“放管服”改革背景下无证经营成品油行为的刑法规制

Criminal Law Regulation of Unlicensed Operation of Refined Oil under the Background of"Decentralization,Regulation and Service"Reform

“放管服”改革使成品油市场由行政垄断向放宽市场准入转变。无证经营成品油行为作为司法实务中第二大无证经营行为,一般按照未取得“三类批准证书”或者危险化学品经营许可证被认定为非法经营罪;但在2020年商务部废止《成品油市场管理办法》后,司法机关对无证经营成品油行为依照这两种路径入罪都存在问题。《刑法修正案(十一)》新增危险作业罪,为司法实务中规制无证经营成品油行为提供了新的路径,不仅与规范保护目的相符合,也能达到罪责刑相适应。办案机关应时刻关注前置行政法规的变化,避免与国家市场经济体制改革的方向相悖;也要注重运用刑事立法新增设罪名对“口袋罪”进行分流,适用新罪名时需尊重立法原意进行目的性的限缩解释,维护罪刑法定。

The reform of"decentralization,regulation and service"has transformed the refined oil market from an administrative monopoly to a relaxation of market access.As the second largest unlicensed operation in judicial practice,unlicensed operation of refined oil is generally recognized as the crime of illegal operation according to the failure to obtain the"Three Types of Approval Certificates"or"Hazardous Chemicals Operation License".However there are problems with criminalization according to these two paths since the"Measures for the Administration of the Refined Oil Market"which was issued by the Ministry of Commerce is repealed in 2020.The crime of dangerous operation was added to"Amendment(XI)to the Criminal Law",which provides a new path for regulating unlicensed operation of refined oil in judicial practice.It is not only consistent with the purpose of normative protection,but also meet the requirements of the principle of suitable punishment to each crime.In the background of misdemeanor legislation which lower the threshold of crime and actively add misdemeanors,case-handling agencies should always pay attention to changes in pre-existing administrative regulations and avoid conflicts with the direction of the state s reform of the market economic system.At the same time,we must also attach importance to the newly added crimes in criminal legislation to divert"pocket crimes".When applying new crimes,we must respect the original intention of the legislation and carry out limited and purposeful interpretations,so as to maintain the principle of a legally prescribed punishment for aspecified crime.