On The Comparison And Concurrence Of The Administrative Penalty And Criminal Penalty

Administrative Penalty Law has been in effect for more than ten years since its promulgation. It's performing in a legal way, but there is still somewhat unsatisfactory,"the substitution of administrative penalty for criminal penalty"being one case in actual life. The reason for it is that the applicability and the convergence process of administrative penalty and criminal penalty is vague and blurred. This thesis aims at carving out their respective sphere of application by comparing the two and analyzing the situation of their concurrence so as to connect the procedure of administrative penalty with that of criminal penalty clearly and smoothly.This paper is divided into three parts. The first part introduces briefly the administrative penalty system in America, Japan, Austria and Taiwan, China and clarifies administrative penalty and its related definitions, thus laying the foundation for the cohesive and clear narration afterwards.The first part presents as well the several definitions for the concepts of administrative penalty currently popular in the administrative law field and analyzes the characteristics of administrative penalty. It points out that in certain cases, the crime should also receive administrative penalty, thus the"Does not constitute a crime"being not a component factor for administrative penalty. The author also elaborates on the classification method commonly employed in administrative penalty, namely, the classification into freedom penalty, property penalty, conduct penalty and administrative criticism based on the nature of administrative penalty and sums up the modes and regulations of various kinds of administrative penalty. The second part firstly presents the definition and features of criminal penalty. Criminal penalty refers to the mandatory sanctions imposed by judicial organ in one country on the criminals to limit or deny certain of their rights under the criminal law. In our criminal law, criminal penalty is divided particularly into 9 kinds, e.g. Surveillance, Criminal Detention, Limited Imprisonment, Life Imprisonment, Death Penalty, Forfeit, Deprivation of Political Rights, Confiscation of Property and Deportation applicable to the foreign criminals. It discusses the similarity between the administrative penalty and criminal penalty with respects to principles of application, subject, application premises and methods as well as the differences of the two in sphere of application, legal basis, subject of the legal liability, modes, criminal's subjective state's influence and effect on legal liability and liability relief channels. It points out that criminal penalty is a much more severe sanction measure than administrative penalty, because it involves some basic rights of the convicted such as the right of life, of freedom, etc. As a result, it deserves a much more complex and fair procedure than administrative penalty. Therefore, targeted at the continuous expansion and abuse of the punishing power by administrative organs, the key to solute this problem is to delimit clearly the respective spheres of application of the two and deal properly with the relationship of them when concurring.The third part is divided into 6 sections dealing with series of problems resulting from the concurrence of administrative penalty and criminal penalty separately.Firstly, it states clearly the principle of application of the administrative penalty and criminal penalty when they concur. At present, three proposals are quite popular, including Alternative usage, Conditional Mergering usage and Mergering usage. By comparison, the third proposal is more suitable for the legal system in china. Meanwhile, it stresses that the Mergering is only applicable when the concurrence of the two happens, but not to any circumstance, so one should cope with specific case specially.Secondly, it classifies the concurrence between administrative penalty and criminal penalty. It states that under the circumstance of"administrative penalty coming after criminal penalty", the content of administrative penalty should comply with the following criteria: (a) not applicable to penalty of similar nature; (b) repeated penalty is allowed with different kind; (c) administrative penalty again after exemption from criminal penalty. Under the circumstance of"administrative penalty coming before criminal penalty", the courts should act by the following standards; (a) repeated usage of the penalty of similar nature, but the offsetting of the administrative penalties should be granted; (b) separate usage of penalty of different nature.Thirdly, it delimits the spheres of application of administrative penalty and criminal penalty. There are mainly three differentiating theories between administrative illegal acts and criminal illegal act: the first is the different quantity theory; the second is different qualitative theory; the third is the theory of different quality and quantity. By comparison, it concludes that under the current legal system in china, it should be that the second oen for the differentiation of the traditional crime and the administrative illegal acts; the first for that of the administrative crime and administrative illegal act. Fourthly, it is about the perfection of the convergence of administrative penalty and criminal penalty in legal system. The legal system in china now is dependent Scattered legislation, but only the independently scattered legislation can join the two in a smooth way.Fifthly, it tells the content of the legislative convergence between the administrative penalty and criminal penalty, including that of fine and forfeit, of personal freedom penalty and fixed- term of imprisonment and analyzes the security measures'nature of reeducation through labor for the perspective of its subjects, time, tasks and punishment addition, etc.Sixthly, it narrates the convergence of the procedures of the administrative penalty and criminal lawsuit during the concurrence of administrative penalty and criminal penalty. It firstly states clearly that the principle of application is that"criminal code comes first". Then it expounds in great detail the reason for this preference and its usage in china. It introduces as well the specific procedure for the case- transferring from the administrative organs to the judicial department. At the last part of the thesis, the author makes some suggestion on the perfection of the specific procedures for the convergence of administrative penalty and criminal penalty.