Tu Longke Researcher and Doctoral Supervisor of the Law Institute of Shanghai Academy of Social Sciences, Deputy Procurator General (on-time) of the People's Procuratorate of Yangpu District, Shanghai, Director of the Criminal Law Research Association of Shanghai Law Society, Ess

Tulongke

Researcher and doctoral supervisor of the Law Institute of Shanghai Academy of Social Sciences, Deputy Procurator-General of the People's Procuratorate of Yangpu District, Shanghai, Director of the Criminal Law Research Association of Shanghai Law Society

Important

1. The departmental law scope dispute

2. The focus of economic criminal law is economic management Criminal Law

3. Criminal Law in the field of economic regulation needs to be expanded legislation

4. Regulating pure transaction behaviors between equal subjects does not belong to the economic criminal law

5. Specific analysis of the scope of economic criminal law

The pre-law of the economic criminal law includes Administrative Law , Economic Law, and Civil Law. The legislative content includes three parts: Criminal Law in the field of economic management, Criminal Law in the field of economic regulation, and Criminal Law in the field of market transaction guarantee. The essence of economic criminal law is to protect transpersonal legal interests. The protection of criminal law in the field of economic management mainly involves traceable transpersonal legal interests, and also includes independence transpersonal legal interests. Criminal law protects independence beyond personal legal interests in the field of economic regulation. Regulating pure market transactions between equal subjects should not be attributed to economic criminal law. Violation of order is not an economic crime; environmental crime is an economic crime; the attribution of the crime of compound legal interest should be analyzed in detail.

The field of basic theoretical research on economic criminal law is full of thorns, and the first problem to be affected is the definition of the concept and scope of economic criminal law. In 1982, the "Decision on Severely Punishing Criminals Who Seriously Destroy the Economy" passed by the Standing Committee of the National People's Congress, for the first time, used the concept of "economic crime" in my country's legislative documents. The article "A Brief Discussion on Economic Crime and Economic Legislation" published in the third issue of " Inner Mongolia Social Science " was first proposed in the academic community of my country. Since then, the concept and scope of economic criminal law in China have been debated continuously, and there has been no conclusion yet. The same is true for foreign countries. Although the research on economic criminal law has lasted for nearly a hundred years, as Professor Toshio Kamiyama said in Japan: "Whether there is no unified concept in academic terms, both inside and outside, it is difficult to determine its common scope." German scholar Professor Hans Schneider believes that it is extremely difficult to clarify a unified and accurate concept for economic crime. In recent decades, there have been no less than 60 concepts about economic criminal law in China, and the concepts of foreign economic criminal law are also numerous and numerous. In fact, the concept of economic criminal law currently used is not rigorous. To a large extent, it is believed that some criminal law articles are related to "economic" or belong to the "economic field", so it is marked as "economic criminal law". However, there is still a lack of solid theoretical basis and rigorous theoretical evidence on the specific scope and boundaries of "economic criminal law". Analyzing, examining and defining the scope of economic criminal law from the perspective of other departmental laws such as economic law, administrative law, and civil law, and achieving the correctness of the scope of economic criminal law, clarifying the focus of economic criminal law regulations, and clarifying the inappropriate understanding of the legal interests of economic criminal law, is of great theoretical value.

1. The dispute over the scope of departmental law with economic law as the main line

Study economic criminal law from the perspective of economic law and draw on the theoretical literacy of economic law . Through the intersection of economic law and criminal law, it can benefit the concept definition and scope of economic criminal law. In terms of the cultivation soil and practical needs of economic law, domestic has obvious advantages over foreign countries. Traditionally, foreign countries pursue liberal economic policies. Although with the development of the times, the government is no longer just the role of " Night Watcher ". National economic intervention and even economic control based on Keynesian are also normal, but from the perspective of overall economic form, liberalism is still its background, and other economic policies are only corrections and corrections to liberalism. From Industrial Revolution to the mid-19th century, economic law only involved in the economic management of the country in limited fields, such as agriculture, handicrafts, commerce and markets, land resources, forest and mining, taxation systems, etc. At the end of the 19th and early 20th centuries, the development of economic law began to accelerate. Its historical background is that at that time, the capitalist countries such as Britain and France had completed the industrial revolution , and the changes in production methods greatly increased the degree of socialization of production.In the context of socialization of production, when the market mechanism as the "invisible hand" can no longer effectively regulate the social economy, the state needs to consciously intervene, and modern economic law thus emerged and developed rapidly. In terms of legislation, there is no nominal economic law system in the legal system of many Western countries such as the United Kingdom (and no economic law as discipline departmental law), but there are a large number of laws with the substantive content of economic law. my country is born into the socialist market economic system of planned economy. The state's economic control is a natural part of the original economic system. The process of market economy reform is a process of gradually relaxing economic control and increasing market vitality. Therefore, compared with foreign countries, my country's economic law practice and theoretical research has its own unique causes and genes.

