and the disadvantages of violating the legislative intent of the crime and harming individual rights and interests and market freedom inevitably appear in judicial practice.This paper discusses how to appropriately control the scope of application of this crime and avoid the improper expansion of this crime through a reasonable legal hermeneutic approach.The main structure of this paper is divided into five parts.In the first part,the background and significance of the research on illegal business operation are explained,and the methods of literature analysis,empirical research and normative analysis are clarified.Through reading the domestic and foreign literature,we clarify the different views of scholars on the existence or abolition of the crime of illegal business,the protection of legal interests,the existence or abolition of the subordinate clause and the scope of "state regulations",with a view to providing reference for the content of this crime.The second part of the paper discusses the expansion of the crime of illegal business from two perspectives.First,in criminal legislation,the legislature has expanded the scope of the crime three times by way of amendments,expanding the scope of the crime to include securities,futures,payment and settlement of funds,and other financial fields;second,in judicial interpretation,the highest judicial authorities have promulgated several judicial interpretations,incorporating new types of business practices that do not fall within the boundary of the crime of illegal business into the scope of regulation of the crime.The above two aspects have expanded the crime of illegal business operation.In the third part of this paper,we analyze the representative cases of the crime of illegal business operation and conclude that the crime has an unclear definition of the legal interests protected by the crime of illegal business operation,the tendency to expand the application of "national regulations",the unreasonable standard of "seriousness of the circumstances",the consideration of "serious disturbance of the market order",and the "serious disturbance of the market order".The analysis shows that there are problems with the definition of illegal business,the expansion of the application of national regulations,the unreasonable standard of "seriousness",the incomprehensive standard of "serious disturbance of market order",and the recognition of illegal business as illegal business if it does not meet the attributes of illegal business.The fourth part of this article discusses the harm of the illegal business crime of improper expansion.The lack of clarity in the composition of the elements of the crime of illegal business has laid a "hidden danger" for the improper expansion of the crime.The expansion of the crime is contrary to the criminal law and the principle of modesty,and undermines the rights and interests of individuals and the value of freedom of the market economy,and makes it difficult for the judiciary to determine the crimes and misdemeanors in judicial practice,which increases judicial costs and is not conducive to the establishment of a just and reasonable judicial order.Based on the analysis of the causes of the expansion of illegal business crime,the fifth part of this paper proposes countermeasures against the expansion of illegal business crime.First,it is clear that the protection of the legal interest of the crime is the order of access to market subjects,the author from the type of administrative license created by law and the first three illegal business crime on the basis of similar interpretations of the legal interest of the protection of the fourth bottom clause of the legal interest that the protection of illegal business crime is the order of access to market subjects.The second is to strictly grasp the boundaries of "state regulations",the State Council approved departmental regulations,laws or administrative regulations authorized by the departmental regulations excluded from the scope of "state regulations" can cover.The third is to amend the criteria for determining "aggravated circumstances".This paper elaborates on the criteria for determining "aggravated circumstances" from three perspectives,namely,the removal of the criteria for determining "aggravated circumstances",including the removal of the elements of bad social influence and preventive penalties;the addition of the criteria for determining "aggravated circumstances",namely The addition of the criteria for determining "aggravated circumstances" include the circulation of goods,the cause of market disorder,and the type and quantity of goods;the distinction of the criteria for determining "aggravated circumstances" requires the distinction between ordinary and special industries,and between unit crimes and individual crimes.Fourth,the reasonable determination of "serious disruption of market order",this paper believes that in the determination of this standard from the independent determination of "serious disruption of market order" and "serious circumstances" and to clarify the relationship between criminal law In this paper,we believe that in determining this standard,we should consider the standard from two perspectives: independent determination of "serious disruption of market order" and "seriousness of circumstances" and clarification of the relationship between criminal law and administrative law.Fifthly,it is necessary to strictly regulate the illegal operation behavior by strengthening the judicial staff’s knowledge of illegal operation behavior and improving the guidance mechanism of such cases.This paper is written in order to play a reference role in the accurate application of this crime in judicial practice,to better protect the rights and interests of market subjects and the free and orderly development of the market economy,and to promote this crime in line with the new requirements of the development of the socialist market economy.