Research Of The Selection And Application Of Administrative Punishment And Criminal Penalty

The environment crime has obvious administrative subordinate,in the regulation environment illegal(crime)behavior's administrative execution and the criminal justice link operation and the practice,must correctly grasp the administrative punishment and the criminal punishment relations.The connection between Administrative Law Enforcement and criminal justice has always been the focus of academic circles.Reviewing the previous studies on the connection of execution,it is often limited to the normative level and the value level of "virtual",combined with empirical research on the rational entity content is still less.It is an urgent theoretical and practical problem to carry out the research on the connecting content of environmental crime entities in combination with specific cases.Entity connection refers to the concurrence and application of administrative punishment and criminal punishment at the level of punishment when the act has the double illegality of administrative and criminal.To discuss the connection of punishment,the illegality judgment is an inevitable research content,at the same time,the principle of modesty and restraint of criminal law,the principle of "one case no longer punished" and the principle of criminal prior principle are of great significance to correctly grasp the relationship between administrative punishment and criminal punishment,and how to understand and apply these principles.When the behavior conforms to the double illegality premise,which kind of treatment pattern should apply,thus establishes the reasonable punishment result.The above questions undoubtedly have important theoretical and practical value and are also the main research contents of this paper.The logical train of thought of this article is,first of all,to conduct an empirical study on the punishment of environmental pollution,combing the actual practice on the link between administrative punishment and criminal punishment of specific problems.Secondly,the author analyzes the basic theories of the demarcation of illegality and the relationship between administrative punishment and criminal punishment to lay the foundation for the follow-up countermeasures.Thirdly,combined with the specific types of competition and cooperation in practice,the paper analyzes and comments on the application mode of competition and cooperation,and analyzes its advantages and disadvantages.Finally,in view of the current situation of administrative punishment and criminal punishment,try to explore the specific measures to improve the link between administrative punishment and criminal punishment.The structure and main contents of this paper are as follows:Chapter One,combining with empirical analysis,expounds the problems existing in the connection of administrative punishment and criminal punishment entity in environmental pollution crime.To show the actual situation of the administrative punishment and criminal punishment of the illegal(criminal)acts of polluting the environment in Shanghai from January 1,2019 to September 30,2019,and to sort out the problems from the perspectives of legislation and application.The existing problems in legislation include that the legislation adopts the mode of scattered dependence,which hinders the connection between administrative punishment and criminal punishment.There is a lack of coordination of the Provisions on the degree of punishment in the legislation,a lack of the provisions on the criminal punishment in the legislation and a lack of the relevant provisions on the concurrence of the two.In application,it emphasizes the seriousness of "substituting punishment with punishment",and the problem of "substituting punishment with punishment" has not been taken seriously.In addition,due to the lack of legislation,there is a serious disparity between the two penalties in practice,the most prominent of which is the same kind of act,the amount of administrative fines for reasons higher than the fine.Then,from the objective and subjective aspects of the administrative penalties and criminal penalties of the causes of the fault.The second chapter,this chapter mainly discusses the basic theories and principles involved in the connection between administrative punishment and criminal punishment.First of all,a clear punishment circle must be divided into administrative illegality and criminal illegality of the boundary.There are three main theories in the demarcation of illegality.The author agrees with the theory of quality difference.On the basis of the theoretical standard,the author concludes that there are differences in the degree of "quantity" of social harmfulness between environmental illegality and environmental crime.According to the relevant provisions,in practice can refer to the characteristics of environmental violations and harm results for comprehensive consideration,to judge the illegality of acts.After the accurate division of punishment circle,we need to consider when the behavior has double illegality,thus establishing double responsibility should pay attention to the problem.Does the establishment of both administrative punishment and criminal punishment on the basis of double responsibility violate the principle of "no more punishment for a single crime" ? The author thinks that the double punishment does not violate this principle because of the essential difference between them.The principle of "modesty and restraint of Criminal Law" and "criminal prior principle" should be observed in the application of punishment.In this way,we can effectively limit the expansion of the "judicial power" to avoid the "penalty instead of punishment" status quo.Only when the administrative punishment and the criminal punishment coincide with the double illegal pollution of the environment,and the specific precondition is met,can the punishment be applied in accordance with the combined punishment principle.As the crime of environmental pollution is less than other crimes,the types of criminal punishment are less,so the types of concurrence are limited.The third chapter,combined with the analysis of the problem and the basic theory of the study,from the legislation and application of the two points of view to improve measures.First,the legislation must be clear on the specific types of implementation of fines for environmental pollution crimes,and to guarantee the amount of fines and the same kind of act of the amount of fine coordination.Secondly,to improve the administrative penalty and criminal penalties linked to the relevant content.Finally,the author expounds the specific problems that should be paid attention to when administrative punishment and criminal punishment coincide.This part is divided into two parts according to the procedure of "punishment before punishment" and "punishment before punishment",and points out that different procedures should pay attention to the concrete contents.