Research On The Defective Administrative License

Administrative license,as the cause of crime,is widely used in crimes with " without permission" and " without approval" as the conditions for the establishment of a crime.However,there is a dispute in the theoretical circle as to whether flawed administrative license,such as the administrative license obtained by the actor through illegal means such as deception,coercion and bribery,still has the function of crime.Whether the defective administrative license has the function of incriminating cannot be generalized.Based on administrative law,this paper tries to sum up a judgment method on whether the defective administrative license has the function of incriminating on the basis of the fault of the actor and the classification of the defective administrative license,and in combination with the nature of the crime.This paper is divided into four parts:The first part is an overview of the defective administrative license,which takes the defective administrative act as its logical origin,and clarifies the concept,nature,scope,effectiveness,characteristics and types of the defective administrative license in combination with German and Japanese theories and the Administrative License Law of the People's Republic of China(hereinafter referred to as the " Administrative License Law").The second part takes Zhang Junli's case of illegal medical practice as an example,which leads to the problems existing in the criminal law regulation of defective administrative license in our country.As the legislators in our country are not firm on the relationship between administrative illegality and criminal illegality,the criminal law of the people's Republic of China(hereinafter referred to as the " criminal law")does not have a unified standard for administrative illegality.As China mostly adopts the legislative mode of blank indictment against administrative offenders,which leads to the uncertainty of the basis for the criminal law to incriminate administrative illegal acts,these problems have increased the difficulty of the criminal law regulation of defective administrative license.The third part is the judgment method of the flaw administrative permission affecting the crime of discrepancy.First of all,the effectiveness and illegality evaluation of defective administrative license in administrative law is the premise of our evaluation of defective administrative license in criminal law.Based on the principle of unity of legal order,effective and illegal defective administrative license may have an impact on the conviction of criminal law.Secondly,based on the protection of citizens' trust interests,the defective administrative license caused by administrative organs still has the function of deterring crimes.For the defective administrative license caused by the fault of the actor,specific judgment should be made according to its type.Special license has the function of incriminating,and controlling license needs to enter the third step of judgment.Finally,it is the essence of the crime that is the fundamental basis for the admission of defective administrative license.The fourth part is the suggestion to perfect the criminal regulation of defective administrative license.First of all,from the legislative level,we should clarify the connotation of " unauthorized" and " state regulations" and define the forms of crimes.Secondly,from the perspective of interpretation,we should recognize the reference meaning of administrative interpretation and limit judicial interpretation to a certain extent.