非法经营罪的口袋化困境和规范解释路径
发布时间：2018-12-17 06:00
【摘要】：我国1979年刑法规定了投机倒把罪，在这个条文中也将非法经营行为涵盖进来，后来社会发展无需再继续设置投机倒把罪，它进而演变出一个新的罪名，这就是非法经营罪。该罪在罪状的具体设置上仍保留了“其他严重扰乱市场秩序”的弹性规定，规定的空间较大，存在潜在的不确定性。在司法实践中，一般是通过一系列的司法解释来限制弹性空间，面对疑难复杂非法经营行为时，通过不断出台司法解释来进行判断，以此保障正确适用刑法定罪量刑，这样势必会放大非法经营罪的适用范围，像一个永远也装不满的口袋一样越装越大，随之而来的法律困惑也就越来越多。不管行为人的经营是否合法，或者其行为方式是否被法律允许，在没有相应刑法具体规定的情形下，就可能被司法机关认定为非法经营罪，进而受到刑法的制裁。所以说，该罪呈现出“口袋化”特征，模糊了行政违法行为和犯罪之间的界限，不符合我国市场经济的价值取向，并且导致了权力的滥用。然而，法律是灵活的，我们必须要分清什么是行政违法，什么是刑事违法，即到底应受到行政还是刑法的处罚，必须界定清楚，避免各种投机取巧现象的发生。因此，无论是在理论上还是实践中，如何正确理解非法经营罪的本质，，把握好其高度概括的罪状，然后进行合理规范，以避免动摇罪刑法定原则，这些都是值得思考的问题。作为司法机关的一员，更能体会这一复杂而尴尬的现状。为此，笔者将非法经营罪的口袋化困境和规范解释路径作为自己的硕士学位论文。 非法经营罪的设置虽然带来了一系列法律适用问题，但从设置该罪名的初衷和现状来看，仍有相当高的价值。理智思考非法经营罪“口袋化”的原因显得尤为重要。不能一味地否认它存在的价值，或将问题的产生完全归责于立法或者司法，更不能干脆取消该罪名。我国刑法倡导的是罪刑法定原则，刑法的灵活性特性也不能背离该原则，是以它为基础的，也应在该原则的范围内进行，避免出现与该原则相抵触的刑事立法与司法活动。我们要合理限制非法经营罪的各种不确定性规定，使其进入罪刑法定原则的正常轨道，这是立法者、司法者以及社会各界人士都应当共同关注的课题。笔者认为应首先规范司法机关的解释活动；其次是加强立法解释，限制在司法实践中所进行司法解释，严格坚持罪刑法定原则，防止司法解释权滥用，超越立法宗旨，合理限定司法解释所依据的法律文件；最后合理限制非法经营罪的无端司法扩张，以便于遏制该罪“口袋化”趋势蔓延，使其回到应有的正常的轨道上来。
[Abstract]:The criminal law of our country in 1979 stipulated the crime of speculation. In this article, the illegal business behavior was also covered. Later, the social development did not need to continue to set up the crime of speculation, and it evolved into a new crime, which is the crime of illegal operation. The crime still retains the flexible stipulation of "other serious disturbance of market order" in the specific setting of the crime, which has a large space and potential uncertainty. In judicial practice, the flexible space is generally restricted by a series of judicial interpretations. In the face of difficult and complex illegal business behavior, the judicial interpretation is constantly introduced to judge, so as to ensure the correct application of criminal conviction and sentencing. This is bound to enlarge the scope of illegal business crime, like a forever dissatisfied pocket as more and more, followed by more and more legal confusion. Regardless of whether the behavior of the perpetrator is legal or not, or whether the behavior is permitted by the law, in the absence of specific provisions of the corresponding criminal law, it may be recognized as the crime of illegal operation by the judicial organ, and then punished by the criminal law. Therefore, the crime shows the characteristic of "pocket", which blurs the boundary between administrative illegal behavior and crime, does not accord with the value orientation of market economy in our country, and leads to the abuse of power. However, the law is flexible, we must distinguish what is administrative violation, what is criminal violation, that is, should be punished by administrative or criminal law, must be clearly defined to avoid all kinds of opportunistic phenomenon. Therefore, whether in theory or in practice, how to correctly understand the essence of the crime of illegal operation, grasp its highly generalized crime, and then conduct reasonable norms to avoid shaking the principle of legality, these are worthy of consideration. As a member of the judiciary, you can understand this complicated and embarrassing situation. For this reason, the author regards the pocket dilemma and normative explanation path of illegal business crime as his master's thesis. Although the establishment of the crime of illegal operation has brought a series of problems in the application of the law, it still has a high value from the original intention and the present situation of the crime. It is particularly important to think rationally about the reasons for the "pocket" of illegal business crime. We should not blindly deny the value of its existence, or blame the problem entirely on legislation or justice, nor should we simply abolish the crime. What our criminal law advocates is the principle of legally prescribed punishment for a specified crime, and the flexibility of criminal law cannot deviate from the principle. It is based on this principle and should be carried out within the scope of the principle so as to avoid the occurrence of criminal legislation and judicial activities that conflict with the principle. We should reasonably limit all kinds of uncertain provisions of the crime of illegal operation and make it into the normal track of the principle of legally prescribed punishment for a crime. This is a subject that legislators, judiciaries and people from all walks of life should pay common attention to. The author thinks that we should first regulate the interpretation activities of the judicial organs; Secondly, we should strengthen the legislative interpretation, limit the judicial interpretation in the judicial practice, strictly adhere to the principle of legally prescribed punishment for a crime, prevent the abuse of the judicial interpretation power, transcend the legislative purpose, and reasonably limit the legal documents on which the judicial interpretation is based; Finally, the unwarranted judicial expansion of the crime of illegal operation should be reasonably restricted, so as to curb the spread of the "pocket" trend of the crime and make it return to its proper normal track.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
