A Comparative Study On Administrative Offense

As early as the times to Roman law, there was the pair of concepts of natural crime andstatutory crime. The difference between them is considered afterward to be exactly the sameas the difference between criminal offense and administrative offense. However, it was notuntil in the 20th century that the study on administrative offense spread out completely. Thereason is that administrative offense is strictly connected with administrative criminal law,and yet administrative criminal law originated from modern administrative law. In order toachieve its administrative purposes, the enforcement of orders and prohibitive norms ofadministrative law is often carried through criminal punishment. How to distinguishadministrative offense arranged in administrative penalty provisions from common criminal,arouses heated dispute, since it relates the issue of decriminalization and depenalization. Asa result, there's yet been no final conclusion as to the concept and nature of administrativeoffense.The dissertation consists of four parts. Starting from reviewing the legislative changesand background of administrative offense, the dissertation makes comments on some States'legislative practice, and illustrates status of administrative offense in system of criminal law.Then further comparative studies are made on different views about the nature ofadministrative offense and on basic theories of administrative offense.The nature issue of administrative offense is tightly related to its legislation. Chapter Iof the dissertation introduces background of administrative offense's coming into being. Thehistory of administrative criminal law is always connected with the scope of existence ofadministrative law, while the content of administrative law usually changes withgovernmental functions. Therefore, when governmental functions expands from keepingorder passively to taking measures actively within law to pursue conformity with purposesof administration and realization of social welfare, the normative range of administrative lawextends increasingly and administrative offenses increase with it. The dissertation discussesfrom the standpoint of demonstration some nations' legislation and principles of sanctions toadministrative offense. More specifically, in punishing crimes of so-called welfare offense,Great Britain and the United States does not underline criminal intent as a constitutiveelement, and affirms the doctrine of transfer of legal person's liability. German legislationand jurisprudence ever distinguished substantial illegitimacy of both administrative offenseand criminal offense. However, due to emergence of intermediate types of crimes, it changesto regard degree of hazard of act as punitive criteria, and divides administrative offense intoacts of order offense and criminal offense according to severity of circumstances with fine orpenalty inflicted respectively, and double punishment and presumed liability are applied toadministrative offense. The administrative criminal law of Japan covers a wide range, andstrict pecuniary fine or punishment against freedom is mostly inflicted on administrativeoffenses. Its early principle of punishment application was quite similar to Anglo-Americanlaw, in which subject of institution bears absolute liability as a result of transfer. Thereafter itinclined to double punishment and affirms that legal person of management institution canbe sanctioned subject, but in some of Japanese laws there are regulations of presumedliability that subject of institution bears contrary evidence, which actually has nothingdifferent from absolute liability. Furthermore, there is legislation of tri-punishmentstipulations evolved from double punishment stipulations, but the punishment concerninglegal person therein has not completely got rid of the idea of absolute liability.Although the China's legislation on administrative offense began relatively late, it hasspread all over branches of social society, and has a unique style of punishment in that it hasno direct criminal punishment measures therein, that object of punishment can be bothnatural person and artificial person and that double punishment regulations on administrativeoffense by a unit also include punishment to direct personnel in charge. The dissertationfurther expatiates issues about norms of administrative law. The legal sources ofadministrative offense in China are mainly divided three types, namely, collateral norms ofcriminal law in administrative law, regulations about administrative offense in ordinarycriminal code and provisions concerning administrative offense in separate criminal law. Theauthor thinks in the dissertation that without special regulations, general provisions ofcriminal law will certainly apply to legal norms of administrative offense, while blankadministrative criminal law, such as mandatory orders and regulations on the exercise oflocal autonomy, does not offend basic spirit of doctrine of a legally prescribed punishmentfor a special crime. After defining the concept of time-limited law and verdict criteria, theauthor thinks when time-limited administrative criminal law is changed, validity ofmandatory administrative statutes should be affirmed. In the case that only complementarynorms are altered, complementary norms in the time of act should be applicable.Chapter II discusses the issues of concept of administrative offense and its classification.Since administrative offense is a loanword, neither should we completely disregard valuableforeign doctrines for reference, nor should we entirely neglect the reality of legislation andtheories in our country. Therefore, the dissertation first of all evaluates the doctrines ofconcept of administrative offense in Germany, Japan and China. German scholars generallyregard administrative offense as act of disobey of order that only has illegality ofadministration and only order punishment should be inflicted on offenders. That