A history of economic law research is the history of defining the scope of economic law research. The research object and scope of economic law have always been its core and fundamental issue, and have been with the beginning of my country's economic law discipline to this day. In theory, the research object and scope of economic law is a process of dynamic evolution and gradual reduction of overall extension. At the beginning of reform and opening up, the Economic Law, which was born under the guidance of " with economic construction as the center, adhered to the guiding ideology of the "big economic law" from a basic standpoint. Based on the concept of "big economic law", representative views such as "unified and horizontal theory", "close connection theory", and "management-cooperation theory" have been formed. The "vertical and horizontal unified theory" advocates that the economic law adjusts vertical and horizontal economic relations and economic relations within economic organizations, including "a general term for legal norms of the social relations that occur in economic activities within state organs, enterprises, institutions and other social organizations and their mutual relationships, as well as between them and citizens, and in economic activities." After the issuance of the " General Principles of Civil Law of the People's Republic of China" in 1986, the substantive level of legislation restricted the theoretical legitimacy of the "big economic law". The traditional "vertical and horizontal unified theory" began to be revised, restricting the intervention of economic law in economic relations between equal subjects, and a "close connection theory" and a "management-cooperation theory" appeared. The former narrows the "horizontal economic relationship" in the scope of adjustment advocated by the "vertical and horizontal unified theory" to "the part of the horizontal economic relationship that is only closely related to the vertical economic relationship." The "management-collaborative theory" replaces the "proposition of horizontal economic relations with economic cooperation relations." Some scholars believe that the adjustment of economic law is the economic relationship between the government as the management subject and the economic individuals who are the management recipients. The so-called economic law in this view is actually administrative law, but it is just administrative law that occurs in the field of economic management. Since then, views such as "economic coordination relationship theory", "need to intervene in economic relations", "economic management and market operation relationship theory", and "national economic regulation relationship theory" have emerged one after another. The common point of this kind of theory is that it is committed to the distinction between economic law and civil law, and reflects and corrects its own adjustment objects, but it still lacks rational thinking on the relationship between economic law and administrative law and its discipline positioning.

In addition to playing against civil law, economic law also faces powerful challenges in administrative law. The focus of the debate between the two sides is whether the Market Regulation Law (or Economic Administrative Management Law) should be classified as Economic Law. Economic administrative law is an early economic law theory. This view distinguishes economic administrative law from administrative law based on whether management relationships are economical. It believes that economic administrative law with economic nature is economic law. According to this theory, the adjustment objects of economic law should be fully or partly within the scope of administrative law adjustment. The plan is to either directly subscribe to administrative law adjustments, or a new branch in administrative law, namely "Economic Administrative Law". The original intention of this view is to seek the legitimacy of including the management relationship in the economic field into the scope of economic law adjustment, but due to the lack of theoretical support and direct conflict with administrative law, the effect is counterproductive. In addition, there are differences between various theories regarding whether the economic law includes Social Security Law , State-owned Assets Management Law , the internal management law of enterprises, and whether it is necessary to specifically distinguish the foreign economic management law.Taking the theory of economic coordination as an example, the theory believes that "economic law is a general term for legal norms that adjust economic relations that occur during the coordinated economic operation of the state." The so-called economic coordination relationship includes four aspects, namely, enterprise organization management relationship, market management relationship, macroeconomic regulation relationship, and social and economic security relationship. This view incorporates social security laws that belong to social law into economic law. In recent years, the view that economic law should include market regulation law (Economic Administrative Management Law) and macro-control law has been widely accepted in terms of the core content of economic law. In other words, the economic relationship adjusted by economic law is arisen in the process of the state affecting economic operation through specific behaviors; its role is reflected in the direct or indirect intervention of the state as the subject of public power; its scope of function includes at least two major areas: macroeconomics and microeconomics and . More and more works agree that this specific behavior includes the state's regulatory behavior on the macro economy and the regulatory behavior of the micro economy (i.e., market operation). There is also a representative view that economic law "is a general term for legal norms that adjust various social relations that occur in the process of state regulating social and economic control and promoting society to achieve the expected goals of the state will." In terms of the relationship between economic law and administrative law, a more thorough and radical view is to completely abandon the economic administrative management law and part of the economic regulation law. In other words, the adjustment objects of economic law only include the national economic macro-control relationship. The scope of economic law has further contracted on the basis of previous periods, basically avoiding head-on confrontation with civil law and administrative law.

Since modern times, the evolution of economic criminal law has been accompanied by the development of economic law. While economic law is pursuing its research objects and theoretical positioning, economic criminal law also faces the same theoretical topics within the discipline of criminal law. The concept and scope of economic criminal law, the relationship between economic criminal law and administrative criminal law, the status of economic criminal law in the discipline of criminal law and the theoretical relationship between the two have all caused widespread and lasting controversy in the academic community. Extreme economic criminal law monist fully understands economic criminal law as the maintenance of economic order. The pre-arranged law of economic criminal law is only administrative law. Economic criminal law is the economic management criminal law, which is completely affiliated with administrative criminal law. But in fact, in addition to administrative law, the pre-determined economic criminal law also includes other departmental laws, such as economic law, civil law, etc., which together constitute a complete system of the pre-determined economic criminal law departmental laws.

2. The focus of the economic criminal law is the Criminal Law of Economic Management

Economic Management Criminal Law regulates the economic behavior of administrative counterparts

"The economic criminal law is actually part of the administrative criminal law, it is nothing more than the part of the administrative criminal law that occurs in the economic field..." The prerequisite of the Criminal Law of Economic Management is administrative law, which adjusts the administrative management relationship between the administrative subject administrative subject , who is the manager and the administrative counterpart , who is the managed. The two are legally inequality between management and being managed, which are manifested in the strength of the manager's status, the legal mandatory behavior and the relative weakness of the manager. Specifically, the Criminal Law of Economic Management presents the following characteristics. First, the prerequisite of the Criminal Law of Economic Management is administrative law. The Criminal Law of Economic Management is a secondary law and a guarantee law of the Administrative Management Law, and the successful implementation of the Administrative Law is guaranteed through the compulsory force of the Criminal Law. Second, the adjustment object of the pre-order law of the Economic Management Criminal Law is the administrative management relationship between vertically unequal subjects. There was once a vertical economic legal theory that economic law is the sum of legal norms that adjust the vertical economic relations in my country. But this view was first abandoned in later academic debates. Vertical economic relations are considered to be a typical adjustment of administrative law and fall into the scope of administrative law. Third, the pre-law adjustment object of the Criminal Law on Economic Management is the administrative management relationship that occurs in the economic field. Because it occurs in the economic field and has the "economic" attribute, it achieves the purpose of limiting the scope of economic criminal law. Fourth, the regulatory objects of the Criminal Law of Economic Management are different from those of Administrative Law. The former is used to regulate the behavior of administrative counterparts, especially the economic behavior of administrative counterparts as market entities, and does not include the behavior of administrative subjects and their staff in administrative law.The latter includes both administrative counterparts and administrative subjects. Some scholars once attributed the criminal acts committed by administrative entities when engaging in administrative management to economic crimes. For example, some scholars believe that: "Economic crime refers to acts that violate national economic management laws and regulations in the field of market economy operation and in the field of market economy operation and in the field of market economy operation, violate the national economic management regulations, destroy the state's market economy operation order and the normal management activities of market economy , and should be punished in accordance with the provisions of the Criminal Law." However, now the theoretical and practical circles generally say that such behavior is considered as corruption, bribery or dereliction of duty crimes, and is no longer regarded as economic crimes.

