| How to balance the contradiction between the goal of comprehensive social governance and criminal law’s adherence to the principle of modesty and restraint has become a topic that criminal law scholars should consider under the situation of strengthening the trend of criminalization.In my opinion,throughout the development of criminal law in the world,criminalization and decriminalization are concurrent problems rather than absolute trend,that is,in the process of criminalization,the decriminalization of the old type of behavior and the criminalization of the new type of behavior are accompanied.The adjustment of criminal circle depends on the migration and change of social values,and the constant trend of the latter remains unchanged.Therefore,the continuous adjustment of criminal circle is also necessary.In a word,the development of criminal law must be the process of joint development of criminalization and decriminalization.Under the premise of dramatic changes in the social environment,it is not the best choice for the development of criminal law to restrict the process of criminalization or deliberately narrow the criminal circle.Under the premise of fully realizing the function and value of criminal law,balanced development of decriminalization and penalty alternative measures is inevitable to buffer The effective way of the negative effect brought by the criminalization.In view of the frequency of the application of administrative penalty and its high relevance to daily life,administrative penalty can have a more profound impact on the subjective thought and objective behavior of the actor in terms of ideology and legal effect.The position and role of administrative penalty in the process of maintaining legal order should be fully valued.At the same time,in the low related legal interest administrative crime,the administrative punishment can become the constituent element of the penalty,which is embodied in the process of administrative punishment → penalty.At the same time,the administrative punishment,as the element that affects the punishability,can be used as the cause of penalty relief,which is embodied in the process of penalty → administrative penalty.Therefore,we can try to build a two-way flow system of administrative penalty and penalty in the limited types of administrative crimes,and realize the flow of penalty within the determined scope,so as to provide different options for alternative measures of administrative crimes.The First Chapter is about the classification of administrative crime in China,which aims to study and clarify the operation scope of administrative punishment and penalty flow mechanism.The value and significance of classification research is to provide a logical premise for further understanding and solving problems,and legal classification research should also serve specific research purposes and application goals.Because the traditional classification of administrative crime can’t solve the premise problem of the double punishment flow mechanism discussed in this paper.At the same time,because the mode of "qualitative + quantitative" is adopted in the criminal identification of our country and the legal punishment is increased with the increase of aggravating factors,there are different types of existing administrative crime in the same crime.The criminal law provisions are regulated by the way of "administrative violation + aggravating factors" The established crimes have the characteristics of natural crimes or criminal crimes,which are not the operationcategory of administrative punishment and penalty flow mechanism discussed in this paper.Some scholars think that "the lack of legal interest" is the congenital defect of the statutory offense(administrative offense),the reason is that the statutory offense(administrative offense)is a crime that simply violates the prohibition norms,is a simple disobedience to the state regulations,and does not substantially violate the legal interest.However,this view ignores that the legal interest itself is a variable function,and the administrative illegality itself is an act of infringing the legal interest.Only when the administrative illegality is included in the scope of criminal illegality,we need to consider the value transfer caused by the change of the times.Therefore,the problem of administrative crime is not the "lack of legal interest",but how to accurately define the legal interest infringed by administrative crime.Therefore,according to the relationship between the essential act of administrative crime and the infringement of legal interest,that is to say,according to the abstract relationship between the act and the infringement of legal interest,which can be confirmed by natural science,the existing administrative crime can be roughly divided into the administrative crime of low related legal interest and the administrative crime of high related legal interest.The administrative crime of low related degree only refers to the administrative crime without causing actual damage The abstract dangerous crime of fruit includes a large number of acts that may infringe or threaten the protection of legal interest,a large number of acts that cause the infringement of legal interest due to the aggregation of similar acts,and the preparatory crime that infringes on legal interest,etc.;while the administrative crime of high degree of Association refers to the actual crime that causes the specific consequences of damage or the compound crime that has the elements of the actual