Research On The Boundary Between Administrative Violations And Criminal Acts

The division of administrative violations and criminal acts affects the size of criminal circles as well as the protection of people's basic human rights.Theoretical community has put forward criteria to distinguish administrative violations and criminal acts such as the quality differentiation theory,quantity differentiation theory as well as the quality and quantity differentiation theory,but there still exists relatively huge differences when it comes to the key issue,namely the “essence of crimes” and its connotations,which lead to the blurring and homogenization of the boundary.Administrative violations and criminal acts also differ in the standard in application.Therefore,it is necessary to study the boundary between administrative violations and criminal acts and the existing problems so as to reconstruct the criteria for the boundary.This dissertation has about 150,000 words and is divided into six parts,the main contents are as follows:The first part,introduction.In this part,the author explains the reason for choosing this topic,introduced the research at home and abroad,the significance of this study,the research method and its innovations.The second part studies the theoretical boundary between administrative violations and criminal acts.By studying the concepts,connotations and distinguishing criteria of administrative violations and criminal acts from home and abroad,we can find that the theoretical boundary is blurred and has the following problems in theoretical studies: First,there still exists relatively huge differences when it comes to the concepts and the essential characters of the basic theories such as the administrative violations and criminal acts,which would exert great influences on the distinction.Second,the focus of the study is inaccurate.The scholars have put forward distinguishing criteria like the quality differentiation theory,quantity differentiation theory as well as quality and quantity differentiation theory,but the current study highly emphasizes the quality and quantity differentiation theory with quality as the basis,which results in the misunderstanding that no essential differences exists between administrative violations and criminal acts.Third,the research ideas about this subject are restricted.It fails to find a right angle,and to study the boundary from a more macro and disciplinary perspective.In the theoretical studies,it fails to realize that the core elements in distinguishing administrative violations and criminal acts should be the nature of crime,it hasn't taking the feature of crime's nature,that is crime deserve criminal penalties,as a starting point to study the essence of crime.,Nor has it found that the basic premise of determining a crime—the regulation object of criminal law—should be the fundamental standard in distinguishing administrative violations and criminal acts.Without the right understanding of the regulation object of criminal law,it's not possible to illustrate the nature of crime or clarify the boundary between administrative violations and criminal acts in theory.The third part studies the practical boundary between administrative violations and criminal acts in our country.In our unique administrative violations—criminal acts binary legislation model,the legislative boundary between administrative violations and criminal acts appears to be that “criminal law has small scope while administrative law has large scope” at the macro level,the boundary appears to be separated and at the same time crossed and coincided at the medium level.And at the micro level,the boundary,under the influence of “quantitative” and blank description of crime,are largely elastic.In recent years,legislators have vigorously promoted the criminalization of administrative violations and have accelerated the expansion of criminal law into administrative areas.In the law enforcement and judiciary,the relatively general distinction defined by laws requires filing standards,judicial interpretations and other standard documents issued by the public security organs,procuratorial organs and people's court to further refine the standards.In practice,determining the nature of administrative violations or criminal acts needs to go through the administrative organ-procuratorial organ-judiciary organ three-stops procedure.In the law enforcement and judiciary,the boundary has some features,for example,objective results were used as judging criteria,administrative organs and procuratorial organs are responsible for handling the cases separately,and the court tends to widen the application of crime etc.The practical boundary has the following problems: First of all,due to the influence of the legislative techniques and the conflicts between legislative provisions and judicial applications,the boundary is blurred.Besides,changes of the boundary is of great instrumental significance,subjecting to the influences of national demands and the value of order.What's more,the boundary shows a tendency of the generalization of criminal law,emphasizing the early introduction of criminal law into administrative law.The root cause of these problems lies in: inaccurate definition of the nature of administrative violations and criminal acts,which results in the problem of viewing the differences according to results and figures;neglecting the study upon the regulation objects of criminal law,failing to find the functional definition of criminal law and administrative law,which leads to the generalization of criminal law;failure of using the ultimate guiding goal defined by the constitution to guide legislative and judicial activities,leading to the criminal law instrumentalism.The fourth part studies the standard of value of the boundary between administrative violations and criminal acts.The nature of crime depends on the connotation of the regulation object of criminal law,therefore,the