The actual focus of my country's economic criminal law is economic management criminal law

Some scholars believe that economic criminal law refers to criminal law norms that take departments or systems with important functions in the overall economy and the overall economy as the object of protection. According to this view, economic criminal law is a kind of "bewirtschaftungsstrafrecht" (Bewirtschaftungsstrafrecht), which protects transpersonal legal interests manifested as economic order. This view was first proposed by German scholar K. Lindemann, and later agreed by scholars such as H. Ebisch and R. Schmitt. Although many scholars have objections to the above-mentioned positioning of the Economic Criminal Law in theory, it is indeed an indisputable fact that the main content of the Economic Criminal Law is the Economic Management Criminal Law (Market Regulation Criminal Law).

Examining the scope of adjustment of my country's economic law and its boundary division with civil law and administrative law, it can be found that there is no uniform and clear correspondence between economic law and economic criminal law. Economic Criminal Law is not only a guarantee law for economic law, but also corresponds to the content of civil law and administrative law. In addition to economic law, violating relevant provisions of civil and administrative law may be criminally punishable and constitute a crime. Judging from the provisions of my country's criminal law, the main component of the economic criminal law is the administrative criminal law with economic management attributes, and the criminal law provisions with economic administrative management attributes are its focus. For example, the establishment of many crimes in Chapter 3 of the Criminal Law of my country, most of which are regulated by administrative management relations in the economic field and should be recognized as the Economic Management Criminal Law. As for whether the content positioning and system layout of the article set in the entity method is appropriate, it is another matter.

Economic Management Criminal Law mainly protects traceability, transpersonal legal interests,

Although the connotation of transpersonal legal interests itself needs to be further refined and clarified, its legislative criticism and interpretation regulatory functions are often questioned, and some people even believe that transpersonal legal interests are not enough to respond to theoretical expectations, showing a state of fatigue of being in a difficult and struggling manner. However, the use of transpersonal legal interests to define the concept and scope of economic criminal law has been the mainstream approach in the field of economic criminal law research in the past century. In practice, the transpersonal legal interests theory has become the theoretical basis of Germany's 1977 "Alternativ-Entwurf" and has been legislatively confirmed.

Economic management Criminal Law protects the first thing that is traceable is the legal interests that transpersonal. Traceable transpersonal legal interests come from the aggregation of personal legal interests, and all traceable transpersonal legal interests can be traced to the basis of personal legal interests. At this time, traceability transcends personal legal interests and personal legal interests are a relationship between "means-purpose", that is, the former cannot surpass the purpose as a means and has independent protection value. Within the framework of traceability transpersonal legal interests, abstract order or system is indeed necessary to maintain, but the ultimate goal should be to promote the interests of consumers as individuals. When the interests of consumers are not infringed or at risk of infringement, even if the order or system is infringed or there is a risk of infringement, it should not be considered a crime. Legislatively, the constituent elements of such crimes are set as infringement of personal interests rather than abstract institutional violations. The provisions of the Criminal Law of my country's Criminal Law are expressed in terms of "causing serious harm to human health", "causing significant losses to others", or "defrauding the other party of property, in a large amount", etc. Specific crimes for infringement of tracing beyond personal legal interests include Article 141 of the Criminal Law of my country, Article 142 of the crime of producing and selling fake drugs, Article 219 of the crime of infringing on commercial secrets, etc. Traceable transpersonal legal interests are the main protection legal interests of the criminal law of economic management.

Economic management criminal law also protects independence beyond personal legal interests. The so-called independence transcends personal legal interests, which refers to the type of legal interests that has independent protection value, is not directly related to personal legal interests, and cannot track the basis of personal legal interests. For example, criminal acts such as smuggling , damaging financial management order (foreign exchange crimes, securities, futures crimes, etc.) do not target the economic rights and interests of specific investors or consumers. Such acts only infringe on the abstract customs system, tax system, financial system and other institutional legal interests. Independence transcends personal legal interests and becomes abstract due to the lack of realistic basis for personal interests to be damaged. In order to prevent excessive protection of independence beyond personal legal interests, resulting in improper intervention in market behavior, the scope of independence beyond personal legal interests should be strictly limited, and only significant and basic economic orders are affirmed to fall within the scope of criminal law regulations. Judging from the process of amending the criminal law in my country, there are already legislative examples that have committed crimes beyond the personal legal interests. For example, the "Amendment to the Criminal Law of the People's Republic of China (XI)" deletes the "other serious circumstances" corresponding to the first statutory penalty for fraudulent loans. After modification, criminal liability will be held for the first treasury only if it causes significant losses to banks or financial institutions. The department stipulates that the combination of the act and the resultant crime will become a pure resultant crime. In addition, the Economic Management Criminal Law can also adjust in the following aspects to gradually realize the non-criminalization process of some behavior types: First, behaviors induced by market inhibition and other market defects, such as some illegal absorption of public deposits; Second, behaviors that are drastically changed and uncertain in social harm, such as the use of the crime of illegal business operations to regulate emerging business forms and emerging economic behaviors; Third, behaviors that are not substantially harmful, such as usury loan transfer.

