Research Of Administrative Law Enforcement And Criminal Justice Cohesion Mechanism

Administrative crime is offences that violated the Administrative laws, but it is much more serious and harmful than the general administrative offence. Because the standards and methods in administrative punishment is obviously inappropriate, which is against the criminal law principle of "guilty must be punished"; the criminal cases, which are suspected, by the administrative organizations, to be crime-related during the law enforcement, should be transferred to judicial authorities by appropriate procedure, and the judicial authorities should investigate and affix the criminal responsibility of the actor though criminal judicial process. However, at present, during the administrative law enforcement, the transfer mechanism focusing on administrative crimes has many problems, such as the "Four More, Four Less" phenomenon in the cases of breaking the order of socialist market economy, the widespread "Fine instead of penalty" phenomenon in administrative enforcement of law, etc. The severity and potential harm of these problems and phenomena become more and more common in administrative enforcement of law, which seriously threaten and disturb the order of the existing socialist market economy and legal system in our country. As a result, the solutions to the problems concerning "how to combine administrative enforcement of law and criminal justice under such particular circumstance, how to establish and perfect the combining mechanism, and how to carry it out" are the priority now, which needs perfecting from theoretical level and practice level. Judging from the current circumstance, the theoretical study on this field in our country is still greatly lagged behind. There is no unanimous understanding on the base and structure of combining the two laws, and there is no clear definition on the basic concept, denotation and connotation of this combining mechanism; furthermore, the legal guarantee, procedure arrangement and legal supervising system of the combining mechanism should be researched and summarized on the basis of practice. This dissertation focuses on the combining mechanism of administrative enforcement of law and criminal justice. Based on power relation, the theory of separation of powers, administrative criminal law, etc., this dissertation analyses the combining mechanism of administrative enforcement of law and criminal justice and tries to find out the deficiencies and their reasons of the existing combining mechanism, and finally proposes the theoretical and practice systems for a new combining mechanism that fits in the current situations in our country.The theoretical study in this dissertation is rooted in the power theory. Although it is difficult to distinguish administrative offender and criminal offender in the science of law; by analyzing the relation between administrative power and judicial power, we can find the theoretical basis for the combination of administrative enforcement of law and criminal justice, so that we can offer theoretical guidance to the administrative authorities, the judicial authorities and supervising authorities on the issues of punishing crime, maintaining social benefit and materializing social justice. By studying the legal bases and experience related to the "combination of two laws" in our country, this dissertation firstly analyses the method on how to establish and perfect specific laws and regulations, proposes the necessary conditions and factors in combining two laws and defines the content and scope of the combining mechanism. In addition, relying on the research of administrative and judicial professionalization, this dissertation also explains that the change in ideology might have a deep influence on the improvement of the legal environment in which "combining of two laws" is carried out and on the further development of socialist market economy. Moreover, borrowing contradictory theory, the theory of separation of power; this dissertation researches and analyses the basic concept, the denotation and the connotation of the combining mechanism, then discusses the means of improving the correspondence between the combining mechanism and legal basis, and eventually concentrates on the critical steps such as the arrangement of combining process, the supervision of combining mechanism, etc.Scholars payed lot of attention on this field, but the research were not sufficient. This doctoral dissertation launches the discussion of the "two laws link up" mechanism with the following proposes:first, through the innovation of theory research, provide some thoughts on the development of the theory on this field; second, through the overall collection, renewal and analysis of contents data, focus on the problems in practice, according to the sprit of the18th convention, formate a adaptable "two laws link up" mechanism, and provide practicable ways; third, analysis the problems of the existing mechanism, find out the problem of self-contradict source.This dissertation based on the investigation of administration enforcement and procuratorial working, with the background of "two laws link up" practice, adopts the method of comparison research to set up the framework. This dissertation would be divided in four parts:part one, the category theory, defining the concepts of administration enforcement of the law, criminal judicatory, administration illegal and so on. Part two, connection theory, analysis the possibility of the linking up of the two laws. Part three, practice theory, analysis the existing practice, finding out the reason why the mechanism does not function well, then offering some advices. Part four, improvement theory, make up the limitation of the existing mechanism, try to set up a framework to develop a better link up system.