非法经营罪合理性质疑

Query to the Validity of "Crime of Illegal Business Operation

我国刑法第 2 2 5条第 (4 )项为非法经营罪设置了一种高度抽象的空白罪状。这种极为特殊的空白罪状形式 ,导致了刑事司法中非法经营罪的无限扩张。我国刑法中非法经营罪的设立及解释既有违罪刑法定原则 ,也与市场经济的价值取向相悖。在我国全面建立市场经济体制的今天 ,国家刑罚权应尽量减少对经济活动的干预 ,应尽可能以行政处罚、民事赔偿、行业协会的惩诫以及企业自我监督来取代刑罚。

The 225th, article IV in the criminal law is about the crime of illegal business operation. This crime is a highly abstract blank fact of a crime. The special crime fact leaves a large space for the expanding of crime of illegal business operation. In fact, crime of illegal business operation has become a new 'pocket crime', because of the expanding of judicial interpretation and judge's discretion. The establishment and the interpretation of the crime are not only against the doctrine of a legally prescribed punishment for special crimes, but also against the market-oriented economy value. Nowadays, China is setting up the market-oriented economy system comprehensively, so the power of punishment should affect the economy less and less, so the crime of illegal business operation should be deleted, then let a new and more specific crime instead of it.