Substantive law of my country's economic management criminal law constitutes

As the base of my country's economic criminal law, the pre-arrangement of most criminal law norms in Chapter 3 of the Criminal Law is the economic management law, and the adjustment object is an administrative management relationship with economic content. Specifically, the crimes involved in the Criminal Law of Economic Management can be divided into the following categories. First, the Economic Criminal Law on Market Access Management. Such crimes are used to punish acts of engaging in business without permission. The "license" here refers to a special license other than the industrial and commercial business license, and the legal interests intended to be protected are "specific market access order." For example, the crime of setting up a financial institution without authorization is a typical crime in this category. Such crimes can also be used to protect the exclusive operating rights of a certain industry. Typical charges such as , illegally absorbing public deposits, , aiming to protect the exclusive operations of banks and other licensed institutions in the storage absorption business. For example, the purpose of the crime of illegal business under Article 225 of my country's Criminal Law is to protect the monopoly rights of specific institutions. Many countries and regions are more cautious about the criminal law intervention in the market access order, and most of the acts that violate the market access order are handled within the scope of administrative penalties (or penalties for violations of order). Second, the Economic Criminal Law on Basic Market Management. The basic market management order is such as the basic market economic system of the framework such as taxation, intellectual property, securities, and futures. The significance of the basic order of the market lies in establishing the "four pillars" as the market foundation, providing a fundamental institutional platform for the formation and operation of the market. The basic market management order has no direct interaction with the production and business activities of market entities at the micro level, but provides institutional support at the macro level. The market environment it constructs is an indispensable prerequisite for market operation. Chapter 3 of the Criminal Law of my country has a large number of crimes to protect the basic management order of the market, such as tax evasion, smuggling ordinary goods, items, and forging currency. The two branches of the Economic Criminal Law, the Finance, Taxation, Criminal Law and Customs Criminal Law, have a long historical tradition and are particularly mature branches in the economic Criminal Law in the doctrinal sense. Third, the economic criminal law on market operation management. The basic market management order is a static and basic institutional arrangement, while the market operation management order is a dynamic market order, including the management order that market entities should follow in production, operation and other activities.The market operation and management order belongs to the management order and is easily confused with the market trading order, but the nature of the two is essentially different. One party in the market management order is the administrative agency, and the essence of the legal relationship between the two parties is the administrative management relationship, while the market transaction order occurs between equal market entities, and the two are contractual legal relationships originating from market transactions. More typical crimes of infringing on the order of market operation and management, such as the crime of producing and selling counterfeit and inferior products. Fourth, the economic criminal law on the management of market organizations (such as companies and enterprises). Such criminal acts undermine the establishment, existence and elimination system of market entities themselves. Typical charges include false capital contribution, withdrawal of capital contribution, , obstruction of liquidation, etc. It should be noted that the market entities here mainly refer to non-state-owned companies and enterprises, and also include some state-owned companies, enterprises, and institutions (when a specific crime of malfeasance was established).

3. Criminal law in the field of economic regulation needs to be expanded legislation

As mentioned earlier, it is one of the more representative views that the adjustment scope of economic law should be limited to the economic regulation method in recent years. Some scholars believe that economic law is the law of state regulation of economy. Its basic tasks and legislative purpose are to influence the structure and operation of the social economy through the state regulation of legal norms, achieve economic coordination, stability and development, and thus promote social fairness. Economic Law specifically includes three basic regulatory measures, namely, the state directly participates in certain investment and operation areas that private capital is unwilling to enter; anti-monopoly and anti-unfair competition to eliminate market obstacles; the state uses plans and economic policies such as fiscal, taxation, and finance to implement macro-control such as guidance, encouragement or constraints on the social economy. Academic circles generally believe that crimes occur in the first regulatory measure field (national investment) are duty crimes and are not considered economic crimes. Therefore, this article mainly discusses the scope of economic criminal law in the two areas of eliminating market obstacles and macro-control.

Economic regulation Criminal Law mainly protects independence beyond personal legal interests

Independence beyond personal legal interests is an abstract concept independent of personal legal interests, but is not completely unrelated to personal legal interests. Independence transcends personal legal interests and traceability transcends personal legal interests are substantial different, and have the value of criminal law protection independent of personal interests. Although independence cannot be directly "traceable" to personal legal interests from a static basis, it is indirectly linked to personal legal interests in the dynamic process of protecting the realization of personal legal interests. The economic regulation criminal law protects independence beyond personal legal interests, and is rooted in the special attributes of the pre-emptive adjustment object of the law to eliminate market obstacles. When the law on eliminating market barriers is applied, most of them do not have direct victims or victim units. Correspondingly, the protection of legal interests by eliminating market obstacles by criminal law is not directly reflected in the interests of specific individuals or units, and shows obvious abstraction and independence in the form of legal interests. Typical provisions of the Economic Criminal Law, such as Article 222 of the Criminal Law of my country, , false advertising crime, etc., such criminal acts do not directly infringe on the interests of specific individuals or units, there are no obvious or direct victims, but only a violation of the abstract order.

eliminates market obstacles Criminal law mainly protects independence of transpersonal legal interests, but it is not related to individual legal interests. The absolutely abstract transpersonal legal interests do not exist. The abstraction of transpersonal legal interests can be high and low. In occasions with low abstraction, it can even be manifested as a tangible collection of numerous individual legal interests.

