Several problems identified crime of illegal business
【Summary】 intercept Elements of criminal legislation is enacted to intercept the perpetrators have to plug leakages Elements of French functionality. Illegal Operation's "Elements of interception" performance
of "or any other type." One-line amendment to the Penal Code and the Penal Code the crime of illegal business to make changes to further clarify the judicial interpretation constitutes a crime. Limited to "other serious illegal behavior disturbed the market order" set up the scope of crime, while judicial interpretation is necessary to clear the illegal publication and the single criminal act of illegal trade in foreign exchange behavior and disrupt telecommunications market rank ... ...
Illegal crime refers to violations of state regulations, engaging in illegal business activities, disrupted the market order, serious behavior. The crime of illegal business in 1997, the crime of criminal law in the decomposition of speculation formed on the basis of new charges. Scholars have suggested that the Criminal Code adopted in 1997, (Note: See Zhao Bingzhi editor: "Research on the Criminal Code amendments," the Chinese People's Public Security University Press, 1990,263,264 pages; Dao Luan,
etc. Editor: "The modification and application of criminal law", People's Publishing Association, 1997,485 pages.) decomposition of speculation crimes, an additional crime of illegal business. One-line amendment to
criminal law and criminal law have right to do illegal business appears
set to further judicial interpretation of the crime of illegally enrich "other" behavior of the content that constituted the crime of illegal business complicated situation, leading to many difficulties identified by the crime of illegal business. This article is based on this, according to the relevant legislative provisions and judicial interpretation of the crime of illegal business further elaborated with a view to clarifying the composition of the crime of illegal business, and in judicial practice, to
determine precisely the crime of illegal business.
First, the crime of illegal business, "Elements of intercept"
Elements of interception, is a technical point of civil law the elements of the legislative classification form, which refers to the
development of criminal legislation that has to plug leakages offenders breaking the law to intercept the composition of functional elements in the form of expression, "or any other type", "hold-type", "minimum
requirements type. (Note: see Chu-Huai-sik with:" Criminal integration and
the relationship between criminal law theory ", Beijing University Press, 1996,358,359 page.) Model Law as a tight sub-provisions of the legislative
approach, the interception is constituted Elements on improving our
criminal legislation more empirical sense. to take the crime of illegal business lists should be open simultaneously with the general type of approach to the performance of the objective elements of content, there is a basic component constitutes two sentences with increasing amplitude. In other words, the objective elements of the crime of illegal business successfully applied the intercept Elements of the legislation, expressed as "or other types." Penal Code adopted in 1997 is the first listed
illegal acts of two kinds of specific ways, the times to "other serious illegal behavior disturbed the market order "unfinished lists general illegal behavior. 1999 amendment to the Criminal Code to further increase the" illegal securities, futures, insurance the circumstances are serious, "as the third behavior.
1997 of the Penal Code Article 225 of the first two kinds of 1,2 provides that illegal acts of ways: operating without a license laws and administrative regulations, monopoly restrictions on the sale of goods or other items; the sale of import and export licenses, import and export certificate of origin, as well as other laws and administrative regulations of the operation license or approval documents. However, judicial practice, illegal means like different conditions, it is difficult to be a clear list-style summary. Thus, the Penal Code article
225, paragraph 4 to set the "interception of constituent elements," that is disrupting the market order of other serious illegal behavior. The
general requirement is to compensate for the above-mentioned two pairs of
illegal acts enumerated set. The reason for the general criminal law provisions in order to focus on the fight against illegal acts of the former two categories at the same time so as not to disturb the market order of other serious illegal acts of persons to justice. (Note: See Huang Jing-ping editor: "the crime of disturbing the market order," the Chinese People's Public Security University Press, 1999,172 ~ 173.) In
order to meet the economic life of the development and changes to the legislative technique to the provisions enumerated in combination with the general approach, easy to effectively crack down on illegal crime.
