Study on the Legal Application of the 'Bottom Clause' of the Crime of Illegal Operation

摘要

From the "one-dimensional" perspective of "bottom clause" as the research center to the "two-dimensional" perspective of the relationship between "bottom clause" and the principle of clarity of criminal law, this paper establishes the principle of balance between "violating state regulations" and the principle of relative clarity. This imbalance is one of the reasons for the unlimited expansion of the "bottom clause" of the crime of illegal operation, which is mainly manifested in the imbalance between the "bottom clause" and the principle of clarity, the "bottom clause" and the statutory illegal business behavior, the "serious" circumstances of the "bottom clause" and the three principle of clarity. The abolition of the crime of illegal operation and the application of the principle of absolute clarity cannot solve the dilemma of judicial application of the crime of illegal operation. Only by solving the applicable dilemma of the law and judicial interpretation of the "bottom clause" of the crime of illegal operation, and clarifying the balanced relationship between the former and the principle of the clarity of criminal law, can it be available to find the solution path. By perfecting the legal application of the "bottom clause" of the crime of illegal operation from three aspects, namely by restricting the "bottom clause" of the crime of illegal operation and the law application of bottom, the method of analogy reasoning is adopted appropriately, and the legal provisions such as the judicial interpretation related to the crime of illegal operation are cleaned up, which provides a relatively reasonable, pragmatic and appropriate angle.