Research On The Issue Of Administrative Crime In Criminal Field

The issue of administrative crime is always a hot topic from ancient to modern times. The difference between criminal crime and administrative crime still can not form a unified view despite the unremitting explorations by many scholars. But since the 18th century, with the socio-economic development and the expansion of administrative functions, the Modern Administrative Penal Code has birth from the discussion of the traditional theory. And also given the theoretical research to commit new life,So that the old theory which contains a strong spirit of the times shows a new vigor continuously, and still stick in the criminal law field after so many years.Our country starts later On the research of administrative crime, but with the development of market economy and the updating of the traditional ideas, the time and space that our social intervened by Criminal Law continues to expand. The legislation about administrative crime increases rapidly also brought various problems in the process of legislation, judicial and penal punishment. Through comparative analysis of the concept of basic theory, we will review China's existing administrative legislation model, traditional judicial, setting penalties and try to make useful suggestions. In addition to the introduction, this article is divided into five chapters, as follows:Introduction The introduction expounds the background of this topic, the field and methods of the research. Through comparative analysis of the concept of administrative crime in Germany, Japan and Britain and the United States and other countries, the paper proposes avoiding a pure, mechanical and constant definition of the concept of administrative crime which is constantly changing. In the study of the concept of administrative crime, we should combine criminal law and administrative law according to national laws and cultural traditions with relatively stable space-time condition as the background, and comprehensively divide and define the concept with integrated vision of criminal law. At the same time, through criticizing the view of denying the significance of research on administrative crime, this paper expounds that, under the development of our society and criminal law theory, studying theoretical problems about administrative crime again will be conducive to correctly understand and use the entity criteria of existing criminal law, to objectively look on"the basic crisis of criminal law", to really conform to the trend of international criminal law, to establish the practical significance and value of judicial economy conception.Chapter I Research on the Essence of Administrative Crime Based on the comparative analysis of different administrative crime theories in various perspectives and combining the distinction standards of both explanation theory and legislation theory, this chapter starts with the distinction theory of quantity and gives the point that the essence of administrative crime should be analyzed and studied in comparatively stable judicatory environments and in both dynamic and static legislative views. Further more, this chapter confines the administrative criminal law in China through the review and comparison of legislative effect produced by the essence of administrative crime, and also analyzes and demonstrates the judicatory application of the essence of administrative crime.Chapter II Research on the Legislation of Administrative Crime This chapter deals with the second adjustment of criminal law and the reference of blank crime in the legislation of administrative crime and judges the legislation mode of administrative crime in China. On the base of our legislative practice of administrative crime, three bottleneck problems are put forward and analyzed, which include the insufficiency of legislation, incapability of judicatory performance and deficiency of social endurance. These problems are confronted when the generally -accepted method are applied in our legislation of administrative crime. The chapter also holds the view that in the background of current legislative and judicatory abilities and social cultures, we should keep the criminal law uniform and centralized and avoid changing the legislative mode too early.Charter III Research on the issue of judicature of administrative crimes Beginning with the contradiction that it lacks administrative offense rules in current criminal jurisprudence while it is weak in judicial punishment, this chapter states the judicial issue about administrative crimes from the application of law, judicial linking up and factual noncriminal and despise of penalty.First of all, by analyzing the current legal interpretation of the administrative offense, conclusions such as the subject of administrative offense interpretation is unclear, the interpretation lacks rigidity and content of interpretation is uncompleted come into view. It is suggested, without abolishing the current interpretation system, that sufficient emphasis should be laid on the particularity of the administrative offense, setting up the legal interpretation system led by legislative interpretation and judicial interpretation and supplemented by criminal cases and the acknowledgement of the role of interpretation of judges to solve the problem of application of law for administrative offense flexibly and effectively.Secondly, beginning with the overall carryout of the objective obligations of procurators and analyzing the current judicial linkup of administrative crimes, it is clearly stated from both subject and object aspects that among all the reasons, the lack of procreation and supervision function plays the decisive role. It is suggested that the platform to share the judicial and administrative information should be established to set the rule of criminal cases first, mechanism of cases parallel recorded , enlarge the sphere of registration and supervision, deprive the right of disposition from public inspectorates, regulate the processing procedures of returned cases and perfect the legislative system.Thirdly, by comparative analysis of the necessarily of the factual nonciminal and despise of penalty to annotate the inevitability to set up the judicial discretionary power and raise several resolutions.Chapter IV Research on the issue of criminal principals for administrative crimes.Beginning with the characteristics, crime element and classification of administrative offense, this chapter discussed some theoretical and practical issues about the application in the principal of crime law for administrative offense.Firstly, it is historically reviewed and discussed that fault liability in supervision, actions to commit the order and artificial person crime. It is also emphasized the resolutions for cases like absence of artificial person in some administrative crime and disregard of corporate personality rule in company law.Secondly, by comparative analysis of the several studies for the irregularity of the administrative offense, it gives judgment on how to understand and command the irregularity under our current criminal law frame and the application of law.Thirdly, by analyzing and reasoning the strict liability system, it states the realistic sense in transacting the administrative cases. Meanwhile, it gives and overall view on the application of the strict liability system in administrative cases and raises the reasons for why it is recommended to apply the strict liability in our criminal law.Fourthly, the issue of the validity of application of law in space and time was researched. It gives and overall dissertation for the issue that whether the administrative offense remains prosecutable after fulfilling the absence of some articles in administrative law and rules. At the same time, analysis and reason is given to the issue of prescription for judicial interpretation of administrative offense on the basis of the characteristics of criminal law. Chapter V Research on the issue of administrative penaltyResearch on administrative offense is accompanied with the thought of despise of penalty and theory of social defense. This chapter takes the thought of restrain on penalty as the theory basis, starting from the dualism of the characteristic and essence of administrative offense, defining the concept of administrative penalty, stating the application of rule of"no other punishment for the same offense", clarifying the linkup and ambit of administrative penalty and administrative punishment. Also, based on the characteristics of administrative offense, by analyzing the examples, it is suggested that the death penalty should be abolished, penalty against freedom be perfected, punishment against competence be independence, the application of pecuniary be regulated and Exchanged Penalty System be established. According to the fact that penalty is carried out in society and community is comprehensively regulated, the design that administrative offense should be dealt with without criminal penalty and the overall security punishment be established is reasoned.