Elements of interceptor to intercept the perpetrators have to plug
leakages breaking the law functions, but the administration of justice in the use of existing risk of abuse. (Note: see Chu-Huai-sik with: "Criminal
integration and the relationship between criminal law theory", Beijing University Press, 1996,358,359 page. Professor Chu, Elements of the use of intercept must follow two rules: First, less than a last resort when you do not; second law of itself should be able to express or implied "other" the connotation and extension.) Thus, it is necessary to "disturb the
market order of other serious illegal acts" to do a limit. In theory, constitute the crime of illegal business conduct illegal business need to
have two basic characteristics: First, an administrative law nature, that is in violation of national laws and administrative regulations of the prohibitive or restrictive regulations, administrative law is a necessary prerequisite for a crime. Secondly, seriously disrupted the market order (including the order of market access, market competition order and the
order of market transactions) and to achieve the degree of social harm of crime. Serious or not, need to circumstances and consequences of hazards to be qualified. A specific extension, different scholars on the crime of illegal business objects made of different limits. (Note: see Liu Chen Editor: "The new Criminal Code offenses pass new problems and interpretation", People's Publishing House, 1997,621,622 pages; Zhou Luan, single-length cases, ZHANG Si-Han editor: "The modification and
application of criminal law", People's Publishing Association, 1997,489 pages; but Wei: "On the crime of illegal business", in "Law and Business Research," 1999 (2).) We believe that there is no need to list may also be an artificial means exhaustive "other seriously disturbed the market order of the illegal business behavior "of the act. Abolition of speculation as a crime of illegal operation of the new post-crime covers a wide range of
high frequency cited, in particular article 225, paragraph 4. As with the
Penal Code does not expressly provided for greater social harm of illegal acts of the legal basis for conviction, it is not considered to be the pockets of crime, but the pockets of judicial practice, play a role. Therefore, how to understand and apply to "other serious illegal behavior disturbed the market order" requirement to prevent the illegal operation of an arbitrary expansion of a new "pockets of crime" and thus undermine the foundations of legality. This is the legislators, the judiciary and
scholars should be a common concern. (Note: See Chen Zexian: "Some Problems of illegal operation", contained "new research and application of the Criminal Code (Criminal Law Research Association 1999 Annual Meeting Proceedings)", the Chinese Procuratorate Press, 2000,519 ~ 522.) We view,
finds that the crime of illegal behavior should be based on laws and regulations in the Chancery Division, to grasp the offense of the crime of illegal business elements of the quality and composition of the real
economic life, the conduct of a specific identification.
Second, identification of illegal publishing behavior
Illegal publishing behavior is published in violation of state regulations to engage in publishing, distribution, reproduction distribution industries such as publishing activities, including publications, programs and publications illegal content is illegal. Generally speaking, the publication of the contents of illegal behavior that publications published in non-compliance with normal procedures, that
the publication process in illicit activities.
(A) the crime of illegal business practices found illegal publishing
With regard to whether the act constitutes a crime of illegal business of illegal publishing of the identified issues, Supreme People's
Court "on the trial of criminal cases of illegal publications, a number of issues specific application of the interpretation of the law" to define the two examples of illegal publishing of the "other serious illegal behavior disturbed the market order ": First, publishing, distribution, copying issue with the reactionary nature of the political dynamic nature of the political content of publications, pirated pornographic materials and other serious harm other than the social order and disrupting the
market order of the acts of illegal publications; two are illegal engaged in publishing matter of publishing, printing, copying, distribution operations, seriously disrupting the market order, the circumstances are especially serious conduct. The former for the publication of the contents of illegal publications, which is illegal publications for the publishing process. Before the enactment of judicial interpretation, some scholars have considered all the circumstances of pirated away from the illegal
publication of serious acts of illegal programs, are advised to crimes punishable by illegal. (Note: See Houfeng Mei, Zhang Jinlong: "Crime and Punishment of illegal publishing behavior", in the "new criminal laws and difficult of research and application (Criminal Law Research Association 1998 Annual Meeting Proceedings)", the Chinese Procuratorate Press, 1999,518 page.) This view is more relevant. However, the strict interpretation of the provisions of illegal publications, the need for the
publication process to constitute a particularly serious crime. Therefore, the case that the publication process for the second offense constitutes a crime of illegal business publication of the existence of heavier composition, worth considering. We tend to act only in the basic
composition. The pursuit of economic benefits for the publication of a simple pass with the others to seek prior sale, lease or illicit transfer of the publication of the name, ISBN, Issues, version number, to explain the provisions of such acts constitute the crime of complicity in illegal business.
Judicial interpretation of the illegal publishing the contents of illegal acts constitute the crime of illegal publications, has made clear that: (1) unit of crime and the conditions of natural persons convicted of
crime are different standards. Large-scale illegal publishing unit of
behavior, cause serious harm to explain the provisions of a more natural unit of illegal acts constitute the crime of illegal publishing the higher
the amount of the standard. (2) the amount of conviction the conditions of equal importance with the plot. Are guilty of the crime of illegal business circumstances, to the amount of timing factors, an important criterion but not the only standard, the amount, quantity close to the
starting point but there are certain circumstances constitute a crime of illegal business. (3) the amount of conviction to adapt to the situation of crime-type diversification. Taking into account in practice there may not be able to profit illegally or even losses, bankruptcy, the amount of standards and operation of mining the amount of illegal income the amount of choice one way. As long as the amount of two kinds, one of the conditions to achieve a conviction constitutes a crime. (4) measurement
methods diversified and rich operational. In view of some cases management can not measure the amount or the amount of illegal gains to explain the provisions of other measurement methods (for example, according to copies of newspapers, periodicals according to the present, book by book, audio
and video publications, according to Zhang). (5) The conviction of principle and flexibility of the conditions. A certain amount of explanation provided for the range, also requires the provinces,
autonomous regions and municipalities Higher People's Court according to local conditions and social security conditions in the statutory amount, within the range of quantitative criteria to determine the local implementation of specific standards, shall be reported to the Supreme
People's for the record. These amounts and number of the provisions of the publication of the content found illegal publications constitute the crime of illegal operation of an accurate standard. (Note: It should be noted that these quantitative factors far as publishing the contents of illegal publications, publication of illegal publications, procedures do not apply the above provisions. Sun defense: "" on the trial of criminal cases of illegal publications, the specific appl