Outlook on order of order: dilemma and breakout

In the development of the overall law order, it is necessary to not only innovate the concept of law and interest, but also need to regulate the purpose of protecting the purpose of economic criminal law with dual attributes of administrative law and criminal law, and to solve the problem of legislation in the "de -guilty" method. Although in a substantial point of view, the "interest and benefit of interests" and the purpose of standardizing protection still have certain abstraction and subjectivity, from the perspective of the referee results, this method will show social justice, reach judicial consensus, shape the judicial consensus, shape the judicial consensus, shape shape, shape shape And strengthening the awareness of the law and regulating has a positive effect.

The essence of crime is that legal benefits are violated, the connotation of economic order is abstract, and it is a carrier of values ​​and interests. It is not a specific legal interest. Therefore, the "order of order and interest" is often difficult to give play to the criticism and criminal shrinkage function of the system of legal interests on the economic criminal law, and it is easy to lead to pockets and formalization of economic crime. To this end, it is necessary to combine the legislative performance of economic criminal law in combination with the "order of order and interest", reflect on the predicament of legislation and justice, and break through and transcend the order of order and interest in order through the two dimensions of theory and reality. Function of sexual standards.

Connotation and expression

The starting point and guidance idea of ​​legal benefits as the formation of criminal composition, it determines the punishment boundary of crime. In other words, legal benefits are a substantial reason for criminal punishment. In the context of "order of order", the focus of the criminal law is to regulate the dislocated behavior of destroying the order of the market economy. It is the meaning of violations of order or simply obedience to administrative regulations as the connotation of essential illegal is the meaning of "order of order and interest". Back to the legislative process of my country's economic criminal law, all reflect the thinking concept of "order of order and interest". From the beginning of the criminal law in 1979 to the comprehensive amendment to the criminal law in 1997, to the amendments to the criminal law in 1997 in the past two decades, the legislation of economic criminal law in different periods shows a clear tendency to administrative control and control. Essence

First, the economic criminal law network is tight. In each economic criminal law legislative activity after the criminal law was awarded in 1997, the legislature has been more or less crimes of economic crimes, and the total number of economic crimes is therefore continued to grow. Since the new Criminal Code in 1997 took effect, the legislature has made eleven amendments to it and promulgated the amendments to the criminal law. Among them, the revision and new addition of the crimes of economic criminal law occupied a large proportion. In the process of economic criminal law legislation, the phenomenon of criminal law involved in advance often appeared. For example, simply deceived bills and guarantee behaviors have not been regulated as administrative violations, but the Criminal Law Amendment (6) directly increased it to "deceived bills and vote for redemption. The crime of financial ticketing "and as one of Article 175 of the Criminal Law.

The second is to expand the scope of regulation of economic crimes by adjusting the constituent elements of some crimes. During the past amendments since the Criminal Law was awarded in 1997, the expansion of the scope of economic criminal law regulation was also manifested as the scope of regulation and control of the legislative authority expanded. For details, the legislature agencies have adjusted new crimes, expanding behavior subjects, increasing behavior methods, expanding the objects of behavior, and reducing crime conditions, and more economic missing behaviors are included in its regulatory scope. For example, Article 5 of the Criminal Law Amendment (1) "adds futures transactions to the type of securities transaction behavior in fabrication and disseminating false information trading of securities transactions, and enrich the behavior of fabricating and spreading false information of securities transactions. By adjusting the constituent elements of these crimes, the legislature is more "hidden" to expand its regulatory scope on the basis of not increasing crimes. Therefore, the economic criminal law regulatory model shows a unilateral protectionist position as a whole, emphasizing the legislative control of economic order and its management subject, which is the characteristic of the "order of order" in specific practice.

Dispute and dilemma

The "order of order and interest" is the mainstream view of the current academic community, but because the connotation of order is unclear, it is also facing too abstract difficulties. In the context of economic criminal law too much attention to order control, economic freedom can only be retreated after order management and control, forming a priority and freedom of criminal law protection model. However, with the gradual improvement of my country's socialist market economy system, the "concept of order and benefit" in traditional economic criminal law is gradually difficult to meet the needs of the market economy deepening. Under the value positioning of the "order of order", China's criminal law is facing many dilemma.

First, the connotation of economic order is unclear, and the standards of crime are blurred. It means that the destruction of the economic order as the criterion means that most criminal acts are only unheard of national economic administrative regulations. In the logic of the "three paragraphs of judicial referees", the prerequisite often causes unclear problems. For example, the legislators in illegal operations adopt a blank crime, and conducted specific provisions of the type of behavior type of "seriously disrupting the market economy order" through a single criminal law, amendments to the criminal law, and judicial interpretation. However, "Although there are many regulations, the composition of illegal operational crimes not only has not gradually become clear, but it is increasingly blurred." Faced with new types of Internet financial criminal acts in the fields of P2P online loans and "routine loans", the legislature has to frequently amend the law to meet the standards of maintaining normal economic order, damage the integrity of the Criminal Code and weaken the Criminal Code authoritative.

