论非法经营罪的法益

Study on the Legal Interest of the Crime of Illegal Business Operation

解释刑法规范需要以刑法法益为指导,而刑法法益的确定,应当遵循罪刑法定原则的要求。文章从分析关于非法经营罪法益的不同观点入手,认为将市场秩序作为非法经营罪法益,对解释非法经营罪不具有指导作用,并导致非法经营罪的口袋化。通过对非法经营罪的罪刑规范的分析,文章提出非法经营罪的法益应当是市场准入秩序。

The legal interest of the criminal has a function of guiding the interpretation of criminal law; besides, to conclude the legal interest of the criminal law, we should also follow the principle of legally prescribed punishment for a specified crime. This paper proceeds from analyzing the different viewpoints on the legal interest of the crime of illegal business operation, and puts forward that taking market order as the legal interest does not have the function of guiding the legal interest of the crime of illegal business operation, which leads to the broad definition of the crime. Combing with the provisions, the legal interest of the crime of illegal business operation is the order of market access.