The field of economic regulation should not be the center of economic criminal law legislation

There is a domestic view that in the context of the transformation from a regulated economy to a market economy, the economic criminal law should also be adjusted accordingly to achieve the transformation from a regulated economy criminal law view to a autonomous economic criminal law view. At the same time, the focus of legal interests in the protection of economic criminal law should also be adjusted accordingly, and a new legal interests view that emphasizes both national rights and economic order should be established. The focus of economic criminal law advocated by this view should be shifted to an important ideological tendency in the domestic economic criminal law theory community in recent years. Some foreign literature also believes that the field of regulatory law has long been the core of economic criminal law.The question that follows is whether the shift in the focus of economic criminal law means that economic regulation should become the legislative focus of economic criminal law? In fact, the term "regulation" used in the above foreign literature is fundamentally different from the "macrocontrol" in this article. The term "regulation" in foreign literature includes two methods in terms of means. First, the regulation of activities stipulated in the Anti-Restriction Competition Law on restricting competition and abuse of the market monopoly on the status of . The second is the provisions on licensing enterprises to engage in economic activities and licensing them to withdraw from the market, such as the establishment of special enterprises and the bankruptcy criminal law. It can be seen that the meaning of the word "regulation" abroad actually includes both generalization, macro-regulation, and macro-regulation that is not related to specific counterparts, as well as eliminating market obstacles and partial economic administrative management. In fact, judging from the economic criminal law legislation in Germany and Japan, criminal legislation that purely eliminates market barriers does not rank as the focus of criminal legislation. Taking Germany as an example, price legislation in the field of economic regulation is no longer of great significance in Germany today; especially the pricing implemented by the state is now limited to a few special areas, such as the energy, transportation, insurance industries, as well as the medical law and hospital law, let alone criminal legislation. The criminal penalty provisions established in the fields of Anti-Monopoly Law and Anti-Unfair Competition Law are far from comparable to the number of criminal law provisions in the field of administrative management. Therefore, the author believes that the view that the focus of economic criminal law should be adjusted is not worth mentioning.

Although the author believes that the focus of the current legislation of the Economic Criminal Law is not inappropriate, it does not mean that the provisions of the Economic Criminal Law are perfect. Looking at the existing provisions of the Economic Criminal Law, there are indeed the following drawbacks: too many economic management provisions, insufficient supply of criminal law legislation in the field of economic regulation; excessive intervention of the Criminal Law in Economic Management, insufficient protection of the Criminal Law in Economic Regulation, etc. In the direction of legislation improvement, there should be advances and retreats. On the one hand, some criminal law provisions or some crimes should be abolished in the field of economic management criminal law; on the other hand, criminalization should be promoted in the field of economic regulation and additional crimes should be added. Criminalization is mainly manifested in the criminalization of areas where market obstacles are eliminated, such as the gradual intervention of criminal law on abuse of market monopoly status, and expansion trends in order to achieve effective supervision of market order.

There is no economic criminal law in the field of macro-control

0 The adjustment object of the macro-control law is the changes in the direct social interest relations caused by macro-control, such as changes in the interest relations between the state and macro-control departments and market entities, between market entities and market entities, and between general social entities such as market entities and citizens. Typical legislation in the field of macro-control includes "Price Law of the People's Republic of China", " Budget Law of the People's Republic of China ", "Tax Law of the People's Republic of China", etc. Means of macro-control include price, budget, taxation, exchange rate, , etc. There are certain similarities between macro-control and economic administrative management. For example, whether it is the Economic Management Law or the Macro-control Law, the subject of one legal relationship must be the state, and the legal relationship formed by the state in economic management or macro-control. At the same time, there are essential differences between the two. Macroeconomic regulation does not directly target the specific behavior of market entities, and the implementers of macroeconomic regulation do not directly act on specific administrative counterparts through specific administrative actions. For example, in macro-control implemented through tax or price means, the government's regulatory behavior is general and macro-oriented, and does not target specific market entities, nor does it specifically grant specific rights and obligations for specific market entities. The economic management rules are contrary to this, and they are always targeted at specific administrative counterparts, and the object of regulation is the specific behavior of administrative counterparts. Since the macro-control law does not involve the specific behavior of the counterparty, it is essentially different from the regulatory system based on "behavior" in the criminal law, there is no economic criminal law in the field of macro-control.

Criminal legislation in the field of eliminating market obstacles in foreign countries

If the scope of economic law is limited to the economic regulation law, then only the criminal law norms with the economic regulation law as the pre-law are the "economic criminal law" that match the name and reality. In addition, the criminal law provisions in the economic field can only be administrative criminal law or market transaction criminal law.From the perspective of comparative research, criminal law (specifically manifested as economic criminal law) has existed in ancient times. For example, in order to regulate the import and export of pleasure goods, the Reichsabschied in 1512 stipulated the abuse of monopoly status as a crime based on the empire's provisions on grain profits, thus forming a cartel (criminal) law. In modern times, violations of the Law on Excluding Market Barriers have been used as legislation for criminal punishment, which is more common in foreign legislation. For example, the serious restriction of competition stipulated in Article 298 of the German Criminal Code and the "constituent elements of violation of order" stipulated in Article 81 of the German Anti-Restriction of Competition Law (the law does not stipulate the constituent elements of crime, but only stipulates the "constituent elements of violation of order"), are all aimed at maintaining a good market competition order by preventing market entities from abuse of monopoly status, thereby achieving the protection of the competition system. In addition, the legislative significance of the above provisions also includes prohibiting the act of raising prices through the cartel agreement and protecting individual economic freedom; prohibiting the act of restricting competition in contractual and other conspiracy, etc. These are all within the scope of eliminating market obstacles. Japan also has legislation on antitrust penalties. For example, Article 89 of Japan's Anti-Monopoly Law stipulates the types of behaviors that should be punished. Most types of behaviors are both the objects of regulatory authority and criminal sanctions. After the law was enacted, it was idle until the 1960s. In the 1970s, the oil cartel incident occurred due to the oil crisis in , which began to attract attention from the judicial system and academic community to the law, and a small number of related cases appeared one after another. However, in the next decade, the application of Japan's Antitrust Law fell into a state of stagnation. By 1993, Japan amended the Antitrust Law, in which criminal penalties were strengthened. The focus of this revision is Article 89 of Japan's Anti-Monopoly Law (monopoly, improper transaction restrictions and competition restrictions). Article 95 of the law's "double penalty provisions" can be applied if it constitutes related crimes. In Japan's legislative practice and academic philosophy, the purpose of economic criminal law in the field of eliminating market barriers is to realize and protect the interests of free market economy as the basic value of economic transactions and consumers as market entities.

