Research On Criminal Offense And Administrative Offense

The difference between criminal offense and administrative offense can be returned to the pair of concepts of natural crime and statutory crime ,as mala inse and mala prohibita in Roman law . However it was not until in the 20th century that the study on administrative offense spread out completely. Many cimininal scholars and administrative scholars provised different kinds of conceptions and differentiation theories and doctrines at past,and more sdudies are made on the issue in Germany and Japan.At the same time,many countries made legislations,so it developmented well all in theories and legislations on the issue.But, there's yet been no final conclusion as to the concept and nature of administrative offense. The dissertation consists of four parts. Starting from reviewing the concept of criminal offense and administrative offense, and makes comments on differentiation theories and some States' legislative practice, Then further comparative studies are made on different views about the difference between criminal offense and administrative offense. In the end,the dissertation provise suggestions of perfecting legislations on administrative offense.Part I of the dissertation introduces the issues of concept of criminal offense and administrative offense.Since the issue is a loanword,neither should we completedly disregard valuable foreign doctrines for reference,nor should we entirely neglect the reality of legislation and theories in our country.Therefore,first of all the dissertation evaluates the doctrines of concept of criminal offense and administrative offense in Germany,Japan and China. German scholars generally regard administrative offense as act of disobey of order that only has illegality of administration and only order punishment should be inflicted on offenders. That is,they take the narrow meaning of the concept of administrative offense. Japanese scholars in the field of administrative law,with a view to broad sense of administrative punishment (including order punishment and administrative criminal law),set administrative offense in a broad sense against criminal offense,while Japanese criminal lawyers,with an eye to narrow meaning of administrative punishment(only containing administrative criminal law),set administrative offense in a narrow sense against criminal offense. Scholars in Taiwan of People's Republic of China have different doctrines on the meaning of administrative offense,namely,doctrine of both broad and narrow sense ,doctrine of broad sense and doctrine of narrow sense. The majority of scholars in the Mainland of China adopt the doctrine of administrative offense with narrow meaning of punishment inflicted,and define administrative offense in the light of general definition of crimes in our country. On this basis,we advocate adopting the doctrines of both German and Japanese narrow meaning of punishment inflicted.Part II of the dissertation introduces the issues of the theories difference between criminal offense and administrative offense. More studies are made on the issue in Germany and Japan.In Germany,there are Quality Differentiation Theory,Quantity Differentiation Theory and Quality and Quantity Differentiation Theory.Because of different standpoint of each theory therein,each theory poses different doctrines.The theories of nature of administrative offense in Japan has succeeded and developed from relevant theories in Germany,and can be generally divided into three categories:Differentiation Affirmation doctrine,Differentiation Negation doctrine and Differentiation Inanition doctrine.Due to different points of view,there are differentopinions under each doctrine.Chinese scholars are also inclined to four typical doctrines in China of Quality Differentiation, Quantity Differentiation, Quality and Quantity Differentiation and' Dualism,of which each has its own emphasis.With comments on the doctrines above,the dissertation pointout that criminal offense is substantively different in the core area from administrative offense,with difference of quantity in peripheral area,which is relatively appropriate in methodology.and further advocate that ,defining the nature of administrative offense should be made on the act of the disobey of order,and adopting Quality and Quantity Differentiation Theory.Part III of the dissertation introduces the issues of legislations to crimininal offense and administrative offense,and review the models of legal systems in world and China. German legislation and jurisprudence ever distinguished substantial illegitimacy of both administrative offense and criminal offense. However, due to emergence of intermediate types of crimes, it changes to regard degree of hazard of act as punitive criteria, and divides administrative offense into acts of order offense and criminal offense according to severity of circumstances with fine or penalty inflicted respectively, and double punishment and presumed liability are applied to administrative offense. The administrative criminal law of Japan covers a wide range, and strict pecuniary fine or punishment against freedom is mostly inflicted on administrative offenses.Although the China's legislation on administrative offense began relatively late, it has spread all over branches of social society,but there is much short in the models of legal systems,subject,range and liability about administrative offense.Part IV of the dissertation put forward theory suggestions of perfecting legislation on administrative offense.About the legislation criteria,should contain four ,they are quality,quantity,administrative management and criminal policy.As for the establishment of crime and punishment on administrative offense,it is advisable to take the pattern of separate legislation;About the liability,should reflect the thinking of light punishment;About subject,should adopt double punishment,but there's exceptions;About the legislation range should be restricted in some degree,and further making decriminalization and depenalization.