On The Illegality Of Administrative Crime

Along with the expansion of administrative law since the 18 th century,the "administrative illegal behavior to implement punishment" becomes the essence of the normal society,which will inevitably lead criminals into the administrative criminal law and set up the new era.Administrative judicial dual governance model,the overall harder penalty,monistic legislation tradition and reality factors such as the legislative qualitative quantitative assembled the rule of law of the status quo,brings about the administrative crime be provided with the dual nature of administrative illegality and the criminal illegality.The relationship between the dual illegality established not only the constitutive elements of administrative crime,but also the key to solve "administrative law joining criminal law " judicial difficult cases.The principle of legal order of unity is a system method to judge the administrative crime,which concerns with administrative law and criminal law.On the one hand,system method is a fundamental method to realize the goal of constitution,which is unification principle in legal system(article 5).On the other hand,system method can prevent the judicial be "substituting one thing for another" or be a blind man in practicing cases on "administrative law joining criminal law",because system method could clarify the logic relationship and illegal structure relations between administrative law and criminal law about administrative crime.Legal order of unity means a system,which is perfect,operation coordination,consistency and continuity.At first,legal order of unity,under the ideas of the constitution,realizes through logic consistency and objective consistency in different areas(department).Secondly,it is to rely on internal concrete standard implements logic consistency and consistency of the value of life to give people a clear specification guidelines and implementation method of stability function in various law fields.Legal order unity depends on legislation to solve the need in the judicial level by the method of system explanation between different fields,the interpretation and explanation of the purpose method in the same law field and constitutionality explanation.On the other hand,it touches upon the relativity of illegality level,that is,if the behavior is illegal in other law field,when it meets the conformity of the constitutive requirements of the criminal law legislator may set the criminal illegality or not to do so because of the criminal law has the relative independence.If the behavior is illegal in the field of criminal law,it is also illegal in other law fields.In the construction of the law and the interpretation of the law,it should reflect the advantage of the illegal eclectic monism theory and its essential spirit.That is,legal order of unity is at the logical consistency of legitimacy level--as long as the behavior is legal in other field,even if its meet the conformity of the constitutive requirements of the criminal crime which shall not be set a crime in the criminal law.Meanwhile,the criminal law must maintain the consistency of legal evaluation and its alternative.On the other hand,if the action in the criminal law is legal,so it is legal in the other jurisdictions and vice versa.On the bases of the legal theory,combined with the status quo about the rule of law in our country,we can analyze and solve the dual illegality in administrative crime,and the principle and formula on administrative crime: when an action is legal in administrative law,even it is constitutive requirements in accordance with crime,it should be legal in criminal law.When an action is illegal in administrative law,if its unlawfulness is deserve being punish by penalty,it should be set a crime.Based on purpose and quality differences in the administrative illegal and criminal illegal,in the light of the using the efficacious formula on illegality theory of administrative crime,we can analyze the composition of the dual illegal mechanism in administrative crime and draw the following conclusions:On the objective constitutive requirements,the administrative illegal behavior restricts criminal offence and criminal offence relies on administrative illegal behavior.There is no illegal behavior in administrative law,there is no crime in criminal law.On the regulatory structure,the content of criminal practice behavior need to be composed and filled with administrative illegal behavior.In the amount of profit violation,the establishment of the criminal law needs to be based on law of administrative illegal profit violation and standards,this form should be sent illegality,realize the secondary protection function of criminal law.Administrative establishment,requests corresponding behavior type and the types of legal interest in the administrative illegal and criminal illegal.On the subjective constitutive requirements,sin and fault are only same in the basic legal theory.That is,on the basis of the objective elements and reference by the law of subjective psychological fact type structure,filter unless mental facts,making a subjective and objective of illegal side by side.Sin and fault have not restriction relationship between two kinds of subjective factors,which are independent and cannot replace each other.Thus,it does not take the place of criminal responsibility judgment in related criminal judicial interpretation on the administrative responsibility in traffic criminal,and the judiciary should independently review and judge the legal facts,such as "full responsibility" "primary responsibility" "equal responsibility issues ".On the other hand,the illegal deterrent reasons are homogeneous between the two kinds of illegality for eliminating a crime.As long as there is a kind of deterrent reason in legal proceedings,administrative illegal and criminal offence should be ruled out.The conclusions on two types of illegal deterrent are interchangeable and could be decided for each other.There is a "general principles" between the illegal deterrent reasons.The differences between deterrent reasons exists their quantity,it shows the overlapping in the applicable law and crossover phenomenon."Righteousness is uniform in all legal fields",Under the background of legal order consistency,an integrity of illegal deterrent systems should be established: to establish administrative legalization of illegal deterrent should be "powers as the center",and "right as the center” in civil law.With the increase in quantity they emerge in criminal law domain for the reason that the deterrent reasons of criminal illegal would adjust or add.