王力军非法经营再审改判无罪案的法理问题评析

Legal Issues Behind the Commutation of Wang Lijun’s Sentence from the Crime of Illegal Business Operations to Acquittal

原审判决判定王力军的行为构成非法经营罪,从社会危害性方面来看并没有合理的依据。王力军的行为不但不具有社会危害性,反而有利于促进正常的粮食流通并完善其流通秩序。原审判决由王力军的行为具有行政违法性得出其行为具有刑事违法性这一推断结论,显然忽视了对其行为是否具有刑法中社会危害性的实质考察,由此造成了错误的有罪认定。再审判决仍然坚持认为王力军的行为有着一定程度的社会危害性,并以《刑法》第13条“但书”的规定作为将王力军的行为予以出罪的依据,这并没有从根本上解决原审判决所存在的问题。从本案的改判过程可以得到的启示是:司法机关在对犯罪的认定时应该坚持形式与实质相统一的标准,即坚持以刑事违法性作为认定犯罪成立的形式标准,坚持以社会危害性作为认定犯罪成立的实质标准,这样才能够做到科学地定罪。

Wang Lijun’s conviction for crime of illegal business operations in the first trial lacks sufficient legal basis from the perspective of social harmfulness.On the contrary,Wang Lijun’s acts not only are socially unharmful but also are advantageous to promoting the normal order of grain circulation.In the original judgment,Wang Lijun was convicted for criminality on the basis of the conclusion that his acts constituted an administrative offence.This obviously ignored substantive investigation on whether his acts had social harmfulness as stipulated in the criminal law,which finally led to the wrong conviction.The retrial decision still insisted that Wang Lijun’s acts had a certain degree of social harmfulness,and cited the provision of"provisos"in Article 13 of the criminal law as the basis for ascertaining the crime of Wang Lijun’s acts,which did not fundamentally solve the problems existing in the original judgment.Revelations from the process of this case being redressed are that the judiciary should adhere to the criterion of unity between form and substance in the determination of crime,that is,adhering to the formal criterion of conviction based on criminal offence while sticking to the substantive criterion of conviction based on social harmfulness,so as to achieve a scientific conviction.