crime,the specific dangerous crime and the abstract dangerous crime.According to the above classification,the administrative crime name specified by the way of "administrative violation + aggravating factors" can be divided into administrative crime with low related legal interests and administrative crime with high related legalinterests according to the degree of crime quality,and different measures can be taken to deal with it.Compared with the administrative crime with high connected legal interests,the criminal illegal content of the crime with low connected legal interests is less.Although the risk of its creation is not allowed by the law,but because of the lack of actual consequences of damage,it can be reduced or relieved by other corresponding measures,and it can be considered to relieve the application of penalty through administrative penalty measures.The Second Chapter is about the process and legal basis of administrative penalty as the condition of the establishment of penalty,which aims to explain the trend of the flow from administrative penalty to penalty.Referring to the theory of criminal and administrative illegal division in German criminal law,this paper analyzes and explains the position and role of administrative punishment in the determination of administrative criminal illegality.The illegal contents of administrative punishment mainly include the objective harmful consequences caused by the administrative illegal act and the subjective fault and personal danger of the administrative illegal actor.From the perspective of objective harm,the similar behavior after administrative punishment shows that the number of acts has reached more than two times,and the objective harm of the similar behavior of more than two times is mainly manifested in the accumulation of quantity;from the perspective of subjective crime,the similar behavior is still carried out after administrative punishment,which shows that the actor has not given up the subjective will of the illegal behavior even though he knows that the behavior is illegal Its disregard and denial of legal provisions shows that the personal danger increases with the number of similar acts.In our country,the theory of constitutive elements of the determination of criminal wrongfulness is mainly defined from the perspective of the elements of conduct and responsibility,and more from the objective point of view,but the subjective elements of the actor are not evaluated.As an alternative measure,taking administrative punishment as the condition of cognizance of criminal lawlessness canmake up for the deficiency of the theory of elements of crime better from the perspective of subjective evaluation.On the basis of affirming the rationality of administrative punishment as the criminal illegality of administrative crime,this chapter combs the judicial application of administrative punishment as the conditions for case filing and prosecution,the conditions for upgrading the legal punishment,the conditions for heavier punishment within the legal punishment range,and the conditions for determining the subjective knowledge of the perpetrator.Through comparative study,it is found that administrative punishment is widely used in the criminal illegality identification,and it is used in the complement line The subjective identification of political prisoners plays an important role.This chapter continues to discuss that in the process of administrative punishment as the conditions for the establishment of penalty,there may be inclusive and parallel relationship between administrative punishment and penalty,that is,administrative punishment can become the conditions for the establishment of penalty,and can also be combined with penalty.Administrative punishment can be regarded as the conditions for the establishment of punishment,or it can be punished together with punishment.The fundamental reason lies in the complementarity of administrative punishment,that is,the legal effect of administrative punishment as an administrative illegal act which has not yet reached the criminal standard,and the legal effect of punishment which has reached the criminal standard can be connected with the legal sanction means.Therefore,administrative punishment can be regarded as a supplementary means of punishment,which can not reach the criminal standard The punishment or the minor infringement of legal interest which is not enough to be punished should be regulated.At the same time,the rationality of recidivism system provides a reference path for the argumentation of administrative punishment as the elements of penalty establishment,that is,the subjective malice and personal danger of the actor are the premise of the inclusive relationship between administrative punishment and penalty,and the basis for the re implementation of similar illegal actsis the subjective consciousness of the actor’s refusing to repent and the continuously upgraded personal danger With the upgrade of the amount of crime,the responsibility that the actor should bear is also upgraded,which is manifested in the flow from administrative punishment to penalty.As an aggravating penalty of administrative punishment,penalty embodies the idea that personal danger is the justification of heavier punishment.However,the two relations between administrative punishment and penalty do not violate the principle of repeated evaluation,because both international conventions and national constitutions limit negative evaluation to criminal procedures and sanctions.At the