Study On Connection Of Criminal Law And Public Security Administration Punishment Law

Public security management punishment law and criminal law in the general provisions and specific provisions on many of the same or similar,punishment and administrative penalties for public security belongs to our country system of sanctions,piggybacked on the maintenance of public order and guarantee citizens lawful rights and interests.Therefore,people are used to call Public Security Administration Punishment Law as“small criminal law”.However,the major illegal behaviors could not be confused with violation of public security regulations after all,since they belong to different categories,Criminal Law belongs to penal laws yet Public Security Administration Punishment Law belongs to administrative laws,and the consequence of violating Criminal Law is greatly severer than that against Public Security Administration Punishment Law,otherwise fairness and justice would not be realized.The case that "The police caught the whore yet collected money as punishment,and a 15-year-old foreign girl was forced to continue whoredom" that occurred in Nanning of Guangxi affects people deeply.What caused the similar phenomenon that the criminal penalty was replaced by public security punishment?From the investigation it could be found that the policemen“complain”that the stipulations specific to a same behavior could often be found in Criminal Law and Public Security Administration Punishment Law simultaneously.In addition to introduction,this paper includes five chapters.Chapter One "The Theoretical Basis of Connection between 'Criminal Law' and'Public Security Administration Punishment Law"'.Social harmfulness is the essential attribute of crime.The theory of social harmfulness has three functions:criminal legislation,criminal justice and formal interpretation.In this chapter;the author mainly elaborates the supporting role of social harm theory on the convergence of the two laws from the function of criminal legislation.Criminal behavior and violation of public security management are both socially harmful illegal acts,the difference between them mainly lies in the difference in the degree of social harm.Using the criminal legislation function of social harm theory helps to define the scope of each of the two types of behaviors and reasonably configure the penalties.The first chapter includes the contractility,supplement and economy of the criminal law,which has the function of crime and incrimination in the criminal legislation,which helps to link up the criminal behavior and the violation of public security management.At all times and at home and abroad,forefathers have long put forward the principle of rule of law.The principle of legally prescribed punishment for a crime is the concentrated embodiment of the principle of rule of law in criminal law.It requires that in the course of criminal justice,the interpretation of legal provisions must be strictly interpreted,and the principle of legally prescribed punishment of a crime is also applicable to the confirmation of evidence.In accordance with the principle of the rule of law,if the law is expressly prescribed,it must be handled in accordance with the law,instead of“substituting fines for criminal punishment”.Chapter Two“Analysis of the Current Situation of the Connection between ' Criminal Law' and 'Public Security Administration Punishment Law,”,.It is precisely because of the problems in reality that it is necessary to study how to solve the problems.The“Public Security Administration Punishment Law" was also considered the importance of linking up with the criminal law when it was initially formulated.Therefore,in the general provisions and the provisions of specific provisions,the "Public Security Administration Punishment Law" has inherited the criminal law to a certain extent.However,the fact that the two laws have not been smoothly connected creates a real“trouble”.These parts of the poor convergence are as follows:1.The obstacles to the identification of acts;2.The obstacles to the punishment of conduct;3.The connection mechanism mainly discusses the problems in the investigation procedure.The dilemma in the connection of the two laws naturally leads to hidden worries in reality,and it is the external manifestation of the hidden worries that urges us to realize the convergence of the two laws.This chapter also analyzes and reviews the causes of the dilemma of convergence(legislative reasons,judicial and law enforcement reasons),in order to clarify which aspects should be taken to properly resolve the conflict and imbalance between the two laws.Chapter Three "The Connection between Criminal Behavior and Violation of Public Security Management".This chapter solves the first problem of the dilemma of convergence between the two laws.Correctly distinguishing and coordinating violations of public security management practices and crimes are the primary issues in bridging the"Criminal Law" and "Public Security Administration Punishment Law".This chapter is also the focus and difficulty of the full text.In this chapter,the author makes an investigation on the theory of criminal and administrative malfeasance between Germany and Japan,and draws a conclusion:The relationship between criminal conduct in our country and violation of public security management is closer to the relationship between criminal illegality and administrative irregularity in Germany;the administrative criminal law should be based on the historical and cultural tradition of our country and the actual national conditions.The current situation is not suitable for the comprehensive application of the theory of administrative criminal law.However,it is of great practical significance to study the administrative criminal law of the administrative lawbreakers from the perspective of dealing with the connection between criminal acts and violations of public security management.After analyzing the actual connection between the criminal behavior and the violation of public security management,this paper tries to find the necessary link path between the criminal act and the violation of public security management,which is the innovation of this paper.According to the relationship between administrative malfeasance and criminal wrongdoing,this paper proposes a revision plan for the attribution of acts of the "Public Security Administration Punishment Law".In this paper,the author revises the scheme proposed by the scholar Jin Yi to link up the criminal behavior with the penalty of violating the