boundary between administrative violations and criminal acts is ultimately determined by the regulation object of criminal law.To explore the regulation object of criminal law,penalties must be taken as the starting point.The only reason why the state are able to use penalties to deprive and limit the basic human rights of the criminals is that it need to guarantee the human rights of all citizens.Therefore,the relationship between the basic rights of individual citizens and the legal system of the country is considered as the manifestation of the regulation object of criminal law,and actual content of it is the relationship between the human rights of all citizens and the basic human rights of individual citizens.Taking the regulation object of criminal law as the starting point,when determining the core of the boundary,first,the core of the boundary should be based on the nature of crime.The essence of crime to lies in that it infringe upon the human rights of all citizens,given the seriousness of this kind of infringement,it is absolutely different from administrative violations from its nature,it appears to be an escalation from quantitative change to qualitative change.Second,the core of the boundary is affected by the “quantitative” factor of crime.As the constitution of a crime is the external and specific manifestation of the nature of crime,it bears the unity of quality and quantity that reflects the fact that criminal acts deserve penalties;At the same time,due to the influence of traditional culture and the binary sanction in China,it is necessary to keep the “quantitative” factors of crime at the current stage.Third,the core of the boundary is influenced by the incriminating threshold of administrative violations.The “qualitative” standards of the incriminating threshold include: the behavior must damage the common order of national security,public security,economy,public order etc.,the use of administrative punishment can not play a due deterrent role,but on the contrary would encourage relevant illegal actions,the social order of relevant fields are impossible to maintain without the intervention of criminal law,the interests and safety of the majority will be seriously threatened.The “quantitative” standards include: the standard of the quantity of incrimination must be significantly higher than that of the upper limit of the behaviors that deserve administrative punishment;for administrative violations that infringe general values and interests,there must be a relatively high starting point.Taking the regulation object of criminal law as the starting point,when determining the periphery of the boundary between administrative violations and criminal acts,first of all,the connotation of the human rights of all citizens is relatively stable in a certain period of time,therefore the criminalization of administrative violations should be conducted in a proper manner,which mainly includes improving the criminal legislation towards organized crime such as terrorism,extremism,financial fraud,monopoly,monopolistic behavior like abusing market dominance and illegal centralization,computer and cyber crime,smuggling,gangsterdom,drug and cult.At the same time,we need to consider some of crimes that have a relatively small threat to the human rights of all citizens as administrative violations,including victimless crimes,some economic crimes,purely social management crimes and crimes defined by nominal legal provisions.The reform of law and order violations should focus on strengthening its connection with criminal acts and strengthening public security management and punishments;the reform of the original reeducation through labor program should set up different treatment for different perpetrators and behaviors,and it should be treated as administrative violations,be decriminalized or use security measures respectively.The fifth part studies the technical standards of the boundary between administrative violations and criminal acts.In the legal system,administrative law aims to establish a reasonable administrative order,which belongs to the fundamental law;the criminal law is aimed at maintaining the social relations established and confirmed by administrative law and guaranteeing the proper functioning of administrative law,it belongs to security law;in social governance,administrative law is at the core,it is a main regulatory department for illegal acts;Criminal law pursue the stability of the national legal system,only when the operation of administrative law system were being threatened can criminal law intervene in the social governance,and a cautious and reasonable mind should be kept when criminal law intervene in social governance.The differences in the functions and orientations of administrative law and criminal law determine that when managing administrative violations,administrative law should be superior to criminal law as a key department;administrative power has priority over judicial power;administrative penalty has prerequisite significance over criminal penalty.In distinguishing between administrative violations and criminal acts,given the functions and orientation of the administrative law and criminal law,the “no alternative” principle of the Criminal Law must be taken as technical standard.The “no alternative” principle in legislation should be reflected in reasonably determining the limits of criminal law's intervention in the administrative field,minimizing the area of application of the criminal law,and providing standards for administration and the judiciary with the optimal criminal law-administrative law system.First,the binary legislative model should be fine-tuned in order to establish an interconnected and strict network of administrative law,strengthen the prerequisite role of administrative law and impose certain restrictions on the scope,time and limits of criminal law's intervention in the field of administration;Construction a penal code—accessory