The second is the legal orientation of "pan -order", so that the legislation of economic criminal law has problems such as prevailing, symbolization, and pocketization. In the process of the legislation of economic criminal law, before the pre -laws such as civil and commercial law, economic law, and administrative law have not yet had corresponding provisions, the criminal law involved in advance directly stipulated it as a crime, such as the "Criminal Law Amendment (6)" new additional additional additions "Crime of deceiving bills, financial ticket certificates". For those criminals such as registered capital, false investments, and crimes of trustee property, such as false economic crimes, false investments, and trusted property crimes, they are less or even applicable. If these crimes are not effective and do not have qualitative legal benefits, they cannot prevent the average person who has not crime. At this time, the criminal law only meets the needs of administrative governance. The pocketization of economic prisoners is also serious. The current crime of representative pockets in the current criminal law includes illegal operation and damage to production and operation. For the reason, the composition of economic crimes depends on administrative regulations and administrative tailoring. The specific legal and benefits are lacking, and the criminal law even fully belongs to administrative law. Turn and breakthrough

In the doctrine of criminal law, the legal interest itself has dual functions that are explained by system criticism and constituent elements. Pursuing the "formality" of the crime with overall order, and ignoring specific legal benefits, it may lead to the lack of "substantial" justice, and it is difficult to achieve the basic function of legal interests. The traditional "order of order" can no longer adapt to the current development of social ecology and the adjustment of the national economic model. Therefore, the key to the steering concept and judicial practice of economic criminal law is to reshape the concept of legal benefits and restrict the legal orientation of "general order".

First of all, the concept of legal interests can be referred to the concept of interests in the European Criminal Law, and from order to the interests. The connotation of interests is mainly interpreted as economic freedom. Specific to the field of economic criminal law, economic freedom refers to whether market participants participate in economic activities and the choice of freedom of economic transaction methods, and can be concretely in cases. Economic freedom is not only the prerequisite for market entities to participate in economic activities, but also the inherent requirements of ensuring the concept of criminal law. In the future, the interests of economic freedom as the law of economic criminal law will be theoretical and realistic.

Secondly, in the interpretation of the criminal law, it has a substantial limit on the purpose of protecting the purpose of the protection. Standard protection goals belong to a value judgment, which emphasizes the extent and scope of the benefits of the protection of the law. In the economic criminal law, French interests can often only confirm the scope of the legislative articles in form, but it is difficult to determine that specific behavior methods are the types guarded by the law and interest infringement, and the purpose of regulating the purpose of protection can substantially define the behavioral specifications. For example, the crime of illegal business must be based on the systematic changes of society, economy, and the rule of law, and conduct a comprehensive measure of its business behavior. In a specific context, whether the business behavior is in line with the purpose of the criminal regulations, and analyzes whether the purpose of the administrative regulations and the purpose of criminal law standards is synthesized. The "thinness of legal benefits" of the economic criminal law determines that it is necessary to interpret the purpose of economic criminal behavior to limit the expansion of pocket crimes.

Finally, the "de -guilty" mechanism is constructed to solve the problem of legislation. In the current economic criminal law specifications, some economic charges are gradually losing the actual conditions and values ​​of continuity. For example, for those acts of minor economic criminal acts and crimes of high -profit transfer, forging, altering stocks, companies, corporate bond crimes, false capital contributions, escape capital crimes, etc., can no longer be used as crimes through the crime mechanism. Behavior processing.

In short, in the context of deepening the reform of the economic system, economic criminal law needs to adapt to the changes in economic structure and social structure. Similarly, legal benefits also have the ability to adapt to the development of the times. In the development of the overall law order, it is necessary to not only innovate the concept of law and interest, but also need to regulate the purpose of protecting the purpose of economic criminal law with dual attributes of administrative law and criminal law, and to solve the problem of legislation in the "de -guilty" method. Although in a substantial point of view, the "interest and benefit of interests" and the purpose of standardizing protection still have certain abstraction and subjectivity, from the perspective of the referee results, this method will show social justice, reach judicial consensus, shape the judicial consensus, shape the judicial consensus, shape shape, shape shape And strengthening the awareness of the law and regulating has a positive effect.

(Author Unit: School of Criminal Judicial at Zhongnan University of Economics and Law)

Source: China Social Science Network-Journal of Social Sciences of China

Author: Yuan Zixuan

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