The Integrated Construction Of Regulation:The Effective Connection Between Criminal Law And Administrative Law

The research on the connection between criminal law and administrative law is a subject of both theoretical significance and practical value.Of course,the first is the distinction between administrative violations and criminal offences,which is still a hot topic in academic circles and even in various countries.Although there are great differences among administrative law,criminal law in their respective institutional structure,evaluation criteria,means of sanctions and ways of relief,however,the functions of the two in the nature of public law,the principle of the rule of law,the consequences of sanctions and the maintenance of order are highly consistent with the goal of rights protection,which also lays a theoretical and practical foundation for the mutual docking,interweaving and integration of the two.Especially after the system of reeducation through labor in our country has been abolished,the original three-level sanction system of "penalty-reeducation through labor-public security punishment" has been transformed into a two-level sanction system,while the criminal threshold has declined and the criminal circle has shown a trend of expansion.The criminal law legislation has had the charge that the criminal law is more minor and the maximum penalty is only criminal detention,and some scholars advocate that the illegal act of public security should be included in the criminal circle,which makes the boundary between administrative violation and criminal offence more blurred.In this way,the criminalization of administrative wrongful acts,the increasing number of administrative crimes,the obvious expansion of criminal law legislation,and the intersection of criminal law and public security punishment law and other administrative regulations,including the diversification of new types and forms of crime,make the convergence of execution more difficult.In the face of a large number of complex situations such as subordination,intersection,docking and concurrence between criminal law and administrative law in our legislation,as well as the reflection on the sharp increase of personal freedom punishment in administrative punishment,they have become urgent problems to be solved in the current theoretical and practical departments how to solve the conflict of current legislation and the confusion in law enforcement and judicial practice,how to solve the problem of difficult connection between criminal law and administrative law,and how to solve the impact on the criminal sanctions system caused by the abolition of reeducation through labor,"Regulation criminal law" and "regulation integration" are new concepts of criminal law,which are based on the field of connection between criminal law and administrative law,and guide the effective connection between criminal law and administrative law under the systematic thinking.At the same time,they are not only an important premise and theoretical basis for the prevention and control of global crime,but also the actual need to be in line with international standards in the future.The concept of "regulating criminal law"not only solves the topic that the criminal law itself has debated for hundreds of years,but also spans a larger field of criminal law,administrative law,criminal policy and social law,because these areas also need "regulation" and even more need "integration".It can be said that this is a new criminal law which transcends the traditional concept of criminal law.The text has five parts:the first chapter combs the evolution of traditional criminal law theory and the perplexing old topic of "retribution","prevention" and "combination",and puts forward the new concept of "regulating criminal law".This part takes the thinking of the legitimacy of the penalty as the logical starting point,and proves the legitimacy and rationality of the crime by proving the legitimacy and rationality of the penalty.This paper probes into the whole process that the criminal law has evolved from punishment,retribution to prevention and defense for a long time,and even analyzes the defects and shortcomings of the doctrine of harmony,including the irreconcilability of the theory of purposeful punishment and the theory of retributive punishment itself,which cannot take into account the theoretical cycle and strange circle.In order to solve this perplexing century-old topic in the academic circle,this paper boldly puts forward a new concept of "regulating criminal law".This paper also interprets the function of criminal law from the dual perspective of individual and state,and holds that the function of criminal law is the function of criminal law,which is based on the unity of opposites of human rights protection and social(legal interest)protection.In a word,whether they attach importance to justice or order,they both need to be guided by "regulation criminal law",including legislative regulation and judicial regulation,and the ultimate pursuit is the value goal of both justice and order.The second chapter demonstrates the basic concept and principle of "regulating the integration of criminal law",and finally achieves the effective connection between penalty and administrative punishment and its value goal pursuit.First of all,by combing the theory of legal interests,in the theoretical summary of the traditional criminal law legal interests,to explore the theoretical reality and dilemma of legal interests in the development and evolution.In the face of the strong thinking and domination of the current risk regulation and the direction of the contemporary criminal policy,the state must adopt the corresponding penalty means to prevent and control it.The traditional legal interest theory no longer serves