On The Boundaries Between Administrative Violation And Administrative Crime

Being at the rising legislation of administrative crime, from the conceptual analysis of administrative violation and administrative crime, it is the core content of the article that the author will analyze the difference between the administrative violation and administrative crime under the hierarchical structure model and analyze the factors that will affect the distinguishing of the administrative violation and administrative crime.The introduction gives how the author select the subject, introduces the theoretical significance and practical significance, combs the main research results and points of view about distinguishing the administrative violation and administrative crime at home and abroad. The article mainly adopts such research methods as comparative studies, normative analysis, document studies, historical analysis and case studies.Chapter one defines the concept of administrative violation and administrative crime. Administrative violation is an act that the administrative counterpart deliberately or neglectfully violates administrative laws and regulations, infringing the rights of the state, society or individual, the essence of which is destroying the administrative affaire of public administration and public service order. Administrative crime is an act that an actor violates administrative laws and regulations so seriously that the person should be punished by criminal law. Distinguishing the administrative violation and administrative crime should adopt the theory of differentiating in quantity, while distinguishing the administrative management policy and crime police should consider the essential factors. The administrative crime is the characteristic of administrative dependence.Chapter two studies the difference of law scope between the administrative violation and administrative crime constitution. The chapter is not only the logical beginning of distinguishing the administrative violation and administrative crime, but also the analyzing structure of the article. First, the part set up the hierarchical illegal structure as an analyzing model, analyzing the systematic difference between the administrative violation and administrative crime. Under the hierarchical illegal structure, the part studies the difference of constituents, illegal, and responsibility between the administrative violation and administrative crime, following the requirement of unity of law orders.Chapter three studies the constituents of the administrative violation and administrative crime. The subject of the administrative violation may involve the other persons, besides the illegal actor, while the subject of the administrative crime only involves the illegal actor. The quantity of the administrative violation is much lower than that of the administrative crime. The administrative violation has its special features, such as limited scope, dynamic nature and consequence without value. The part studies the questions that how to be punished by criminal law when a person has been punished by the administrative law and regulations. The author questions the present legislation about the incriminated of administrative violation. The main deficiency of present legislation is unreasonable of being incriminated, showing the unstable root of being incriminated, and inconformity with objectivism of criminal law. Finally, the part studies the scope of harmful consequences, pointing out that the consequence elements of the administrative crime are the actual harm to the legal benefits or the possible danger protected by criminal law.Chapter four studies the illegality by which administrative violation and administrative crime can be differentiated. The part thinks that legal interests are the main base of being incriminated, and should consider the infringement of concrete legal interests, that is to say, it is much great and serious that the legal interests have been infracted. The part studies the significance of which the unauthorized act should be differentiated between the which administrative violation and administrative crime. Although obtaining administrative permission can prevent the illegality both in the administrative law and criminal law, it is another thing that distinguishing between the administrative violation and the administrative crime if the permission be differentiated as special administrative permission and controlled administrative permission. When incriminated, it is lower conditions by which the violation of special administrative permission should be punished by criminal law, that is to say, it will be incriminated only if the administrative law or regulations be violated. Meanwhile, it is higher conditions by which the violation of controlled administrative permission should be incriminated, that is to say, it is requirement that the administrative law or regulations will be violated seriously. Crime quantity is an important measurement of degree of illegality, therefore, the crime quantity should be treated differently in criminal law. In terms of amount, as far as the unaccomplished crime, the amount of being incriminated must reach what is worth being published by criminal law. With regard to cumulative amount, it is that each act should be incriminated, or the basic act has violated law so much that it should be incriminated. In terms of circumstances, serious circumstance is a whole measurement of act, and the key elements by which crime and noncrime will be differentiated. In the administrative crime, serious circumstance is the dividing line by which administrative violation and administrative crime will be differentiated. That the serious circumstance is regarded as incriminated conditions in the judicial interpretation should be limited by legislation. The terms that express the circumstance should be regulated.Chapter five studies how to call to account while distinguishing the administrative violation and administrative crime. At present, the responsibility conditions of administrative violation in the administrative law are vague and disuniform, by studying aboard legislation experience, the main responsibility conditions of administrative violation in our country should be subjective fault, while the presumption of fault should be permitted, limited to the presumption of negligence. The part further studies the asymmetry of responsibility conditions between the administrative law and criminal law. In consideration of the different phenomenon such as interlace, emergent structure, harmony, etc, in different scope of law, it should be kept consistency and harmony in the responsibility conditions of administrative violation and administrative crime. The part focuses on the questions about being incriminated because of negligent dangerous act. It is the first consideration that it is to protect life, health, and safety if the negligent dangerous act should be incriminated. In order to protect the unity of law order, the knowledge system of violation in the administrative law and criminal law, that is to say, the theory of responsibility should be adopted in the administrative law, while the theory of responsibility has been adopted in the criminal law.