A Study On The Relative Independence Of Criminal Illegality Judgment In The Intersection Of Administrative Law And Criminal Law

The intersection of administrative law and criminal law has always been a hot issue in the field of criminal law.Although it has been discussed in theory,it has not established a unified criminal illegality judgment system in the intersection of administrative law and criminal law in judicial practice yet.Does the establishment of criminal illegality need to be based on the existence of administrative illegality? Does criminal illegality judgment need to have a certain degree of independence? Does the understanding of the connotations of the constitutive elements of the criminal law provisions must be consistent with the relevant provisions of the Administrative Law?These problems have become inevitable problems that need to be explored in the case of determination of criminal illegality in the intersection of administrative law and criminal law.Clarifying the judgment relationship between administrative illegality and criminal illegality,and applying the theory of attribute difference between the two in it,can make a new enlightenment for the construction of the criminal illegality judgment system.With the continuous deepening of the risk criminal law theory in the risk society,the intersection of administrative law and criminal law is increasingly generalized,and unifying the path of determination of criminal illegality in such situations,can provide guidance for judges in judicial judgment to achieve true judicial justice.The full text is divided into four parts.The first part of the article is to define the concepts concerned with the intersection of administrative law and criminal law,and to explore the main reasons for the increasing generalization of such situation.Basedon the concept of administrative illegality and criminal illegality,the intersection of administrative law and criminal law is defined as the interaction between administrative cases and criminal cases at the level of illegality judgment and the overlap relation between administrative legal relationship and criminal legal relationship at the level of actual violation due to the association of specific factual factors.The risk criminal law theory in the risk society is the root cause of the increasing generalization of the above-mentioned situation,and the continuous expansion of the scope of criminal law legislation exists as a direct cause.The second part of the article is to divide administrative illegality and criminal illegality according to the attribute difference and judgment relationship between both of the above.There exist qualitative and quantitative differences between administrative illegality and criminal illegality,that is,the qualitative differences between the two are mainly reflected in the legal interests which are protected in the core areas of criminal law and can only be protected by criminal law,including personal life,significant personal health and part of personal freedom.And the quantitative differences are generally reflected in the peripheral areas of criminal law,such as property legal interests and collective interests which involve the areas of economics,health and environmental protection.In addition,as for the judgment relationship between the two,based on the unity of the system and purpose pursued by the legal order system,the existence of the secondary illegal property of crime and the necessary proposal of “general illegality” and the double-judgment structure called “general illegality + punishable illegality”,the moderate illegal monism should be promoted.The moderate illegal monism advocates that the act which is evaluated as legal by the prepositive law must not have criminal illegality,and the act which is evaluated as illegal by the prepositive law must be independently interpreted by the criminal law to finally determine the establishment of criminal illegality.The third part of the article attempts to combine the above theories to construct a relatively independent criminal illegality judgment system in the intersection of administrative law and criminal law,and to clarify the specific manifestations of subordination and independence.The relatively independent criminal illegality judgment system takes the establishment of administrative illegality as the starting requirement,and make an independent judgment on the legal interests which protected by specific criminal law provisions,then compares them with the legal benefits protected by administrative law.If they are consistent,quantitative standardshould be applied,the degree of social harm is the only basis for the establishment of criminal illegality;if they are inconsistent,the quality standard should be applied,and the relevant concepts should be substantively explained in combination with the legal interests protected by specific criminal law provisions,in order to define the establishment of criminal illegality finally.Specifically,the subordination is mainly reflected in the integrity of justifiable causes,the basic role of administrative regulations in understanding the constitutive elements of the criminal law provisions and the impact of changes in the standard of administrative illegality judgment on the criminal illegality judgment;the independence is mainly reflected in the judgment of legal interests protected by criminal law provisions and the interpretation of parts of the constitutive elements.The fourth part of the article mainly discusses the specific application of the relatively independent criminal illegality judgment system in judicial practice.First,the acts carried out based on legal valid administrative licenses exclude criminal illegality certainly,invalid administrative licenses lose their guilty remove function because they are invalid at the beginning,the revocable defective administrative licenses possess or lose their guilty remove function due to the defective reasons.At the same time,the independent judgment of the criminal illegality after negating the guilty remove function of defective administrative licenses needs to combine with the causal relationship between the improper mean and the final legal benefits violation result or danger occurrence.Second,the lack of prepositive unlawful judgment of the administrative organs does not affect the judgment of criminal illegality,and the judicial organs can selectively apply the administrative affirmation of the administrative organs when conducting criminal trials.Third,due to the application in cases of Lu Yong's sale of fake drugs,Zhao Chunhua's illegal possession of guns,and Wang Lijun's illegal business,the system's applicability in practice has been fully demonstrated.