same time,the two sanctions of administrative punishment and penalty do not constitute homogeneous punishment.Administrative punishment cannot achieve the same effect as penalty,and it is not a prohibited repeated evaluation The content of price should be excluded only if it has the same legal effect as penalty.The Third chapter is about the process and legal basis of administrative penalty as the cause of penalty relief,which aims to explain the trend of penalty flowing to administrative penalty in the mechanism of administrative penalty and penalty flowing.This chapter takes the clause of "exemption for the first offence" of the crime of tax evasion as an example to discuss the theoretical basis of the performance of administrative penalty as the cause of exemption from criminal responsibility.According to the objective penalty conditions of German criminal law,as a measure after the execution of an act,the effect of an act is to make up for the consequences of the violation caused by the act in time,and to eliminate the established punishability retroactively.Therefore,it has the advantage of the evaluation of lifting the penalty,which should be positively affirmed and exempted from the penalty.From the perspective of theoretical choice,the interpretation of the doctrine of criminal law of this clause should apply to the subject matter of penalty relief(reliefafter the event),rather than the general subject matter of penalty rejection(accompanying rejection).As the objective conditions of punishability,the reasons for individual’s punishment relief are all the factors influencing conviction and sentencing outside the system of crime theory,but different from the objective conditions of punishability,they do not directly affect the constitution of criminal responsibility.That is to say,on the premise of not affecting the criminal punishment,the legislator sets up a "Golden Bridge" for the actor to return,does not investigate the criminal responsibility of the actor,eliminates the criminal punishment from the perspective of the rationality of the criminal purpose,and relieves the criminal burden of the actor,which embodies the criminal policy purpose and value orientation of balancing social contradictions and restoring social order.By combing the relevant provisions of the criminal law of China,we can find the traces of the application of the theory of the subject matter of the individual’s penalty relief,and explain that under the premise of the criminology of the criminal law of behavior,the legislators of China affirm the subjective attitude of repentance and the value of the objective act of compensation for the damaged social relations of the actor,but in the process of application,they are often regarded as the discretionary circumstances of light punishment in judicial activities The discussion of criminal punishment should be included in the legislative framework.Therefore,it is necessary to further expand the scope of legislative application of the theory.Back to the composition of the flow mechanism of double punishment,the fundamental reason why administrative punishment can play the effect of lifting punishment is the homogeneity of administrative punishment and punishment.Administrative punishment does not include the subjective responsibility elements,and does not need to determine the subjective knowledge content of the actor.Therefore,administrative punishment can be used as an independent objective factor that affects the content of the criminal responsibility of the act,and it is in line with the principle of criminal responsibility The implementation of the rule can beimplemented through the implementation of administrative punishment afterwards,as the basis to eliminate the criminal punishment of the implementation,so it is exempt from criminal punishment and realizes the flow of punishment.In the administrative crime of low related legal interest,because there is no actual damage consequence,the damage to legal interest is reflected in the risk of legal interest infringement,so there is a space for legal effect to be repaired,that is,through the administrative punishment of the actor,the criminal punishment of administrative crime can be eliminated retroactively within the limit,so that the actor can be exempted Criminal punishment or immunity from criminal prosecution.The Fourth Chapter is the practical significance of the administrative department as the subject matter of the penalty relief to the administrative crime.The third chapter discusses the different legal effects of the administrative penalty relief and the administrative crime relief.It is clear that the administrative penalty relief as the subject matter of the penalty relief is only the penalty relief under the lack of criminal punishability,but does not affect the establishment of criminal illegality,and the administrative crime relief There are essential differences in the non establishment of criminal illegality.Therefore,the flow trend of penalty to administrative penalty in the double penalty flow mechanism is not a crime in essence,but a conditional exemption.In the process of administrative punishment as the cause of penalty relief,administrative punishment as a measure after the implementation of the act,which embodies the actor’s subjective willingness to remedy and objective effect of recovery,and bears the function of the cause of penalty relief.As a factor affecting the penalty,the behavior after the actor shows that the actor has a higher degree of participation,which