非法经营罪中“违反国家规定”的解释逻辑——以具体案例为视角的考察

The Logical Interpretation of ‘Violation of National Regulations’ in the Crime of Illegal Business Operations——Investigation from the Perspective of Specific Cases

“违反国家规定”是确定行为构成非法经营罪的前提条件,但并非唯一条件,除此之外,还需要考察行为是否符合《刑法》第225条规定的四项行为方式。行为即便“违反国家规定”,符合《刑法》第225条规定的行为方式,也不一定构成非法经营罪,还需考虑是否存在出罪事由。依据司法解释追究被告人非法经营罪的刑事责任,前提条件是涉案行为符合司法解释的规定。

‘Violation of State Regulations’ is a prerequisite for determining that an act constitutes offence of the crime of illegal business operations, but it is not the only condition. In addition, it is necessary to consider whether the behavior conforms to the four behaviors that stipulated in Article 225 of the Criminal Law. Even if the act violates state regulations and conforms to the behaviors that stipulated in Article 225 of the Criminal Law, it does not necessarily constitute offence of the crime of illegal business operations because there is also a need to consider whether there is any legal exception. The precondition for the defendant to bear criminal responsibility of the crime of illegal business operation based on judicial interpretation is that the defendant’s behavior complies with the provisions of judicial interpretation.