as the only benchmark to guide the criminal law norm.Now it is based on the criminal policy of the combination of danger prevention and normative regulation as the basis for expanding the power of punishment,and the super-personal legal interest has become a more empty conceptual description.Or legal interests do not seem to have a solid basis for legislative regulation in our country.Secondly,the modern criminal law should take behavior as the core basis to launch criminal sanctions,which takes behavior as the main focus to draw the boundary between penalty and administrative sanctions,and to implement the final stage of penalty.This paper holds that in the stage of criminal law regulation,crime actually destroys the criminal law norms that exist in society,puts the overall relationship of social norms in danger,and finally embodies the behavior of serious social harmfulness,which is embodied in the violation of legal norms and the infringement of interests protected by law,that is,the theory of dualistic behavior without value.This paper holds that the basic principle of the concept of "regulating the integration of criminal law" is "the unity of legal order",and the ultimate goal of the integrity and unity of legal order is to realize the "integration" of the concept of "regulating criminal law".And "regulating the integration of criminal law"embodies the orientation,purport and direction of the systematic thinking of criminal law and other departments of law,and systematic thinking can be said to be the primary value and characteristic of legal education.This paper holds that the difference between the ordinary criminal law and the administrative criminal law lies in the opposition between violating the basic life order(traditional social order)and violating the derived life order(modern social order),or the opposition between the social crime of traditional ethics and the social crime of modern order.Administrative crime focuses on infringing or threatening the super-personal legal order(legal order and legal interest are opposite concepts),and its illegality evaluation focuses on the worthlessness of the behavior.the object of the evaluation is the unity of subjective intention and behavior implementation."The unity of law and order" requires the relative independence of the judgment of illegality in criminal law.Finally,this paper reconstructs the traditional concept of crime,puts forward the concept of "dualistic" crime in the concept of crime and punishment in the connection between inside and outside the criminal law,and modifies the nature of the crime.The theory of dual nature of crime is established with "should be punished" as the core and unity of opposites with social danger.It is proposed that a large number of administrative illegal acts with serious social harmfulness that have not yet reached criminal punishment which can be treated as "micro-criminalization",or learn from Germany and Japan’s "turning punishment","security measures" and "other non-penalty penalties" to regulate.Of course,what is worth warning is that the crime in this concept is also based on the premise that the act has reached the punishable illegality or should be punished.This brings a large number of criminal penalties in administrative regulations into the regulation of criminal law,that is,the solution of the problem of judicialization,and lays the foundation for the legislation of subsidiary criminal law.Finally,the recognition of the crime of "dualization" also provides a theoretical premise for the path of "new three-yuan criminal sanction",including in solving the problem of the connection between criminal law and administrative law.Because administrative crimes do not reflect the instinct of revenge,let alone the application of the concept of "retribution" punishment.Through the carding and unification of"function" of criminal law,this paper holds that there is consistency between the function of criminal law and the purpose and task of criminal law,which belongs to the concept of the same level.It provides a theoretical premise and basis for the concept of "regulating criminal law".Of course,the concept of "regulating the integration of criminal law" requires that criminal law should more strictly follow the principles of limitation,moderation and proportionality in the criminalization of administrative crimes,so as to avoid excessive criminalization and incrimination.The third chapter is mainly about methodology.With the concept of "regulating criminal law" and "regulating the integration of criminal law",we have sought a feasible way to realize the integration of criminal law and administrative law or the concept of "unity of law and order".It also opens up a feasible way to solve the connection between administrative law enforcement and criminal justice.It includes the qualitative problems of administrative criminal law and administrative crime,which neither belongs to criminal law nor administrative law,which needs the method of "grey theory" as the theoretical support.and the method of "grey theory" is used to solve the long-term confusion of criminal docking and its edge fuzziness.From the legislative point of view,our country does not have a unified administrative criminal code,and the provisions on administrative crimes are distributed in criminal law,separate criminal law and relevant norms of administrative law,this legislative phenomenon coupled with a large number of complex administrative norms,including administrative norms will also change at any time with the development of the times and changes in national policies;if,as some scholars advocate,the "legalization" of some administrative penalties,it has seriously affected the stability of the criminal law,resulting in the accumulation of "blank criminal law" in the criminal