非法经营罪中兜底条款的必要性分析

The Necessity Analysis of the Bottom Clause in the Crime of Illegal Business Operations

摘要: 非法经营罪对我国社会主义市场经济起到了很大的保护作用，维护了社会经济秩序。但近年来，由于新经济模式不断出现，兜底条款适用的不规范，以及对罪名构成要件的理解偏差等原因，均导致了司法适用过程中非法经营罪的消极滥用现象。要走出这种司法现状，就必须坚持刑法在经济领域的谦抑，要全面检验非法经营罪的构成要件并在判决书中予以说明，要与时俱进地检验特定行为的实质危害，防止形式化的、不适应当今时代的有罪判决。

Abstract: The crime of illegal business operation has played a great role in protecting China's socialist market economy and maintaining the social and economic order. However, in recent years, the constant emergence of new economic models, irregularities in the application of touting clauses, and deviations in the understanding of the constituent elements of the crime have all led to negative abuses of the crime of illegal business operation in the process of judicial application. In order to get out of this judicial status quo, it is necessary to adhere to the modesty of the criminal law in the economic field, to comprehensively test the constituent elements of the crime of illegal business operation and explain them in the verdict, and to keep up to date with the test of the substantial harm of a particular act and to prevent formalized guilty verdicts that are not adapted to the present era.