Research On The Application Of Criminal Law In Administrative Affirmation

In the process of criminal identification,how to deal with administrative identification is of great significance in practice.Sadly to the administration decided that understand and apply the current judicial practice in certain deviation,on the constitutive requirements of conformity judgment,many rely too much on administration decided that the contents of the judiciary,and even directly equating administration decided to criminal,administrative content that be the deciding factor on a crime and is not a crime,the case the referee disguised by administrative subject.The wrong use of administrative cognizance not only damages the legitimate rights and interests of the parties,but also damages the authority of law.Therefore,it is necessary to discuss how to apply administrative cognizance correctly in criminal justice.In addition to the introduction,the text is divided into four parts,a total of about50,000 words.The first part introduces the current situation of the application of criminal law.Firstly,based on the definition of administrative cognizance in the field of administrative law,this paper defines the concept of administrative cognizance in criminal justice,and holds that the administrative cognizance in criminal justice is the cognizance made by the administrative subject on the facts of the case and whether there is administrative lawlessness.Secondly,it discusses the scope of application of administrative identification in current criminal justice.Based on the close relationship between criminal law and administrative law provisions,it holds that "precondition of violation of law" and "other elements of constitutive elements" are two major scope of application of administrative identification.Thirdly,the content of administrative cognizance in current criminal justice is briefly introduced,and it is considered that administrative cognizance includes objective content and subjective content,factual cognizance and normative evaluation.Finally,the status and role of administrative identification in the current criminal justice are summarized.The second part discusses the current administrative cognizance of the plight of the application of criminal law.Firstly,the dilemma of the form and substance of the application of administrative cognizance;In form,whether the administrative confirmation has the evidence qualification is disputed.In essence,there is doubt on why the judicial organ can directly apply the standard evaluation content made by the administrative subject to the judgment of the constitutive elements of the crime.Secondly,there are disputes about whetherthe application of administrative identification is necessary or not.On the one hand,the provisions of many criminal law provisions are difficult to achieve self-sufficiency,the application of administrative identification for the identification of specific crimes to provide help,criminal justice shows the necessity of application of administrative identification.On the other hand,due to the difference between the value of criminal law and administrative law,there may be differences between the content identified by the administrative subject and the content identified by the judicial organ.The application of administrative identification may cause errors in the application of criminal law.Criminal justice shows that the application of administrative identification is not necessary.Finally,there is a dilemma in the review of administrative identification;In terms of formal examination,the difficulty of evidence positioning makes it impossible for the prosecution and the defense to conduct effective prosecution and defense against the evidence qualification of administrative identification,and the judicial organ is also difficult to conduct examination on the evidence qualification of administrative identification.In essence,the review of administrative identification has some difficulties,such as the content,direction and treatment after the review.The third part discusses the causes of the dilemma of the application of administrative identification.The reasons for the dilemma can be divided into the following three aspects:first,at the legislative and institutional levels,that is,part of the criminal law provisions are dependent on the administrative law provisions,and it is difficult to determine the crime only by the criminal law itself,which requires the introduction of administrative laws and regulations.At the same time,under the dual sanction system,the administrative subject,as the law of administrative execution,has the right to determine administrative malfeasance.Therefore,the administrative determination has become the right to determine.Second,the theoretical reasons,namely the difference between administrative lawlessness and criminal lawlessness and the dispute between the relative yuan and the monism of judgment violation;In affirming that administrative identification belongs to the illegal identification made by the subject with power,the problem lies in whether the choice between criminal law or administrative law will make a difference in the evaluation of administrative lawlessness,which involves the choice of illegality judgment.Third,the causes of judicial practice itself,that is,the wrong understanding and application of judicial practice to administrative cognizance;In the criminal justice,the judicial organ has the deviation to the administrative cognizance,the behavior which the administrative subject makes has the administrative illegalcognizance is not necessarily legal.In the specific application,the judicial organs did not distinguish the application of administrative identification in accordance with the differences between criminal law and administrative law.The fourth part discusses the practical way out of administrative cognizance in criminal justice.Firstly,it is reasonable to moderate the illegality monism in judging illegality.Under this theory,criminal law includes general illegality and punishable illegality,and administrative identification is usually the solution to general illegality in criminal law.Secondly,it emphasizes the application of administrative identification.There is a natural overlap between the pattern of "administrative illegal + aggravating elements" and "general illegality + punishable illegality".Therefore,when the administrative determination is applicable to the preconditions,it can be directly used to explain the adequacy of the preconditions.When the administrative identification is applicable to other elements of the constituent elements,as other elements of the constituent elements may contain the requirement of punishable illegality,therefore,in principle,the administrative identification cannot be directly used to explain the element of the constituent elements.Finally,the construction of the review mode of administrative identification;Clarify the nature and consequences of the review,the construction of the form and substance of the review model.Formal review focuses on the fact level,from the subject qualification,procedure,evidence and other aspects.Substantive review focuses on the standard review from the basis of norms and other aspects.