can encourage the actor to perform the administrative penalty more actively,so as to obtain the opportunity to terminate the penalty.Therefore,from the economic point of view,the process of administrative punishment as the cause of punishment relief well reflects the purposive value and special prevention function of punishment,while it does not damage the principle of criminalresponsibility for the evaluation of the implementation behavior,has a high judicial economy,and can be correspondingly expanded in the legislative application of administrative crime.Although the current expanding trend of criminal circle reflects the legislator’s legislative thought of "strict but not cruel",the impetuous mood of criminal legislation can not really solve the social problems brought about by the rapid transformation of society.The expansion of criminal circle,especially the increasing number of administrative crimes,does not significantly increase the public’s trust and satisfaction of the legal order,ease the deep social contradictions,on the contrary,excessive penalty The negative effect of transformation is being magnified.At present,the expansion of administrative crime circle is mainly manifested in the abuse of preventive criminal law and the advance of penalty application,which are undoubtedly contrary to the modesty of criminal law and should be amended within a certain range.However,as a legislative mode of lifting penalty,administrative penalty can relieve the pressure and negative influence of administrative crime expansion to a certain extent.However,administrative punishment can be applied flexibly as a matter of lifting penalty,which should be the right way to deal with the trend of expanding crime circle.Professor Rochin once proposed whether "compensation" can be considered as a new form of punishment and "the third way of criminal law" in addition to penalty and security punishment.The flow mechanism of double punishment designed in this paper is just the embodiment of the above thought.Taking administrative punishment as the cause of lifting punishment,it realizes the purpose of punishment in essence,has the function of re socialization,and can avoid or reduce the negative effect of punishment.For the criminal whose subjective malice and criminal circumstances are not very serious,the administrative penalty provides the opportunity of re socialization,at the same time,it can cherish the opportunity of exemption from penalty because of active administrative penalty,and avoid numbness to the deterrenteffect of penalty.At the same time,the auxiliary principle of criminal law provides a reasonable basis for the legal policy.Because of the principle of criminal responsibility,when the administrative penalty is taken as the "third way" to reduce or replace the penalty,compared with the unreduced penalty,the administrative penalty can make the purpose of the penalty and the needs of the victim get the same or better realization and satisfaction.The Fifth Chapter is The content and mechanism of the two-way flow system of administrative penalty and penalty,which is also the core of this paper.Through the discussion of the first four chapters,the rationality and limitation of the process of administrative punishment → penalty process and penalty →administrative punishment process are proved.The theoretical premise of the flow mechanism of double punishment lies in the ambiguity and instability of the boundary between administrative and criminal lawlessness.That is to say,the criminal lawlessness of administrative crime comes from administrative lawlessness.At the same time,there is a need to transform criminal lawlessness into administrative lawlessness according to the changes of legislative policies and social values.Administrative punishment and penalty,as the punishment methods of administrative and criminal illegal,have the premise and theoretical basis of mutual transformation.It should be noted that the scope of the construction of the flow mechanism should be limited to the administrative crime of low related legal interests.At the same time,in the process of double punishment,we should strictly follow the principle of legality,the principle of responsibility and the principle of balance between crime and punishment.In the flow mechanism of double punishment,compared with punishment,administrative punishment takes the initiative position in the flow trend of punishment.As a positive factor to promote the flow process of punishment,it directly affects the establishment and removal of punishment for administrative crimes.Penalty is in a passive position in the flow mechanism of double penalty,because of the inevitabilityof penalty,the passivity of penalty content and the limit rule of penalty.It is precisely because of the active position of administrative punishment in the flow mechanism of double punishment that the limit of the active role of administrative punishment is regarded as the "singularity" of the flow of punishment,that is to say,in the "singularity" position,the flow trend of punishment has a turning or progressive change,which is manifested in the transformation from administrative punishment to applicable punishment,or from punishment to applicable administrative punishment.The limit of the active role of administrative penalty lies in that it can only remove the criminal punishability within the limit of proportion,and cannot go beyond the scope of illegal content that it can regulate.At the same time,as the operation mechanism,the double