非法经营罪合理性质疑

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。

Query to the Validity of "Crime of Illegal Business Operation"

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.