The crime of speculation gradually faded out.

The 14th National Congress of the Communist Party of China has defined the target mode of establishing a market economic system. By the end of the 20th century, "the socialist market economic system was initially established", and new steps were taken to improve the market economic system after the Third Plenary Session of the 16th CPC Central Committee in 2003. In this historical transformation process, the concept of speculation is becoming more and more difficult to adapt to, and its effectiveness is getting smaller and smaller.

First of all, the objective object referred to by speculation has changed greatly or even dramatically. As far as the price "rent-seeking" subjectively speculated in the 1980s is concerned, with the price "merging", at least commodity prices have been basically regulated by market supply and demand, and all kinds of "profiteers" have vanished like clouds and no longer exist as a special group. As far as the planned economic phenomenon is concerned, the process of the 1990s continued from the 1980s, and more and more people withdrew from the scope of speculation. All self-employment, employment, trafficking and "black market brokerage" have been legal or "bleached". As far as cheating and hoarding behaviors that may occur in any society are concerned, they are more complicated under the conditions of market economy and need to be regulated by special laws and regulations. The "pocket crime" similar to speculation obviously makes this post very embarrassing. Therefore, after the 1990s, a series of laws have been promulgated to regulate the market order, such as the Anti-Unfair Competition Law (1993), the Consumer Protection Law (1993), the Product Quality Law (1993) and the Contract Law (/).

Secondly, people's understanding of the concept of speculation has changed with the characteristics of the times. After the 1990s, when people talked about speculation, they no longer felt fear and shame, nor tried to separate some economic phenomena from it to legalize it, but gave a "new explanation". The mayor of Guangzhou said that under the condition of market economy, it is not whether to "speculate" but whether to "speculate". The same is true of the problem of "profiteering". Futures is a kind of "dumping", which is to do it according to the law of value. Where the price is high, there are goods. It is also said that market opportunities cannot be grasped without "speculation" and the market cannot be revitalized without "profiteering". Others analyzed: "Strictly speaking, speculation is more of a personal capital. Speculation is looking for trading opportunities; The other way around is the transfer of ownership. "

In this context, the Criminal Law of People's Republic of China (PRC) (1997) revised at the Fifth Session of the Eighth National People's Congress in March deleted the crime of speculation, and decomposed several common crimes, namely, the crime of contract fraud, the crime of illegal business operation, the crime of forced trading, the crime of reselling ship tickets and the crime of illegally transferring and reselling land use rights.

On March 1999, June 16, August 23, 200 1 day and August 3 1 day, the State Administration for Industry and Commerce indicated that the Provisional Regulations on Administrative Punishment for Speculation were still applicable. In other words, the crime of speculation has been abolished, but related enterprises or operators can still be punished in the name of speculation in industrial and commercial law enforcement. However, since then, when the industrial and commercial departments investigated and dealt with cases of speculation and profiteering, complaints and reconsideration often appeared, and people began to discuss the issue of retaining or abolishing the Ordinance.

Criticism mainly focuses on, first, the legal source of the Ordinance and the administrative regulations have not clearly stated its legal basis. Second, the pertinence and effectiveness of speculation, that is, as mentioned above, many economic phenomena pointed by speculation have been legal, and many new economic "disorder" phenomena are defined as speculation is too general. Third, the arbitrariness in law enforcement, that is, the "bottom-up" clauses in the regulations and other speculative acts that disrupt the socialist economic order, leave room for arbitrary interpretation and abuse of power in industrial and commercial law enforcement.

Based on this, many people call on the National People's Congress to review and abolish the regulations. The name of speculation is gradually being used less and less in industrial and commercial law enforcement, and it seems to have been separated and forgotten by the world. The latest case that makes "profiteering" a public topic is the "Moon Embassy" case.

