无证经营成品油行为的定性问题研究——兼论《刑法修正案(十一)》对非法经营罪的限缩适用
Research on the Qualitative Issue of Unlicensed Operation of Refined Oil Products—Concurrently Discussing the Restrictive Application of the Amendment (XI) to the Criminal Law on the Crime of Illegal Business Operation

非法经营罪的限缩适用一直是学界和实务关注的问题。2021年3月1日起实施的《刑法修正案(十一)》增设了危险作业罪，此罪名的设立对后续实务中非法经营罪的适用予以一定程度的限缩。在无证经营成品油类案件中，这一限缩影响表现得尤为突出。聚焦无证经营成品油类案件，梳理总结《刑法修正案(十一)》实施前后的公开案例，从前置法规范、法益保护、其他罪状要素三个层面，分析无证经营成品油行为的定性问题，对非法经营罪和危险作业罪的适用进行辨析，明确《刑法修正案(十一)》对此类案件的限缩适用效果，并通过轻罪分流、行刑衔接等方式，为非法经营罪进一步限缩适用提出建议。
The restrictive application of the crime of illegal business operation has always been a concern in academic and practical fields. The Amendment (XI) to the Criminal Law, which came into effect on March 1, 2021, added the crime of dangerous operations. The establishment of this crime has restricted the application of the crime of illegal business operation to a certain extent in subsequent practical work. In cases of unlicensed operation of refined oil products, the impact of this restriction is particularly prominent. Focusing on cases of unlicensed operation of refined oil products, this paper sorts out and summarizes public cases before and after the implementation of the Amendment (XI) to the Criminal Law, and analyzes the qualitative issue of unlicensed operation of refined oil products from the three aspects of the pre-law norms, the protection of legal interests, and other elements of the crime description. It also discriminates between the application of the crime of illegal business operation and the crime of dangerous operations, clarifies the restrictive application effect of the Amendment (XI) to the Criminal Law on such cases, and puts forward suggestions for further restrictive application of the crime of illegal business operation through means such as diversion of minor crimes and connection between administrative enforcement and criminal justice.