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理论上对于非法经营罪作为口袋罪的诟病,在于“其他严重扰乱市场秩序的非法经营行为”这一兜底性条款含义的模糊性。本文从立法与司法实践中所表达的立场出发,结合刑法教义学的相关理论揭示了“其他”条款的规范含义,即在内涵上其须与国家有关主管部门的相关许可证相关联,在外延上,从刑法与附属刑法的关系上,强调刑法的最后手段性,以此明确了非法经营罪的适用范围。同时,针对理论上关于非法经营罪的存废之争,作者提出,面对变动不居的市场图景,较之于对兜底项的彻底放弃,通过教义学上的解释对非法经营罪进行口径紧缩、边界框定与理性适用显得更为关键与合理。
In theory, criticism of the crime of illegal business as a pocket crime lies in the ambiguity of the implicit meaning of “other illegal business activities that seriously disrupt the market order.” Based on the position expressed in the legislative and judicial practice, this article reveals the normative meaning of the “other” clause in combination with the relevant theories of the doctrine of criminal law, that is to say it connotations must be related to the relevant licenses of the relevant state departments, In the extension, from the relationship between criminal law and subsidiary criminal law, emphasizing the ultimate means of criminal law, in order to clarify the scope of the crime of illegal business. In the meantime, in light of the controversy over the existence and abolition of the theory of illegal business crime, the author proposes that in the face of a changing market scenario, the doctrine of dogma should be tightened through doctrinal interpretation rather than a complete abandonment It is even more crucial and reasonable to define the boundary and reasonably apply it.