my country eliminates market obstacles and expands the scope of criminal law intervention

In my country's current criminal law, the abuse of monopoly status does not constitute a crime. When the Anti-Monopoly Law of my country was formulated, all parties had disputes over whether monopoly behavior should be convicted. Some people believe that the market competition order should be part of the market economic order, so monopoly behavior should also be criminalized. However, the lawmakers ultimately did not adopt the advice of guilt. In the new economic and social environment, some scholars believe that if before the promulgation of my country's Anti-Monopoly Law, the degree of industry concentration was generally low, the social harm of monopoly was not great, and the conditions for criminalization were not yet mature, then the conditions for criminalizing monopoly behavior are now fully met. Therefore, it is necessary to add three monopoly crimes in the criminal law, including the crime of agreement monopoly, the crime of abuse of market dominance and the crime of illegal concentration.

Although my country's criminal law does not establish special charges in the anti-monopoly field, it has corresponding charges for other acts that violate the order of free competition, such as damage to commercial reputation, commodity reputation, and false advertising. In addition, on February 12, 2020, the Fourth Part II of the "Opinions on Punishing Illegal and Crimes Obstructing the Prevention and Control of the New Coronavirus Pneumonia Epidemic" jointly issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice clearly stipulates that during the epidemic prevention and control period, if the state violates the relevant national market operation, price management and other regulations, hoards, and raises the prices of protective supplies, drugs, or other items involved in people's livelihood that are urgently needed for epidemic prevention and control, and makes huge profits, the amount of illegal income is large or there are other serious circumstances, which seriously disrupts market order, shall be convicted and punished for the crime of illegal business in accordance with Article 225, Paragraph 4 of the Criminal Law of my country. This provision can be understood as the intervention and intervention of the criminal law in the price field.But overall, my country still has few criminal law provisions in the field of economic regulation, and its coverage is not comprehensive, and relevant legislation should be expanded.

4. Regulating pure transactions between equal subjects does not belong to the Economic Criminal Law

The third chapter of the Criminal Law of my country does not stipulate entirely acts that disrupt economic management order, but also acts that disrupt economic regulation order and market trading order. The market transaction order is the market order formed between equal entities in the transaction process. The two parties to the transaction are equal market entities. The link between the two is a contract transaction relationship. There is no dominant position or compulsory legal effect of one party over the other. The legislative examples that undermine market trading order in Chapter 3 of the Criminal Law of my country, such as contract fraud, forced transactions, etc.

Economic freedom is not the protection of the economic criminal law

Japanese scholar Professor Fujiki Hayao reflects on the protection of transpersonal legal interests while reflecting on the economic criminal law during the wartime control period. While he has focused too much on the protection of transpersonal legal interests, he has made a reflective adjustment to the concept and essence of economic crime. In the book "Administrative Criminal Law", he proposed that the so-called economic crime refers to "under the system of free economy, the freedom of economic transactions is abused or randomly used, causing chaos in the market economy by various methods, or in specific economic transactions, causing great economic losses to the majority of consumers and the masses, and allowing themselves to obtain greater economic benefits. This type of economic activity is the basis of the abuse of freedom and endangering the free economic system." Some scholars in China believe that "the legal interests of economic criminal law are the economic freedom of the equal subjects of the market and the public interests of the social and national under the conditions of market economy linked to this. For acts that do not infringe or risky as mentioned above, and simply violate the economic administrative order formed based on state orders, they should fall within the scope of economic administrative law adjustment." This view regards the infringement of interests caused by abuse of economic freedom as the essence of economic crimes. On the basis of criticizing the current legislation of the economic criminal law, it believes that the economic criminal law should shift from the current "order legal view" to the protection of economic freedom. The above view has been in line with the domestic criticism trend of "order and legal interests" and has received a lot of support in the academic community in recent years. Some scholars then bluntly argue that it is necessary to build a legal system that is compatible with the goal of maintaining economic freedom. The transformation of China's economic criminal law legislative system should be based on the goal of expanding economic freedom, in order to achieve the transformation of the economic criminal law legislative concept while achieving the update and adjustment of the economic criminal law legislative system.

The author believes that the so-called economic freedom cannot be used as the protection of the legal interests of economic criminal law, regardless of its own attributes and the reasons for its academic origin. First of all, "freedom" itself does not have the inherent attributes of legal interests. If the "freedom theory" is used instead of the "order theory", the legal interests of economic criminal law will inevitably fall into a more vain, empty, abstract and unstructured situation. The concept of legal interests in concepts such as "freedom" has contributed to the tendency to interpret abstract concepts without realistic content as legal interests. As a result, it will inevitably disintegrate the criminal law definition power of the concept of legal interests, and thus affect its function. Secondly, the prevalence of the theory of economic freedom stems from the excessive intervention and correction of states in the era of the governing economy, and thus became the focus of practical and theoretical attention in specific historical periods. However, the theory of economic freedom itself is not enough to become the focus of economic criminal law research. The criminal law provisions that regulate the abuse of economic freedom are just a tip of the iceberg. Although it is easy to attract attention, it is not the main component of the iceberg. The basis and focus of the market should still be the market system and mechanism that enables it to exist and operate normally.

