罪刑法定原则视域下兜底性条款的限界设定——以非法经营罪为视角

Limit Set for Doudi Provisions underling Principle of Legally Prescribed Punishment for through the Specified Crime——Perspective on the Crime of Illegal Business Operations

罪刑法定原则要求法律明确性和禁止溯及既往,以此满足国民预测可能性要求,从而为人们行动自由提供前提性条件。法律的稳定性使得刑法一时难以应对社会情势的变迁,为了严密刑事法网,于是刑法条文中出现了兜底性条款的规定。为了满足司法明确性的要求,司法机关对兜底性条款作出补充解释,使得兜底性条款外延不断扩张,如司法机关对非法经营罪的解释是一明显例证。由于司法解释具有溯及既往的效力,使得国民难以预测自己行为的合法性,从而限制人们行动的自由。为此,应秉持罪刑法定原则,对刑法中兜底性条款作出合理的限定。

In order to meet citizens＇ projection demand, principle of legally prescribed punishment for specified crime demands legal certainty and the prohibition of retroactivity and, it provides prerequisite conditions for the free movement of people. The stability of the Penal Code makes it difficult to deal with the community situation changes. In order to density the criminal law net, the Doudi provisions came into being in criminal law. In order to meet the requirements of judicial clarity, judiciary were interoperating for Doudi provisions, making Doudi extension terms expanded, the judiciary interpret the crime of illegal business operations as a clear example. As a judicial interpretation having retroactive effect, it makes people difficult to predict the legality of their acts, as so to restrict people＇s freedom of action. Therefore, we should uphold the principle of legally prescribed punishment for specified crime and make a reasonable limit for Doudi provisions in the Penal Code.