public security management according to the dimension of "value" and "penalty",and firmly grasps the theoretical basis of the connection between the two methods,the author puts forward that some of the behaviors of violating the public security management that have the core value nature crime attribute should be regulated by the criminal law,and take the case of theft as an example in order to eliminate the worry that some scholars are worried about the rapid increase of the crime quantity.According to the dimension of "penalty",the pure behavior of violating public security management and the behavior of violating public security management indirectly connected with the crime are rearranged,and the types of punishment below the level of administrative detention are set up,and regulated in line with“Public Security Administration Punishment Law".At present,the expedient way to establish a direct link between administrative detention and the crime is to make administrative detention judicialized.If this part of the act constitutes a crime,it will still be dealt with in accordance with the criminal procedure,until the time is ripe.It can be brought into the scope of administrative criminal law.The author also discusses the three types of hot issues,namely the regulation of drunk driving,the issue of the regulation of simulated guns,and the issue of MLM's regulation,and discusses the legislative convergence between criminal acts of three types of hot issues and violations of public security management practices.Legislation is not a matter of a short duration of time,therefore,the criminal act and the punishment for violating the public security management should be obtained by means of judicial convergence at the present time.Looking through the existing research materials,most scholars find out the path of judicial solution from the angle of substantive explanation,the author finds a new path or snap course.When the boundary between sin and non-crime is unclear and the social harm is indistinct,and the "seriousness of the case”and "serious consequences" are used as the connecting points of the behavior,the author proposes to apply the theory of personal danger to solve the problem of determining the nature of the act.Chapter Four "The Connection between Criminal Penalty and Punishment in Respect to Management of Public Security".This chapter solves the second problem of the dilemma of linking the two laws,including the applicable principle,the applicable method,the connection of the types of punishment,and puts forward some suggestions on how to link the punishment and the public security management punishment to fill the gap in the sanction system after the abolition of the system of re-education through labor.In principle of application,the principle of double application should be chosen,that is,the principle of merger application.In the applicable method,for the punishment of public security management after the application of the penalty,the penalty of similar content should not be in the punishment,the penalty of different content can be punished again;For the punishment after the application of public security management punishment,the content of similar penalties can be offset,different content can be used.In the connection of the types of punishment,through the summary of the articles of law,it explains the expansibility of the use of administrative detention,and discusses the balance between administrative detention and criminal detention,fixed-term imprisonment,public control and criminal coercive measures;in terms of the interface between fines and fines,first of all,limit or cancel the amount that is applicable to unlimited fine,set and fine;secondly,increase the clauses applicable to fines in the "Public Security Administration Punishment Law" so that the fines are in the status of core punishments.In the connection of qualification penalty and qualification penalty,the author puts forward some perfect measures to solve the problems such as the imbalance between the exit of qualification penalty and qualification penalty,the marginalization of professional qualification penalty and the exclusion of unit crime from the scope of application of qualification penalty.The blankness of the sanctions system caused by the repeal of the reeducation-through-labor system is a hot issue at present,and scholars have put forward their own solutions from different angles.This paper argues that the external reconstruction scheme is less realistic than the internal absorption scheme at least at present.The Internal Absorption Plan intends to include the unregulated behavior of the "Public Security Administration Punishment Law" in the reeducation through labor and the behavior that cannot be effectively regulated into the scope of the "Criminal Law" regulation,while the others are regulated by the "Public Security Administration Punishment Law".Chapter Five "Improvement of the Connection Mechanism between Criminal Justice and Public Security Administrative Enforcement".This chapter solves the third problem of the dilemma of convergence between the two laws.Although this paper mainly discusses the connection between the“Criminal Law”and the "Public Security Administration Punishment Law",it can not be denied that the application of substantive law and the realization of legal justice embodied in substantive law need not only the application and guarantee of procedural mechanism,but also the fairness of such procedural mechanism.The public security organ is the main body applicable to the“Public Security Administration Punishment Law",which bears the heavy responsibility of public security administrative law enforcement,but at the same time,the public security organ is also the detection department of criminal case and bears the heavy responsibility of criminal justice.Therefore,in the specific handling of cases,the“Criminal Law”and the "Public Security Administration Punishment Law" should be applied accurately,and the link between criminal justice and the administrative law enforcement mechanism of public security should be implemented.It is of great significance to realize the connection between the“Criminal Law”and the "Public Security Administration Punishment Law".This chapter includes standardizing the investigation procedure as a case investigation procedure,establishing the judicial system of administrative detention,improving the transformation of evidence from public order cases to criminal cases,and optimizing the procuratorial supervision mechanism in the process of convergence.