Economic Criminal Law does not adjust pure market trading behaviors between equal subjects

The economic regulation field and economic management field of economic criminal law protects legal interests as transpersonal legal interests. However, in market transactions, is there any connection between criminal acts that occur between equal transaction subjects and transpersonal legal interests? In other words, if it is believed that the essence of economic crime is an infringement of transpersonal legal interests, then is the criminal law on the market transaction guarantee (such as contract fraud) that occurs between equal subjects arising from economic criminal law? The author holds a negative view, because the economic criminal law cannot be broadly understood as a criminal law norm that protects economic legal interests, otherwise traditional property crimes will be included in economic crimes. The economic criminal law should be a criminal law norm for protecting the economic order, including a criminal law norm that directly takes the economic order and its important departments as the object of protection and a criminal law norm that indirectly takes the economic order as the object of protection. Its legal interests are an economic order reflected in a transpersonal legal interests. The direct legal interests that occur in transactions between purely equal subjects are usually limited to individual legal interests, and there is no direct damage to the legal interests beyond the individual. Therefore, it cannot be considered an economic crime, that is, the Civil Law is the pre-arranged law of the economic criminal law, but only part of the pre-arranged criminal law provisions belong to the economic criminal law.

should be proved theoretically as the above point of view, and there are two other issues that need to be further clarified.

First, how to accurately understand market transactions between purely equal subjects? In the crime of selling counterfeit and shoddy products stipulated in Chapter 3 of the Criminal Law of my country, the seller and the buyer also have an equal subject in form. However, academics generally believe that this crime is an economic crime. How to explain it? In fact, the relationship between buyers and sellers in selling counterfeit and shoddy products is not the same as the relationship between the contract fraud. The former pre-law is my country's "Product Quality Law" or Consumer Protection Law, which belongs to administrative law or economic law, while the latter pre-law is civil law. The former is closely related to institutional legal interests, while the latter does not have such situations. Judging from the specific transaction scenarios, the former naturally tolerate one-to-many situations and endanger the interests of many consumers; although the latter also has the possibility of one person cheating multiple people, it has obvious relativity and limitations in terms of a specific contract. Therefore, the "pure market transaction between equal subjects" in this article refers to transactions that occur between equal subjects and have no direct connection with institutional legal interests.

The second is the two different meanings of order. Some Japanese scholars believe that even under the free economic system, the legal interests of economic criminal law should still be understood as "free economic order" and "justice and order of competition". Such views achieve the purpose of explanation by expanding the semantic scope of "order". Can transactions between equal subjects such as contract fraud be understood as infringement of a certain order, and then as infringement of transpersonal legal interests, thus being considered as having the attributes of economic crimes? The author holds a negative view. Although both are expressed as "order", there are differences in the connotations of the two "orders". The economic management order and economic regulation order have relevant institutional basis to protect the effectiveness of the system. The "order" formed by market transactions between equal subjects is more limited to the category of autonomy of the parties and is not manifested as violations or infringement of the system.

5. Specific analysis of the scope of economic criminal law

Acts that violate economic order do not belong to economic crime

There are different theoretical opinions on whether violations of economic order fall within the scope of economic criminal law. Some scholars believe that economic criminal law not only includes the constituent elements of crime in real criminal law, but also includes other norms. These "other norms" impose not penalties in a narrow sense, but only fines on the relevant act. In other words, the Economic Criminal Law also includes the above-mentioned "other norms", namely economic violations of order. According to this view, the crimes and violations of order in the aforementioned German Anti-Restricted Competition Act, as well as the majority (associated criminal law) other constituent elements of the German Court Organization Act, are economic crimes. More scholars hold the view that economic crimes are different from violations of order.The theoretical topic that inevitably arises in "discrimination" is the standard of distinction between economic criminal behavior and violation of economic order and boundary judgment. This is also a hot topic of theoretical disputes in German economic criminal law or economic crimes after the war. If classified, there are roughly many propositions such as "qualitative difference" theory, "quantitative difference" theory, "eclectic difference" theory, and "abstention difference" theory, and there are many opinions in their respective differentiation theories.

From the perspective of German legislative practice, distinguishing between economic crime and violation of order is the direction and trend of criminal law reform since the mid-20th century. The first German Economic Criminal Law in 1949 not only listed the economic criminal law that was valid at that time through the famous Schmidt formula in its article 6, but also introduced a systematic policy of legislatively distinguishing between economic criminal acts and economic violations of order. On March 25, 1952, the Order Violation Act developed the definition of order violation into the definition used today, that is, the order violation is an act with fines as its typical legal consequence. From the 1960s to the 1970s, Germany implemented the economic crime reform movement, which directly produced relevant economic criminal laws. The most significant reform result was the decriminalization of misdemeanor crimes and the construction of the system of acts against order - the formulation of the law on violations of order. Judging from the provisions of substantive law, economic crimes and violations of order are not distinguished in form or in essence. In form, it is undeniable that no economic sector is not subject to a large number of violations of the rules of the Order Law. In essence, there is little reasonable difference between crime and violation of order law; both often protect the same legal interests, such as the operation of financial markets, consumers or the environment. When violating order laws and regulations seriously, illegality is often required to be as serious as illegality in criminal law.

Looking at the academic community when discussing the boundaries between behaviors that violate economic order and economic crimes, it usually includes two dimensions: the extent of the harm of the behavior, and whether the legal interests of the behavior infringement are personal legal interests or transpersonal legal interests. Judging from German legislation, when distinguishing between acts of violation of economic order and economic crime, the initial use is to adopt the standard of the harm of the behavior from a quantitative dimension, that is, those with great harm belong to criminal acts, and those with little harm are included in the act of violation of the order. After the prevalence of the concept of transpersonal legal interests, differences in legal interests attributes have also been used as a standard for distinguishing behaviors that violate economic order and economic crimes. For example, Japanese scholar Professor Toshio Kamiyama believes that formal economic crimes are economic crimes stipulated in the enactment law, which can be divided into three categories. The first type is crime that infringes on the property and economic interests of ordinary consumers; the second type is crime that infringes on the property and economic interests of enterprises, public agencies, merchants, etc. as economic entities; the third type is crime that infringes on the country's economic system or administrative role and economic transaction rules. In essence, economic crimes refer only to the first two categories, which refer to acts that infringe on legal interests with predictable possibilities, and the third category of crimes should be classified as acts that violate the economic order. Although the acts that are just violations of the economic order are legally stipulated as crimes, this is inappropriate and should be excluded from the criminal law and downgraded to economic violations. When distinguishing between economic crimes and violations of order, this view only considers the "legal interest attribute" standard, regardless of its "numeracy". In fact, the use of any single standard in "severe harm" or "legal interest attributes" is not enough to completely and accurately distinguish the two. The use of two standards at the same time will cause inconsistency in the standards and confusion in the distinction between the results. The author believes that a two-level distinction standard can be established. The first level is the "legal interest attribute" standard, that is, the intention of the crime must protect the transpersonal legal interests in the economic field to define the economic attributes; the second level is the "large degree of harm" standard. On the basis of the first level, the most harmful one is an economic crime, and the relatively less harmful one is an act of violating the economic order.

