A Study On The Joint Illegal Act In Administrative Punishment

In the Mainland China, the power to carry out administrative penalty plays an indispensable part in the system of administrative branch. However, there is a lack of a concerning system of administrative penalty towards the jointly illegal conducts, which makes the practice departments confused, who do not really know how it is stipulated in the substantive laws, how can they deal with it in the practice how can they manage to make legal writings. The phenomenon indicates that there is a great need of system of administrative penalty towards the jointly illegal conduct. But, the academic community of administrative law does not pay enough attention to that issue.It is a specific pattern that jointly illegal conducts violate administrative legal norms. Thus, actus reus of the illegal conducts which violate administrative legal norms can be all capable applied to it because the two kinds of conducts are all of illegality and social harmfulness and due to be punished. Actus reus of the illegal conducts which violate administrative legal norms is attribute to the meaning contact. That is those who perform that kind of illegal conducts should be out of joint attempt to violate administrative law, which is similar to the very joint crime in Criminal Law and joint infringement of right in Civil Law.Law of the PRC on Administrative Penalty and Law of the PRC on Penalties for Administration of Public Security and other acts for their very public administration constitute the system of administrative penalty, among which there is no the institution for actus reus of the illegal conducts. And it is due to problems: firstly, Law of the PRC on Administrative Penalty is an fundamental law but it fails to stipulate expressly how to do with the institution for actus reus of the illegal conducts; secondly, standard of classification is contradictory itself. Under such circumstances, the administrative organs will face the awkward of no rule to abide by in the law enforcement. Besides, the administrative organs should not apply the general rules of criminal law to make up the gap..The institution of system of administrative penalty is very developed in Civil Law System, such as Austria Germany Japan and Taiwan. Austria is the first one to make Law on Administrative Penalty, which embraces the pattern of uniforn crime, with solicitation behavior and helping behavior to be punished separately. Germany employs the pattern similar to the doctrine of partial co-crime, which emphasizes the co-intention of behavior but not of responsibility. In Taiwan, the way to cope with actus reus of the illegal conducts in administrative law is stipulated expressly both in Social Order Maintenance Act and Law on Administrative Penalty——the former introduces the pattern of collusive coprincipals, with solicitation behavior and helping behavior to be punished separately; the latter one, which is a fundamental law in the field of administrative penalty, adopts the doctrine similar to theory of criminal commonness, with perpetration behavior, solicitation behavior and helping behavior to be punished jointly, and highlights the difference between administrative penalty and criminal punishment and get rid of terminology of criminal law. Administrative organs in Japan are entitled limited power to carry out penalty and most of the power is distributed to the judicial system, which is similar to Common Law System. Therefore, Japan, together with the Common Law System. countries, is far behind in the research of actus reus of the illegal conducts when compared the Civil Law System.There are many troubles in practice. Through the study of comparative law and the specific circumstances in Mainland China, we can define actus reus of the administratively illegal conducts:(A) Actus reus of the administratively illegal conducts are the ones which are performed by more than two people due to co-intention and violate administrative law;(B) the violation of administrative law due to joint negligence should not be deemed as actus reus of the illegal conducts;(C) solicitation behavior and helping behavior to be punished separately. Substantive stipulation should comply with the definition firmly; the case settled separately and the issue of hearing should be paid enough attention; official writings should be made uniformly but not separately, which helps to promote the efficiency and makes it easier for the administrative counterpart to supervise the administrative organs.