On the basic theory of economic criminal law since the reform and opening up
About the author: Sun Guoxiang, professor and doctoral supervisor of Law School of Nanjing University. This paper was originally published in the Journal of Wuhan University (PHILOSOPHY AND SOCIAL SCIENCES EDITION), issue 5, 2019. Network source: Journal of economic criminal law
Abstract: the reform and opening up gave birth to the economic criminal law and made it an important theoretical research field of criminal law. Combing the origin, evolution and academic accumulation of economic criminal law research in the past 40 years, we can see its start, prosperity and continuous in-depth evolution. While affirming the fruitful achievements of economic criminal law research, we need to face up to the problems existing in the research of economic criminal law, that is, the theoretical foundation of the basic theory of economic criminal law is insufficient, and the theory is still lack of independent confidence and academic recognition. Looking forward to the future, economic criminal law should become the focus of criminal law theory in the new era. The study of economic criminal law itself also needs to deal with the relationship between digestion and absorption and theoretical innovation in response to the changes of the times, construct the theoretical category of economic criminal law of basic significance, and form a clear knowledge system of economic criminal law.
Key words: economic criminal law, economic crime, collective legal interest, reform and opening up
If we take the reform and opening-up since 1978 as the background, the research of economic criminal law has gone through the whole process of reform and opening-up for 40 years. With the surging tide of reform and opening up, as one of the focuses of criminal law research, economic criminal law research has responded to this historic change and formed fruitful theoretical research results. The purpose of this paper is to review the research process of economic criminal law in the past 40 years, examine the achievements and existing problems, and look forward to the future trend of the development of China's economic criminal law theory.
1、 The development of the basic theory of economic criminal law since the reform and opening up
The development of China's market economy started from the reform and opening-up in the 1980s. Corresponding to the process of reform and opening-up, the study of economic criminal law has gone through three stages: start, prosperity and in-depth.
（1） Initial stage (1979-1991)
The first criminal code of new China enacted in 1979, although the special chapter stipulates "the crime of destroying the socialist economic order", many of the crimes have the characteristics of maintaining the planned economic system (such as "the crime of speculation and profiteering", "the crime of forging and profiteering the tickets for the plan" and "the crime of destroying the collective production" stipulated in the criminal code of 1979). In the early 1980s, the prelude of reform and opening up started the process of China's modernization. With the relative independence of economic subject's business activities and economic interests brought by the reform, various kinds of illegal and criminal phenomena in the economic field are also growing and spreading, especially the economic criminal activities such as smuggling, arbitrage, profiteering, stealing public property, stealing and selling precious cultural relics, asking for and accepting bribes are rampant. In this context, Deng Xiaoping put forward in 1982 that we must adhere to two aspects, one is reform and opening up, the other is fighting against economic crimes. On March 8, 1982, the Standing Committee of the National People's Congress passed the decision on severely punishing the criminals who seriously damaged the economy, which made corresponding supplements and modifications to the relevant provisions of the criminal code of 1979, severely punishing the relevant economic crimes and the State functionaries who participated in, protected or connived in economic crimes. Subsequently, the concept of economic crime and economic criminal law has been gradually valued and affirmed by the criminal law academic and practical circles. In 1986, the Criminal Law Research Association of China Law Society and Beijing Criminal Law Research Association jointly held a symposium on "economic system reform and fighting against economic crimes", which focused on the legislation of economic criminal law, corporate crime and economic crime countermeasures. In just a few years, the academic circle has formed many research results related to the basic theory of economic criminal law. According to this, some scholars put forward the subject attribute and status of "economic criminal law", and think that economic criminal law is an independent legal discipline. Many schools also offer courses of economic criminal law in the undergraduate course of law, and recruit postgraduates in the direction of economic criminal law in the discipline of criminal law.
It can be seen that the study of economic criminal law originated from the reform and opening up, and the introduction and introduction of the concept and theory of economic criminal law abroad contributed to the academic enlightenment of economic criminal law. The reform of economic system provides a rich practical basis for the theoretical study of economic criminal law. However, subject to the foreign language level of the scholars at that time, most of the theoretical studies refer to the second-hand materials introduced from Taiwan. Most of the concepts, systems and research methods of economic criminal law have not been digested before they are popularized. In addition, in the early stage of reform and opening up, the country has not yet confirmed the construction direction of the market economy system, and the traditional planned economy system still plays an important role in various fields. Therefore, the research results of economic criminal law in this period are more passive evidence and interpretation of the national norms and policies to combat economic crime. There is no systematic theory of economic criminal law, which has no long-term influence except for its historical significance.
