非法经营罪规制目的的预设与生成

非法经营罪在实践中存在扩张适用的倾向,被认为是“口袋罪”,对其司法适用有必要进行限缩。传统限缩方法是采取等价解释,但无法对该罪的规制目的予以合理解释。立法者在创制该规范之际并无明确的目的预设,且可能希望该罪的规范保护范围通过自发方式在司法中生成。在整体法秩序发展之中,基于经济、法治等外部系统的变化,非法经营罪除了要保障行政许可制度之外,还应越来越关注对市场调整方式的现实保障。行业性的合规制度作为市场调整的方式,将成为判断非法经营罪的根据。

The Presupposition and Generation of Regulation Purposeof the Crime of Illegally Doing Operation

There is a tendency to expand the application of the crime of illegally doing operation in practice,which is considered as "pocket crime",thus it is necessary to limit its judicial application.The traditional limiting method is to adopt the equivalence interpretation,but it is impossible to give a reasonable explanation for the regulation purpose of enacting such crime.The legislator has no clear presupposition of its purpose at the time of creating this norm,and may hope that the protected scope of the norm on such crime will be generated in the judicial system spontaneously.In the development of the overall legal order,based on changes to external systems such as economy and rule of law,the aims of enacting the crime of illegally doing operation are not only to guarantee the administrative licensing system,but also pay more and more attention to the realistic guarantee of market adjustment modes.The industrial compliance system,as a mode of market adjustment,will be the basis for determining the crime of illegally doing operation.