Research on the Act Requirement of Business Operation in the Crime of Illegal Business Operation
In view of over-broad application of the crime of illegal business operation,it is necessary to strictly define its elements and pay attention to establishing its mechanism of decriminalization.Act of business operation is an integral part of perpetrating conduct in the crime of illegal business operation,and how to define it reasonably is a problem that must be emphasized in its dogmatic construction.The common characteristics of act of business operation are as follows:it should be involving business activities in the field of economy,being directed to business content rather than business mode;there must be a certain lawful business corresponding directly or indirectly;its inherent risk needs to show the nature of"disturbing market order",it must be act of business operation itself that constitutes a"violation of state regulations".Act of business operation should indicate the orientation of management.The so-called orientation of management means that act of business operation contains economic benefits,with sale of goods or services as core connotation,as well as for the purpose of profit,and meanwhile,the actor has a desire to repeat similar behaviors in his mind.On the problem of whether there is an attempted form for the crime of illegal business operation,general answer in the judicial practice of China is negative.However,such a position is lack of rationality,due to an over-broad interpretation of act of business operation and to a result of regarding the crime of illegal business operations as conduct offense.The characteristic that act of business operation should be understood based on sale of goods or services as core connotation determines an existence of attempted form in the crime of illegal business operation.
crime of illegal business operationact of business operationdecriminalization mechanismcrime attemptdisrupting market order
万方数据
维普