is, they takethe narrow meaning of the concept of administrative offense. Japanese scholars in the fieldadministrative law, with a view to broad sense of administrative punishment (including orderpunishment and administrative criminal law), set administrative offense in a broad senseagainst criminal offense, while Japanese criminal lawyers, with an eye to narrow meaning ofadministrative punishment (only containing administrative criminal law), set administrativeoffense in a narrow sense against criminal offense. Scholars in Taiwan of People's Republicof China have different doctrines on the meaning of administrative offense, namely, doctrineof both broad and narrow sense, doctrine of broad sense and doctrine of narrow sense. TheMajority of scholars in the Mainland of China adopts the doctrine of administrative offensewith narrow meaning of punishment inflicted, and define administrative offense in the lightof general definition of crimes in our country. On this basis, they advocate adopting thedoctrines of both German and Japanese scholars' doctrines, and to define administrativeoffense with the narrow meaning of punishment inflicted. In perspective of legislation,discussions are made on difference between administrative offense and act of generalviolation of administrative order;in perspective of interpretation, discussions are made ondifference between criminal offense and administrative offense. In legislation, administrationoffenses are divided into police offense, finance and tax offense, economic offense,environmental offense, road traffic offense and other administrative offenses. Administrativeoffense can be categorized in theory according to different criteria. For example, accordingto the legal interest infringed, administrative offense can be classified into economic offense,finance and tax offense, environmental offense, sanitary offense, labor offense, trafficoffense, public order offense and other administrative offenses. In the light of subject ofcrime, administrative offense can be divided into administrative offense by natural personand one by institution, administrative offense by general subject and one by special subject.According to whether criminal norms of administrative offense need complementation ofmandatory administrative norms, administrative offense is classified into blank-normadministrative offense and full-norm administrative offense, etc.Chapter III deliberates the nature of administrative offense. More studies are made onthe issue in Germany and Japan. In Germany, there are Quality Differentiation Theory,Quantity Differentiation Theory and Quality and Quantity Differentiation Theory. Becauseof different standpoint of each theory therein, each theory poses different doctrines. Forinstance, Quality Differentiation theory is subdivided into doctrine of Right Infringement,doctrine Legal Interest Infringement, doctrine of Nature Differentiation of Victim Object,Differentiation of Legal Interest doctrine, Differentiation of Important ConstructiveConditions doctrine, doctrine of Cultural Norms and doctrine of Social Ethics. Under thetheory of Quantity Differentiation Theory, there are Aggravated and Minor Offense doctrine,Nature of Illegality Wearing Off Theory and Differentiation of Degree of Danger and BlameTheory. Quality and Quantity Differentiation Theory is a synthesis of QuantityDifferentiation Theory and Quality and Quantity Differentiation Theory. With comments onthe doctrines above, the dissertation points out that criminal offense is substantively differentin the core area from administrative offense, with difference of quantity in peripheral area,which is relatively appropriate in methodology. The theories of nature of administrativeoffense in Japan has succeeded and developed from relevant theories in Germany, and canbe generally be divided into three categories: Differentiation Affirmation doctrine,Differentiation Negation doctrine and Differentiation Inanition doctrine. Due to differentpoints of view, there are different opinions under each doctrine. The emphasis, however, islaid on searching for essential differences, as theoretical basis of interpreting thatadministrative offense may exclude application of general criminal law. Chinese scholars arealso inclined to four typical doctrines in China of Quality Differentiation, QuantityDifferentiation, Quality and Quantity Differentiation and Dualism, of which each has its ownemphasis, and further advocate defining the nature of administrative offense, and inlegislation, the differentiation of administrative offense and criminal offense cannot be setabout only from legal consequence. In interpretation, the sense of differentiation of the twois embodied in essential content of illegal act. Act violating statutes established for specialpurposes of keeping basic living order constitutes criminal offense, while disobey of statutesestablished for special administrative purposes constitutes administrative offense. Nature ofadministrative offense influences the systematic status of administrative criminal law, andsince what is reigning in administrative criminal law is criminal punishment inflicted onadministrative offense, it seems more appropriate to regard it as a part of criminal law. Theposition of legislation on administrative offense should be to establish correspondingexceptions to particularities of each after constituting general rule of general administrativeoffense.The final purpose of study on administrative offense is to put forward in theorysuggestions of perfecting legislation on administrative offense. After reviewing three modelsof foreign legal systems and the theoretical basis of legislation dependant on the nature ofadministrative offense, the author suggests that China should establish general principles onadministrative offense suitable for its particularities. As for the establishment of crime andpunishment of detailed administrative offenses, it is advisable to take the pattern of separatelegislation.