Criminal law attribution for compound legal interests

In economic criminal law, some criminal acts violate legal interests in a single form, but a collection of two or even multiple legal interests.For example, the crimes of smuggling weapons, ammunition, and smuggling nuclear materials stipulated in Chapter 3 of the Criminal Law of my country, not only infringes on the customs management order, but may also endanger public safety or national security. For example, in the crime of infringement of intellectual property rights, many behaviors infringe on intellectual property management systems such as trademarks and patents, and may also endanger the personal interests of the right holder. How to determine the ownership of such crimes with compound legal interests in the criminal law and how to determine whether they belong to economic criminal law?

The author believes that this issue should be analyzed in detail in different situations to judge the classification and attributes of different crimes. One is the situation where several transpersonal legal interests coexist. In this case, a systematic judgment should be made on the legal interests protected by the legislation in accordance with the provisions of the Criminal Law, such as the aforementioned crime of smuggling weapons and ammunition. Some scholars criticized the current Criminal Law, believing that the smuggling crime stipulated in the Criminal Law only focuses on the tariff management order infringed by the act, and simply incorporates the smuggling of dangerous goods such as weapons, ammunition, nuclear materials, etc. into the Economic Criminal Law. Because its legal interests are not elements of the economic system, they have the attributes of infringement of public safety, resulting in improper legislation of the Economic Criminal Law. In fact, this view is worth discussing. The evaluation of the crime of smuggling weapons and ammunition is mainly the infringement of legal interests in the smuggling process. Since it involves weapons and ammunition, the legal interests violated by such acts will expand to the field of public safety, but public safety is not the intention of the crime. As for the protection of legal interests of public safety, in addition to the smuggling process, there are also other crimes such as illegal possession of firearms and ammunition, illegal sale of firearms and ammunition, and jointly form a criminal law protection system for public safety. The second is an occasion where transpersonal legal interests and personal legal interests coexist. For example, the crime of loan fraud is generally believed that the legal interests of this crime include both the ownership of loans by banks and other financial institutions, as well as the national financial management system. Such crimes can be directly determined based on their own legal interests. What can be asked is whether it is believed that even traditional property crimes, such as theft, fraud, etc., may be related to the personal legal interests such as the ownership system and other super-personal legal interests behind it? This type of criminal act first violates the personal legal interests, and at the same time, infringes on the super-person legal interests? The author holds a negative view that this argument and reasoning logic completely eliminate the boundary between personal legal interests and transpersonal legal interests, which will lead to the nihilization of the two concepts.

Environmental crimes should be economic crimes

Regarding the relationship between environmental criminal law and economic criminal law, there have always been controversy in the academic circles at home and abroad. Some scholars in our country believe that "From the actual situation of my country's criminal legislation, economic crimes include the 'crime of destroying environmental and resource protection' stipulated in Chapter 6, Section 6 of the sub-provisions." Environmental crimes destroy the resource allocation relationship within the market economic system and infringe upon the expected economic interests formed based on the production order, which is an economic crime. Some scholars also draw the opposite view from the perspective of examining substantive law, believing that crimes that destroy environmental resources are listed in Chapter 6, Section 6 in the sub-provisions of my country's Criminal Law, which is a crime of obstructing social management order, and it is inappropriate to list the crime of destroying environmental resources protection as an economic crime.

The author has a positive attitude towards the allocation of environmental criminal law to economic criminal law, and the reasons are as follows. First of all, environmental crimes infringe upon transpersonal legal interests - ecological legal interests. The objection is that although environmental resources include means of production such as land and are the basic elements of economic activities, in addition to economic value, environmental resources have significant ecological value. If environmental crimes are adjusted to the economic criminal law, it means that environmental resources are only provided with criminal law protection from the perspective of economic interests, and the ecological value contained in environmental resources is ignored, which will reduce the intensity of the protection of environmental resources by the criminal law. But in fact, it is one-sided to believe that economic criminal law only protects economic value, and regarding environmental criminal law as part of economic criminal law can strengthen rather than weaken the protection of ecological legal interests as transpersonal legal interests. Secondly, environmental crimes may involve economic interests such as minerals, water resources, forests, etc., and natural resources are the greatest economic interests of a country. The economic attributes of natural resources indicate the economic attributes of crimes that infringe on environmental resources, and clarify the positioning of economic crimes within the framework of transpersonal legal interests.Finally, it is also a common practice in many foreign countries to attribute environmental crime to economic crime. The 18th Criminal Law Amendment Law of Germany on March 28, 1980 introduced the environmental criminal law in a holistic manner in the German Criminal Code. The amendment law integrates most of the criminal codes in the subsidiary criminal law that punishes environmentally harmful behaviors, and places them as Articles 324 to 330d into Chapter 28 of the German Criminal Code as part of the Economic Criminal Law. In addition, in other countries such as the Netherlands, economic crimes also include environmental crimes. In summary, environmental crimes should be classified as economic crimes both legislatively and theoretically.