Research On The Construction Of Misdemeanor Law

In the existing sanction system of social security of China, Criminal Law is aboutpunishing the criminal behavior, the legislation of rehabilitation through labor is aboutpunishing the minor offenses and serious administrative violations and Public SecurityAdministration Punishments Law is about punishing general administrative violations.Criminal Law is the most severe, the legislation of rehabilitation through labor is thesecond, and Public Security Administration Punishments Law is the third. On the surface,the boundary of the three punishment objects above is clear, the severity of punishment isreasonable; they formulate affluent connection of three degree sanction system. But whenwe research on the specific provisions of the three laws attentively, we find many problems.For example, the boundary of the objects of punishment in the three degree sanctionsystem of social security is illegibility. The legislation of rehabilitation through labor losesits basis of legitimacy and legality. The punishment of them is in a serious imbalance statusand the judicature and law enforcement is order less. The institutional drawbacks have nopossibility to connect, which have already influenced the science of legal structure andbecome the original drawback of achieving the rule of law of our country. This articleviews an issue from a connection of administrative sanction and criminal sanctionperspective, on the basis of demonstrate the legitimacy and legality on the construction ofmisdemeanor and specific systems, we put forward a proposition about establishingmisdemeanor system in our country.There is no concept of misdemeanor in our legislation and different scholar hasdifferent opinion. However, the concept of misdemeanor is the premise and basis of thisessay. So the first chapter of this essay would try to define the connotation and denotationof misdemeanor in the basis of learning from the existing legislation and theories in ourcountry and abroad. The author believes that we could establish the concept of misdemeanor from the perspective of crime classification. So the definition of theconnotation and denotation of misdemeanor must obey the following three principles:(a)the crimes stipulated by Criminal Law are all most serious crimes, in order to maintain thestability of the Criminal Law and in the premise of maintaining the frame of criminallegislation system, there is no need to partition the crimes in Criminal Law intomisdemeanor;(b) All behaviors penalized by the legislation of rehabilitation through laborwould be included into the system of misdemeanor;(c) The behaviors penalized by bothPublic Security Administration Punishments Law and Criminal Law would be includedinto the system of misdemeanor. What's more, in the basis of the establishing the conceptof misdemeanor, this essay tries to explore and analyze the location and construction of themisdemeanor law.The legislative conflicts and the chaos of judicial practice are the starting point andfoothold of this essay topic, which is also the necessity of establishing the system ofmisdemeanor. The second chapter of this essay would try to focus on analyzing the samepenalties objects of the three laws, the non-legitimacy and unlawful of rehabilitationthrough labor, the unbalance of the severe degree of the three laws as well as the chaos ofjudicature and law enforcement. The analysis would set up in the basis of clarifying theformation and current situation the existing three security sanction system.What are the root causes of legislative conflicts as well as the chaos in judicialpractice, and further, how to weigh the underlying value choices? By analyzing issues suchas the balance between administrative power and jurisdiction, the possibility forcriminalization and decriminalization and culture outlook on crime, the third chapterattempts to explore a way out of current legislative contradictions and provide a rightfulbasis for the construction of misdemeanor.How are to resolve the conflicts existed in legislation and chaos in judicial practice?Whether we can settle these problems and malpractices fundamentally or not? From theperspective of legislative intent, the forth chapter firstly explores the original causes of thecompeting of object in the above-mentioned three laws. Then, on the basis of analyzing thedifferences between crime and administrative violation, rethinking about the qualitativeand quantitative mode presented in concept of crime in our criminal law, we finallypropose a theory thought which will establish adjustment object of misdemeanor law in ourcountry by above-mentioned way. Furthermore, starting from the theoretical debate of labor reeducation, we analysis and weigh the pros and cons of various programs, and putforward our suggestion——misdemeanor of labor reeducation. Finally, this essay mainlywants to establish the sanction system in which the severity of punishment is consistentwith Criminal Law—Misdemeanor Law—Public Security Administration PunishmentsLaw by exploring how to establish mechanism of mitigation punishment in misdemeanorlaw and how to reform administrative detention.This essay will try to reconstruct both substantive and procedural part of misdemeanorlaw in its last chapter. The part of the substantive reconstruction includes definition of thedefined mode of concept, the decision of the adjustment object of misdemeanor law, thepunishment of misdemeanor and the system of eliminating criminal record and otheraspects. The part of procedural reconstruction involves procedure of commonmisdemeanor, the system of reconciliation in misdemeanor and the procedure ofmisdemeanor punishment order and other respects.