On June 5438+ 10, 2005, Beijing Lunar Village Aerospace Science and Technology Co., Ltd. ("Lunar Embassy") was stopped by Chaoyang Industrial and Commercial Branch for allegedly speculating, and its business license, official seal, operating funds and ownership certificate of lunar land were seized, and it was ordered to return the money of the sold lunar land. In June165438+1October, the company filed a lawsuit in Haidian District Court, requesting the court to cancel the compulsory measures against Chaoyang Branch and return the detained money and materials. In court, the focus of attack and defense between the original defendant and the defendant is actually the applicability of the Regulations. In June 5438 +2006 10, Haidian District Court found that the company's sale of lunar land disturbed the market economic order and was speculative, and rejected the plaintiff's claim. In March 2007, the court of second instance upheld the judgment of first instance.

Through this case, we can make a brief analysis. First of all, the news effect of this case is largely speculative. At this time, the market economy has begun to take shape, and the emergence of speculative cases makes people feel "what's in the evening?" The "name" of speculation with the brand of planned economy era is obviously difficult to match the "reality" of social and economic relations. Second, the focus of controversy is mostly whether it is appropriate to judge such behavior as "selling the moon" as speculative behavior, and it is undoubtedly necessary to crack down on this behavior. According to the explanation of the State Administration for Industry and Commerce, although the act of "selling the moon" is obviously fraudulent, there are no exact provisions in the existing laws to be based on, and finally the last paragraph of the Regulations is invoked to punish it. The timely intervention of the industrial and commercial departments prevented the public from suffering economic losses due to the so-called investment in the moon. [76] This statement is not unreasonable, it reflects the lag and imperfection of the corresponding laws and regulations around the market economy.

Since then, the process of abolishing the Ordinance has been accelerated. On July 26th, 2007, the Legislative Affairs Office of the State Council indicated that they were working hard to draft and formulate administrative regulations on market supervision to replace the Provisional Regulations on Administrative Punishment for Speculation. [77] On June 5, 2008, 65438+54381October 6, the State Council promulgated the Decision on Abolishing Some Administrative Regulations, announcing that 49 administrative regulations were abolished and 43 administrative regulations were invalid. The "Regulations" and its detailed rules for implementation are invalid clauses on the grounds that "the object of adjustment has disappeared, but it has actually become invalid". In this regard, the Legislative Affairs Office of the State Council pointed out that some administrative regulations, including the Regulations, are only applicable to specific objects in a specific stage of economic and social development or a specific historical period. After the end of this specific stage or the disappearance of specific objects, the administrative regulations shall be declared invalid.

The next step is to clarify the relevant provisions in the law. On August 27th, 2009, the 10th meeting of the 11th the NPC Standing Committee adopted a decision on amending some laws, and made a package of amendments to articles 14 1 of 59 laws, which basically solved the problem that the existing laws and regulations are obviously incompatible and uncoordinated with economic and social development. One of them is to delete the provisions on "profiteering" and "profiteering crime" in the Metrology Law, Wildlife Protection Law, Railway Law and Tobacco Monopoly Law, and make amendments.

201110 the State Council promulgated the "Decision on Abolishing and Amending Some Administrative Regulations", in which seven administrative regulations were abolished and some provisions of 107 administrative regulations were amended, one of which was to delete the regulations on the administration of gold and silver and the regulations on treasury bills.

At this point, the controversy surrounding speculation has settled, and the concept of speculation has completely withdrawn from the current laws and regulations and faded out of social and economic life. The rise and fall of the crime of speculation and profiteering is one of the symbols of the economic situation and the path of institutional change in contemporary China. It reflects the gradual deepening of people's understanding of "what is socialism and how to build it" from one side, and also witnessed the historic step taken by the legal system construction in contemporary China. Nowadays, although some people call for the restoration of the crime of speculation, it is almost impossible. However, people should face up to the social and economic phenomena and problems caused by this kind of voice; In fact, China still has more and more practical things to do in maintaining social fairness and justice and realizing a market economy ruled by law.