criminal law legislative act,only stipulate administrative crimes that are of general interest to ordinary citizens,and stipulate professional and technical administrative crimes in the accessory criminal law.Second,the clarity of criminal law should be ensured,the relationship between specific and abstract legislation should be properly handled,techniques such as blank description about crime,miscellaneous provisions and quantity of crime should be vigorously improved.The “no alternative” principle in administration reflects in that in order to ensure the economical efficiency and minimality of criminal law's intervention in the field of administration,administration should play a basic role in distinguishing administrative violations and criminal acts.First,the operation of administrative power should be further standardized,the administrative power should be controlled in accordance with the law,and the effective exercise of administrative power should be ensured.Second,the basic role of administration in filtering administrative violations should be played through continuously reinforcing the daily administrative functions of administrative agencies,clarifying the powers and functions of administrative law enforcement departments and strengthening effectiveness of the punishments toward administrative violations.The “no alternative” principle in the judiciary reflects in the fact that the functions of the judiciary are mainly resolving disputes and that the judiciary should maintain relative restraint in the face of legislation and administration,but in order to realize individual justice,it must play certain dynamic role.First,the judiciary must respect the legal order constructed by legislation towards the boundary,being restricted somehow when it comes to the interpretation of subject,contents,approaches and procedures.Second,a cautious mind must be kept when the judiciary intervene administration,adhering to the basic prerequisite role of administration,to the proportionality of sanctions and to the effectiveness of the adjusting results.Third,when determining the nature of specific criminal acts that contain plots,miscellaneous provisions,and blank description of crime etc.,judge's discretion should be played,and each subjective and objective factors and their role in crime constitutions should be examined comprehensively,and certain rules and principles should be adhered to..The sixth part studies the emotional standards of the boundary between administrative violations and criminal acts.The protection of human rights with the premise of people being the master of the country is the ultimate value goal of our constitution.Therefore,in distinguishing administrative violations and criminal acts,the emotional standard should be the common sense,common rationale and common mindset that reflect the universally recognized basic experiences,principles and sentimental tendencies.In the first place,humanity should be taken as the starting point,a balance should be found between the interest of the nation and of the individuals.The emotional standard that trigger the criminal penalties when distinguishing between administrative violations and criminal acts should be properly handled,the emotional standard should be that the public feel unbearable because of the serious threat caused by the action upon their health,freedom and properties,and that the action deserves punishments;promote the harmonious co-existence between the value of order and the value of individual freedom,under the circumstances that the action does not have direct threat to the legal system as a whole that represents the human rights of all citizens,the illegal acts that can be handled by administrative measures shall not be included in the regulation scope of criminal law in the name of protecting public interest or of political end;it is necessary to pay attention to strengthening various social and administrative measures to deal with the general harmful behavior that has not yet threatened the operation of the national legal system,and to pool the main judicial resources on crimes that seriously endanger the society,and consider the actions that has not yet threatened the national legal system as administrative violations according to the actual conditions.Besides,we must adhere to the people-centered approach,rationally examine public opinions,and ensure that people's universal experience and values are reflected in legislation and the judiciary.Adhere to open legislation,democratic legislation,and broaden the access for public participation in legislation;be particularly cautious when dealing with controversial administrative violations in the process of criminalization,and fully investigate and deliberate in order to seek greatest common ground.In the judiciary,the role of people's jurors should be redefined,giving full play to the people's juror's advantage in fact-finding and in distinguishing crime and non-crime;improve the criminal reconciliation system,respect people's right to choose when determining the nature of minor administrative violations.On top of that,we should use conscience as the balance,and embody the management with conscience in the judiciary.First,we should stand on the public's stand and abandon the instrumentalist view of criminal law when interpreting legal rules so as to ensure the interpretation of specific provisions is in line with the public's mainstream value;use the method of substantive interpretation,and adhere to the principle of unification of subjectivity and objectiveness,forms and results shall not be regarded as the only factors during interpretation.Second,when it comes to the conviction,it is necessary to make substantive inspection of the conformity of the constitutive elements of the crime,fully consider the legal effects and social effects of the conviction,and make reasonable use of the thirteenth article of the criminal law to non-criminalize misdemeanor.