On The Judicial Application Of The Fallback Clause Of The Crime Of Illegal Business Operation

In recent years,with the rapid development of China’s economy,illegal business activities have emerged one after another,disrupting the stable and orderly market economic order.In order to curb the growing illegal business behavior and crack down on new types of crime,the crime of illegal business operation has been continuously expanded through legislation(amendment to the Criminal Law),judicial interpretation,and arbitrary use of discretion,and the crime of illegal business operation,especially its fallback clause,has gradually become a "black hole" for crimes that disrupt market order and even economic crimes.In this regard,the criminal law theoretical circles have strongly criticized it,and the general theory believes that the expansion and application of the crime of illegal business should be restricted.This paper is a case study paper consisting of three parts.The first part is a brief introduction to the case and the focus of the dispute.This article takes the case of Zhang et al.for illegal business operation as an example,and the focus of the dispute in this case is: whether the defendant’s conduct "violated state regulations",and whether this case should be reported to the Supreme People’s Court and criminalized in paragraph 4 of the crime of illegal operation.The second part is a comprehensive analysis of the case.From the perspective of whether the defendant’s business conduct "violated state regulations" and whether it seriously disrupted the market order,whether the case needs to be reported to the Supreme People’s Court.In this case,the defendant’s conduct violated the relevant provisions of the Regulations on the Administration of Foreign Labor Service Cooperation,which was a violation of administrative regulations and a "violation of state regulations".Whether the defendant’s conduct seriously disrupts the market order should proceed from the essence of the criminal act regulated by the crime of illegal business operation and be subject to similar interpretation rules.Acts that seriously disrupt market order regulated by the crime of illegal business operation specifically refer to improper business and trading activities in violation of the state’s laws and regulations on market supervision and management,and seriously disrupt and destroy the market order of equal compensation,fair competition and equal transactions.Although the defendant in this case violated the state’s supervision and management order of the market to a certain extent,it did not seriously disrupt the market order in terms of the impact of the behavior on the overall market order.Whether this case should be reported to the Supreme People’s Court step by step is discussed from two aspects:the three possible circumstances of reporting at each level and the procedural conditions for reporting at each level.There are three possible situations,namely,a request that constitutes a crime,a request that does not constitute a crime,and a request that constitutes a crime,and the different legal consequences that may arise are described according to the circumstances.With regard to the procedural requirements for a step-by-level request,the people’s court at the higher level has the right to reject the request of the people’s court at the lower level.In this case,the defendant’s foreign labor service cooperation and intermediary conduct did not have clear provisions of laws or judicial interpretations,and should be reported to the Supreme People’s Court in accordance with the provisions of the Notice of the Supreme People’s Court on Issues Concerning the Accurate Understanding and Application of the "State Provisions" in the Criminal Law.The third part is reflections and suggestions.The limited application of the crime of illegal business operation should proceed from both legislative and judicial aspects under the "principle of legality of crime",legislation should adhere to the principle of legality of crime,and the judiciary should also adhere to the principle of legality of crime,so as to achieve the unity of punishing crime and protecting human rights in judicial application.