code,and even it is difficult to specify the constitution of the crime.As in the past,it is often quantified by factors such as serious circumstances and amount,and the standard of constituting a crime is bound to be further blurred.From the judicial level,the content of administrative regulations is numerous and complicated,especially after the abolition of reeducation through labor,in judicial practice,when a large number of the same behavior violates criminal law and administrative law,it is more difficult for judicial personnel to coordinate these two responsibilities in the process of judicial application.On the other hand,our country is a typical legislative mode of separating violation of law from crime because of "crime quantity factor".In another chapter,this paper will make a typed analysis of "crime quantity factor" in administrative crime.and think that the multiple administrative illegal acts convicted should be evaluated as a whole,which is the comprehensive evaluation of subjectivism and objectivism,which is also one of the specific embodiment of the concept of "regulating the integration of criminal law" in methodology.While carrying on the systematic thinking of regulatory integration,we should correctly deal with the conflict of interest between the protection of human rights and social order,the conceptual confrontation between worthless result and worthless behavior.While proposing to use grey theory to solve the inherent vagueness of the "double illegality" characteristics of "administrative criminal illegal acts",this paper reflects on the legislative mode of criminal law,and puts forward subsidiary criminal law legislation to amend the existing legislative mode of criminal law.It should be said that the"subsidiary criminal law" is the top priority or core of the "grey theory" method.The content of the fourth chapter is the examination and objective evaluation of the legislative convergence in the construction of "regulating the integration of criminal law",that is,the "integration" of the content of "regulating criminal law" and the "effective connection between criminal law and administrative law" promoted by it.This paper comprehensively expounds some problems existing in the connection between criminal law and administrative law,as well as the negative effects of these problems in different fields.It reveals the feasibility and concrete application of "regulating criminal law" and"regulating the integration of criminal law" in the effective connection between administrative law and criminal law.At present,the level of effectiveness of the relevant laws and regulations to solve the convergence of criminal law and administrative law in our country is relatively low and the provisions are relatively scattered,the contents of the existing laws and regulations are not coordinated,and there are often conflicts or contradictions,which lead to the dilemma of law application in practice.In particular,it introduces the relevant legislation in Chinese Taiwan,under the inspiration of the convergence of the "two laws" from a comparative perspective,to grasp the theory of regulation integration as a whole,which is expected to improve the existing legislation.The content of the fifth chapter is the future approach of "regulating the integration of criminal law".Macroscopically,from the micro-crime regulation in the sense of crime stratification,to the specific construction of security measures connected with the penalty,turning punishment measures to form a path of regulation integration to form a multipronged,multi-faceted,multi-angle comprehensive and unified new criminal sanctions system.In a word,the ultimate purpose of the theoretical research on "regulating criminal law"and "regulating the integration of criminal law" is not only to solve the debate on the function of criminal law and its value goal,which has been puzzled for a century from the basic theory of criminal law,but also to put forward a theoretical system and a perfect plan for the legislation of administrative crime,especially the effective connection between criminal law and administrative law in the connection between criminal law and administrative law.The biggest innovation of the article is that the author does not just focus on the surface of the convergence of criminal law,but puts forward the concept of"regulating criminal law" and the basic principle of "regulating the integration of criminal law".And it is configured in the "grey theory" method to solve the problem of "convergence of execution".It not only fundamentally combs,modifies,updates,reforms and perfects the purpose,value and function of China’s criminal law legislation,but also solves the problem of effective connection between criminal law and administrative law with a more expanded or practical way of thinking.Under the construction of the social system under the framework of "regulation criminal law" in the new era,the concept of "regulation criminal law" and its "integration" is the premise and theoretical basis for the prevention and control of criminal globalization.The future trend of criminal law should be to gradually reduce the extension of crime,while the corresponding extension of administrative violations should be gradually expanded,and the diversion of minor criminal acts should be classified into different punishment measures.In fact,the process of the rule of law is the coordinated operation of legislation,administration and judicature.The integrity of the legal order should be considered in the "convergence of criminal law",which should not only be satisfied with the self-complement of the norms of legal crimes within the criminal law.but the connection and coordination between each other can achieve unity and truly realize the fairness and justice of the rule of law.