punishment flow mechanism should maintain the balance and openness of its system,to a certain extent,expand the scope of application of administrative punishment as the subject of lifting punishment,and gradually expand the scope of application of the mechanism with the expansion of the name of administrative crime.The Sixth Chapter is The function and value of the double punishment flow mechanism,whichmainly discusses the value and significance of constructing the system of administrative punishment and penalty flow.From the perspective of legal basis,the system of double punishment flow is the application of the general provisions of Article 37 of the criminal law in some administrative crimes.However,compared with the original provisions,the system does not exceed or violate the scope of the provisions,on the contrary,it can fully consider the impact of subjective and objective factors in the application of penalty,to a certain extent,make up for the original provisions on the scope of application only limited to the objective conditions of criminal acts,but ignore the impact of the subjective conditions of the perpetrator in the application of penalty Defects.The double punishment flow system takes the intervention of administrative punishment as the basis of investigating the subjective attitude of the actor,which makes the matter that the judge decides whether "nopenalty is required" have clear objective standards,and ensures that the discretion of the judge can be effectively supervised and not be arbitrarily abused.In essence,the system of double punishment flow belongs to the system of penalty application,which aims to explore the treatment measures and legal effects of administrative crimes under different conditions,and fully consider the objective conditions of the crime circumstances and the subjective conditions of confession and repentance in the selection of treatment measures for the criminals.For administrative criminals,compared with criminal responsibility,administrative responsibility is easier to achieve the goal of crime prevention,and at the same time,it can avoid the adverse effect of imprisonment on the administrative criminals who are the first offenders.The existing administrative crime treatment measures have a single type,and there is no legal effect corresponding to its criminal characteristics to choose,which is not conducive to the realization of the purpose of education and crime prevention.The dual penalty system advocated in this paper is the guidance of penalty application for administrative crimes with low related legal interests.It is suggested that the way of administrative penalty as the cause of penalty relief can appropriately expand the non penalty treatment way of administrative crimes,which is not only conducive to the realization of the function of penalty prevention and education,but also in line with the current trend of penalty reform with penalty alternative measures and fine penalty as the main penalty.At the same time,the introduction of the system of double punishment flow conforms to the principle of modesty of criminal law,and it can also avoid judicial arbitrary judgment to a certain extent.On the one hand,the application of the mobile mechanism of double punishment can further expand the application of legislation,and on the other hand,it can evaluate and amend the existing legislative cases to promote the reasonable development of the theory of punishment.The Seventh Chapter is the Unfinished Comments,which concludes the merits and demerits of the flow mechanism of administrative punishment and penalty advocated in this paper.The flow mechanism of double penalty is only an ideal model.The purpose is to achieve the balance between the amount of administrative crime and the amount of administrative crime by taking administrative punishment as the influencing factor of administrative crime’s admission and exemption,and to provide a feasible plan for the legislation to alleviate the justice crisis of criminal law caused by the increase of administrative crime’s accusations and the decrease of entry threshold To regulate the application mechanism of criminal law and to promote the value of criminal prevention and the realization of the basic purpose of criminal law to defend society.However,from the existing legislative cases,the number of charges of administrative penalty as the elements of administrative crime and the causes of penalty relief is far from the balance of the amount,and the number of legislation of administrative penalty as the causes of penalty relief of administrative crime with low related legal interests is extremely limited,which is currently limited to the "first offence exemption" clause of tax evasion.This is a serious departure from the general anxiety caused by the trend of penalty advance and legal interest abstraction in China’s criminal law with the social transformation.Therefore,it is necessary to continue to expand the scope of application of the flow mechanism of double punishment under the guidance of the principle of legality of crime and punishment,and to clarify the justification of administrative penalty under the control of the principle of responsibility and the principle of balance of crime and punishment.For the unworthy criminal punishment The perpetrator of a crime shall take administrative punishment as an alternative measure to ensure the proportionality of the crime and punishment of the punished perpetrator. |
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