本文编号：2383771
[Abstract]:The criminal law of our country in 1979 stipulated the crime of speculation. In this article, the illegal business behavior was also covered. Later, the social development did not need to continue to set up the crime of speculation, and it evolved into a new crime, which is the crime of illegal operation. The crime still retains the flexible stipulation of "other serious disturbance of market order" in the specific setting of the crime, which has a large space and potential uncertainty. In judicial practice, the flexible space is generally restricted by a series of judicial interpretations. In the face of difficult and complex illegal business behavior, the judicial interpretation is constantly introduced to judge, so as to ensure the correct application of criminal conviction and sentencing. This is bound to enlarge the scope of illegal business crime, like a forever dissatisfied pocket as more and more, followed by more and more legal confusion. Regardless of whether the behavior of the perpetrator is legal or not, or whether the behavior is permitted by the law, in the absence of specific provisions of the corresponding criminal law, it may be recognized as the crime of illegal operation by the judicial organ, and then punished by the criminal law. Therefore, the crime shows the characteristic of "pocket", which blurs the boundary between administrative illegal behavior and crime, does not accord with the value orientation of market economy in our country, and leads to the abuse of power. However, the law is flexible, we must distinguish what is administrative violation, what is criminal violation, that is, should be punished by administrative or criminal law, must be clearly defined to avoid all kinds of opportunistic phenomenon. Therefore, whether in theory or in practice, how to correctly understand the essence of the crime of illegal operation, grasp its highly generalized crime, and then conduct reasonable norms to avoid shaking the principle of legality, these are worthy of consideration. As a member of the judiciary, you can understand this complicated and embarrassing situation. For this reason, the author regards the pocket dilemma and normative explanation path of illegal business crime as his master's thesis. Although the establishment of the crime of illegal operation has brought a series of problems in the application of the law, it still has a high value from the original intention and the present situation of the crime. It is particularly important to think rationally about the reasons for the "pocket" of illegal business crime. We should not blindly deny the value of its existence, or blame the problem entirely on legislation or justice, nor should we simply abolish the crime. What our criminal law advocates is the principle of legally prescribed punishment for a specified crime, and the flexibility of criminal law cannot deviate from the principle. It is based on this principle and should be carried out within the scope of the principle so as to avoid the occurrence of criminal legislation and judicial activities that conflict with the principle. We should reasonably limit all kinds of uncertain provisions of the crime of illegal operation and make it into the normal track of the principle of legally prescribed punishment for a crime. This is a subject that legislators, judiciaries and people from all walks of life should pay common attention to. The author thinks that we should first regulate the interpretation activities of the judicial organs; Secondly, we should strengthen the legislative interpretation, limit the judicial interpretation in the judicial practice, strictly adhere to the principle of legally prescribed punishment for a crime, prevent the abuse of the judicial interpretation power, transcend the legislative purpose, and reasonably limit the legal documents on which the judicial interpretation is based; Finally, the unwarranted judicial expansion of the crime of illegal operation should be reasonably restricted, so as to curb the spread of the "pocket" trend of the crime and make it return to its proper normal track.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
【参考文献】
相关期刊论文 前2条
1 李盛;非法经营罪基本问题研究[J];北京人民警察学院学报;2002年01期
2 陈泽宪;非法经营罪若干问题研究[J];人民检察;2000年02期
本文编号：2383771
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