Research On The Division Of Criminal Punishment And Administrative Punishment On Government Subsidy Fraud

Government subsidy fraud happens frequently in social life,which violates administrative regulations and constitutes a crime.However,when the relevant departments deal with the fraud,there are cases where the nature of criminal and administrative violations cannot be judged correctly,and the responsibilities are mixed up,which leads to the inconsistency between punishment and act.For example,as for the subsidy fraud committed by the He,there is a major dispute on the nature of the fraud,the core of which is related to the division between criminal punishment and administrative punishment.A view holds that it constitutes a crime of fraud while another view argues that it is merely an administrative offence.This thesis makes analysis from the theoretical and practical aspects so as to clarify the division between criminal punishment and administrative punishment on subsidy fraud and responsibilities therefor.From the theoretical level,it is required to define the standards of the division between criminal punishment and administrative punishment on subsidy fraud.There are three kinds of theories about the division between criminal punishment and administrative punishment: qualitative distinction,quantitative distinction as well as qualitative and qualitative distinction.The qualitative distinction is based on the essential difference of whether the act infringes legal interests and has strong reproducibility.The quantitative distinction holds that it only takes the social harmfulness of act as the quantitative distinction.The theory of qualitative and qualitative distinction advocates the combination of both.The author agrees with the qualitative distinction theory,that is,when considering the nature of criminal and administrative violations of a certain act,it should also make substantive judgment from the perspective of being punishable on the basis of considering the magnitude of social harm.Based on the legislative situation in China,the criteria of the division of criminal punishment and administrative punishment should be the difference of “quantity”,that is,according to the social harmfulness of the act.As for the specific criteria of the division between criminal punishment and administrative punishment,it should be differentiated from the perspective of “quantity”.This thesis mainly discusses the elements of the crime of fraud,such as subjective offence,mode of fraud,degree of fraud and consequences of fraud.From the perspective of “quality”,this thesis mainly makes a “quality” judgment on the punishable act under the illegal cognition error.Defining criteria in theory alone is not enough to solve the problem.The division between criminal punishment and administrative punishment on subsidy fraud is faced with practical difficulties such as case transfer.A large number of administrative cases of subsidy fraud are criminalized,criminal cases are administerized and administrative cases are not punishable.There are many reasons leading to the dilemma,such as the lack of clear provisions on division criteria,the case transfer procedure inconsistent with the superior law notwithstanding provisions,which may easily cause confusion of criminal punishment and administrative punishment.At the same time,there are other reasons such as the lack of connection between criminal law and administrative law and insufficient supervision.Based on the above theoretical analysis and practical investigation,in order to better solve the problem of the division between criminal punishment and administrative punishment,the system,the concept and the mechanism should be improved from the perspective of legislation,law enforcement and judicature,so as to more accurately define the fraud and better manage the phenomenon of government subsidy fraud.