（2） Boom period (1992-2008)
The key period of China's economic reform is the early 1990s. In 1992, Deng Xiaoping's "South Talk" clarified the relationship between socialism and market economy, which has been affirmed since then. Subsequently, the Third Plenary Session of the Fourteenth Central Committee of the Communist Party of China adopted the decision of the Central Committee of the Communist Party of China on Several Issues concerning the establishment of the socialist market economy system, which clarified the construction direction of the socialist market economy system. The historical change of the direction of economic system reform has given birth to the problem consciousness of economic criminal law research. The old generation of criminal law scholars keenly realized that with the transformation of the system, there are many new situations and new problems in the crime phenomenon. "The overall consideration should be given to the irregularities in the market economy, which should be defined as crimes, how to divide the boundaries between crimes and non crimes, how to further scientific induction and classification of all kinds of crimes in the society.". With the development of research space and field of vision, economic criminal law has ushered in an important opportunity for development, and the construction of economic criminal law adapted to market economy has become the focus of academic circles. In 1993, the National Academy of criminal law, under the title of "market economy and criminal law", discussed the transformation of the concept of market economy and criminal law. Some scholars proposed the renewal and transformation of the concept of criminal law under the condition of market economy as well as the issue of the conviction standard of economic crime, and believed that the concept of crime should be "established with the development of social productivity as the standard". In 1995, the National Academy of criminal law took "the current economic crime" as the central topic, and conducted in-depth academic discussions on the macro boundary between crime and non crime, new economic crime and other issues in economic activities. During this period, many works of economic criminal law were published. These works, combined with the process of economic system reform, began to explore the basic theoretical issues such as the legislative principles of economic criminal law, the boundary between crime and non crime.
In 1997, one of the main purposes of the state's revision of the criminal code was to highlight the protection of the order of the market economy. It not only incorporated the supplementary provisions and decisions on the revision of the criminal law made by the Standing Committee of the National People's Congress in the 17 years since the implementation of the criminal law into the criminal law, but also incorporated the provisions on the investigation of criminal responsibility in accordance with the relevant provisions of the criminal law of "comparison" in some civil, economic and administrative laws , changed to the specific provisions of the criminal law, but also added a number of economic crimes. After the promulgation of the criminal code in 1997, the study of economic criminal law once became the focus of mainstream criminal law study, and some important works have been published. As some scholars have pointed out, "by 1997, before and after the revision of the criminal code of our country, various papers and works on the theoretical research of economic criminal law, as well as the research on the legislative technology and judicial operation rules of economic crime have sprung up."
The golden period of the development of economic criminal law is mainly driven by two historic opportunities. First, after the new round of ideological emancipation and the socialist market economy system were put forward in the early 1990s, the academic community began to pay attention to the special problems of the identification of economic crimes in the process of reform and opening up, criticizing the functions of economic criminal law and the traditional standards of conviction and punishment of economic crimes Reflection, put forward to renew the concept, construct the new standards of crime and non crime in economic activities and other era propositions, reflecting certain local consciousness and local characteristics. The second is the revision and implementation of the criminal code in 1997, which objectively requires a systematic interpretation of the revised norms of economic criminal law, thus contributing to a period of prosperity in the study of economic criminal law. After this period of development and accumulation, economic criminal law has a preliminary theoretical framework, its academic value and academic influence can not be ignored.
（3） In depth stage (2009-2018)
With the end of the large-scale state-owned enterprise restructuring since the beginning of the 21st century, the modern market economy system has been gradually improved, the market vitality has been released, and the economic construction has entered a period of rapid development. At the same time, it has also induced some new economic crimes, especially under the influence of the global financial crisis in 2008, the accumulation of financial crimes and corruption in the economic field. "In the face of these new challenges, reflected in the criminal law legislation, that is, the criminal law network of constantly strict punishment and prevention of economic crimes". In recent years, with the continuous amendment of the economic criminal law by the amendment to the criminal law, the academic community has always paid close attention to specific economic crimes, especially commercial bribery, financial crimes and crimes of infringing intellectual property rights. With the rise of the dogmatics of criminal law, the research on the basic theory of economic criminal law has also changed, and the research on textbook and system has changed to the research on special topics. During this period, many doctoral theses on the subject of economic criminal law have been revised into special publications. During this period, it is worth mentioning that in 2012, around the conviction and sentencing of "Wu Ying fund-raising fraud case" in Zhejiang Province, the research on the financial crime of fund-raising stakeholders once became popular. Although most of the research is based on whether Wu Ying's behavior can constitute the crime of fund-raising fraud and whether the death penalty can be applied, it also involves some basic concepts of economic criminal law. However, some economists discuss the crime and punishment of "Wu Ying's fund-raising fraud case" from the basis of market economy (such as freedom, property right and Entrepreneurship), and economic criminal law has once again become an interdisciplinary focus topic.
Looking back on the research of economic criminal law in this period, the research topic is constantly changing, and the research content is increasingly in-depth. A certain number of monographs are published every year, which reflects the academic circles' dedication to the research of economic criminal law. However, compared with the focus of economic criminal law in the 1990s and the beginning of the 21st century, the activity of research in this period has decreased, and there is no significant increase in the research team, and the research results of basic theories with weight are still rare. One of the reasons is that after the research of economic criminal law reaches a certain height, the difficulty of corresponding academic expansion space increases.
2、 The main achievements of the basic theory of economic criminal law since the reform and opening up
Looking back 40 years, the research of economic criminal law has made progress on many important issues. The research of basic theory of economic criminal law has made the following achievements.
（1） A number of basic concepts of economic criminal law have been preliminarily determined
Concept is the cornerstone of discipline development. Economic crime is the logical starting point of the study of economic criminal law. Although the concept of economic crime originated from the official, due to the lack of a clear basis for law making, the official institutions such as the public, the procuratorate, and the law commit economic crimes