The Thinking About The Legislation Of The Administrative Crime

The concept of administrative crime was not appeared until 20th century when the countries turned to welfare states, which was mainly realized by means of administrative policies. Most scholars think that the origin of the concept of administrative crime was in Germany. Goldschmidt, a German scholar, put forward the theory of administrative crime and administrative criminal law in his book in 1902. Since that, the theory has been debated for over a hundred years. The research about the administrative crimes carried forward very well in Germany. And there are a few main points as follows: the point of the administrative criminal law, the point of the different legal benefits that are infringed, the point of the different infringed ways on the law benefits, the point of the differentiation between cultural norms and law norms etc. At Japan, the research about the administrative crime and the administrative criminal law is further. There are many books and theses on this have been published. And a main point has been agreed by the most Japanese scholars. The main point is that the administrative criminal law has two meanings: one is broad, the other is narrow. The administrative criminal law of so-called broad meaning is the general name of laws about criminal punishment that was made in the administrative laws. Generally speaking, the administrative criminal law means the narrow one, and it is often subsidiary articles made in administrative laws.In our country, because there are many debates on the concept, meaning, nature of the crime, the legislature will expand the scope of criminal punishment indiscreetly. In other words, acts that should be punished in accordance with administrative laws are convicted and punished by the criminal law. That can easily expand the subsidiary criminal law, result in conflicts of the prescribed punishment and criminal charges between the criminal law and the subsidiary criminal law, and do harm to the legal order. Therefore, it has important realistic meaning for the perfect legislation of the administrative crime to distinguish correctly the concept, nature between general administrative offense and administrative crime.Though the scholars' definition of concept and nature of the administrative crime doesn't unify in our country, it can be basically induce to two kinds of points. One point is that the administrative crime is a kind of act that is convicted in accordance with the criminal law, the other point thinks that it is only a general administrative illegal act for which is not seriously enough to be punished in accordance with the criminal law. Comparing the researches, the writer thinks that the administrative crime shall be convicted by the criminal law and it is only a kind of crime. So it can not be a concept juxtaposed with the concept of crime. With the development of the social economy and technology, the administrative crime appears inevitably as various new crimes when the government charges the society. The object that the administrative crime infringes is mainly the national management order, such as financial order, judicial order, economic order etc.On the basis of the explicit point of the nature and characteristics of the administrative crime, the thesis put forward suggestions about the perfect legislation of it, at an angle of the connection between the administrative punishment and the criminal punishment. Firstly, after criticizing the point of our scholars who insist on setting up an administrative punishment system, the writer think the structure of the criminal law system is reasonable and it can also adapt to the development of the social economy, politics and technology. Therefore, it is not necessary to make the administrative criminal law and to set up a system of administrative criminal punishment.Secondly, the writer thinks that in our country we shall first settle the problem of the connection between the general legislation and the criminal legislation in reality and theory. Because of the limited space, the writer discusses the connection between the administrative punishment and the criminal punishment from two sides: the kinds of punishment and the responsibility of different degrees, such as the connection between the property punishment fine and confiscation of property, the connection between the ability punishment and qualification punishment, the connection between the custody and the fixed term imprisonment. The writer mainly discussed the perfect legislation of the rehabilitation-through-labor. And the writer thinks that we can make an independent law of the rehabilitation-through-labor. It is not only beneficial to the uniform of our legal system and to the support of the law's seriousness.