Study On Misdemeanor Problem In China

Sanction is a very important legal system, which is dispersed in the criminal law, administrative law and civil law. Sanction system require a good connection between legislation, jurisdiction and law-enforcement, in order to form a legal system. For a long time, there are some problems in our country such as boundary fuzzy in laws and the sanction system is unreasonable. The problems not only effect the unified of our socialist legal system, but also violate the human rights. The main problem is to distinguish of minor crime and illegal activities. So it is necessary to establish Chinese misdemeanor system.Neither the right infringement theory, legal interest infringement theory, normative violation theory nor the social harmfulness theory can’t explain the essence of crime. The crime is a dualistic structure, which on the criminology is means acts of social harmful and punishable, on the penal law is acts of criminal illegal. So we should combine the essence concept of misdemeanor and the normative concept one to make a new concept. That is, the acts which is harmfully illegal, and should be punished by judicial process. The new concept contains three sub concepts, criminal misdemeanor, administrative misdemeanor and civil misdemeanor.About the legislation mode, there are “merge mode” and “discrete mode”, both has its advantages and disadvantages. To China, the main influential factors are construction of law system, culture of criminal law and the views of criminality, concept definition mode of crime, development of criminal law and its stability, etc. Chinese misdemeanor legislation should take the relatively independent mode, which means the misdemeanor belonged to criminal law while the legislation outside the penal code. So we can take some civil harmful acts and administrative illegal act as misdemeanor, and have a clear limit from felony.The range of criminal misdemeanor can be limit to the penal code chapter of fourth, fifth and sixth, what may be punished by 3 years in prison below. There are 132 charges. “light & light” should be the policy and principle, which means misdemeanor to be lesser punished. We should set up attempt no-punishment, perfect criminal detention, control punishment, property penalties, qualification penalties, community service punishment and non penalty methods. On the procedure, we suggest the basic level judicial organs take the jurisdiction in a summary procedure. And no detention, reduce the scope of prosecution, apply reconciliation and an open prison, etc.The fifth chapter construct the administrative misdemeanor system. Based on the administrative and jurisdiction relational theory and security measure theory, we suggest take the long time freedom administrative sanction and coercive measure as administrative misdemeanor. That is including such,(1) The acts violate the administrative law and should be punished by over 5 days detention.(2) The acts endanger national security, public security, person’s safe but do not constitute a crime.(3) Abolish asylum education system, take it as public security penalty.(4) Judicature of asylum rehabilitation.(5) Judicature of compulsory abandonment of drug habits. We also can set up security measure systems, administrative direct prosecution system, police court systems. In a way, administrative misdemeanor is the proper meaning of administrative crime(mala prohibita) in our country, which means the revoking license, serious fine and so on may become an administrative misdemeanor.Chapter sixth constructs the civil misdemeanor system. The entity criminal and civil cross problems will be a key, what needs an exploration on their origin. The criminal law and civil law go through a mix-separate-reconcile way, and the following punishment system turns on to be rational and mature. The punitive compensation system is a typical, which has function of punish, deterrent, appease and excitation. These functions illustrate it is a criminal system. So the civil misdemeanor is the acts that willful infringement of other’s rights, serious violation of public order and good morals, should apply punitive compensation system. According to the contract law, patent law, food safety law, tort law and so on laws, we can lay down the scope of the civil misdemeanor. Meanwhile, there are some acts infringe other’s rights seriously but not yet apply the punitive compensation system, such as adultery leads divorce, from ruin, may be a experimental product to be first absorbed in the system. The punitive compensation is main mode for civil misdemeanor, and we suggest it joint to credit system. In a civil misdemeanor case, the plaintiff can direct sue to the basic level court. The defendant cannot be detained or have a criminal record.