A Study On Judgment Of Administrative Offense

The current status of administrative criminal identification in China is that a large number of administrative violations that should be punished by administrative penalties are criminalized.Behind the excessive application of penalties are mostly related to the judgment of administrative offenders.Does the establishment of criminal wrongdoing require the existence of administrative wrongdoing? Can criminal illegality be judged independently? Does the interpretation and application of criminal law provisions necessarily belong to administrative norms? How does certain administrative actions affect the establishment of criminal wrongdoing? Clarify the judgment relationship between criminal illegality and administrative illegality,and take the criminal illegality judgment as the core,construct an administrative criminality judgment system,and keep the legal order uniform while taking into account the criminal law normative purposes.There are three parts in the text.The first part of the article is to sort out and reflect on the attribute difference theory,which is one of the basic theories and illegality judgment standards related to administrative offenders.Defining the legal nature of administrative offenders is the premise of defining the concept of administrative offenders.The discussion of administrative offenders should be carried out within the scope of criminal law.Administrative offenders constitute crimes in the sense of criminal law.Based on the dual illegal attributes of administrative offenders,they should satisfy both the formal requirements of violating an administrative norm and the essential requirements that cause certain infringements or dangers to the legal benefits protected by criminal law.Therefore,this article defines administrative offenders as the relevant administrative law of an illegal country.Norms that have serious social hazards and violate the order of derived lives related to individuals,and should be punished according to criminal law.Among them,the relevant national administrative laws and regulations refer to all laws and regulations with management nature,including but not limited to administrative regulations,and their extensions include food,health,medical,smuggling,finance,taxation,market order,public order,environment,customs,drugs Laws and regulations in the field of administrative management,but do not include laws and regulations in general public security management.Clarifying the concept of administrative offenders is helpful to clarify the types of crimes in our criminal law sub-rules involved in administrative offenders,and further clarify the scope of this article.The theory of attribute difference that distinguishes administrative malfeasance from criminal malfeasance is the judgment standard advocated by many scholars in China on the issue of administrative malfeasance.It concerns the legal benefits in the core areas of criminal law.There can only be criminal regulations,general legal interests outside the core legal interests of criminal law,and administrative regulations and criminal law differ only in the amount of protection.This article puts forward reflections while sorting out related theories.The three theories of the attribute difference theory are flawed.Overemphasizing the boundary between administrative wrongdoing and criminal offenses has little meaning.Therefore,based on the method of eliminating conflicts of jurisdictions,it is based on different jurisdictions.From the standpoint of the relationship of judging illegality,studying the illegality of administrative offenders is the proper path.The second part of the article starts with the three theoretical disputes of judging illegality.The focus of the clarification of the doctrine is focused on the antagonism between the easing illegal monism and illegal relativity.The difference between the two theories lies in the unity of the legal order.There is a different interpretation of whether punishable illegality has existential value.The easing illegal monism takes the theory of quadratic norms as the basis for emphasizing that the criminal law has limitations on the independence of administrative norms over the independence of criminal law.The judgment of illegality advocates a dual judgment model of “general illegality + punishable illegality”.Taking administrative malfeasance as the premise or even the decisive basis of criminal illegality judgment,but the concept of “general illegality” has no existential value,and the “qualitative + quantitative” model of criminal law in China's criminal law makes “penal able illegality” “There is no room for independent evaluation,so the mitigated illegal monism is not suitable for China's criminal law practice.It has the disadvantages of being difficult to self-consistency and is not appropriate.The unification of legal order is not the unification of illegal “concepts” at the logical level,but the unification of legal purposes.There are different normative purposes between different areas of law.Therefore,the standards for judging violations are different.Of course,judgments for violations should be conducted relatively independently.Criminal law is also independent.Therefore,in the judgment of criminal violations,the protection of legal interests should be the core of criminal law.Relatively independent judgments in other areas of law not only reflect the independent character of criminal law,but also can achieve the unity of legal purposes.Therefore,illegal relativity should be promoted.On the judgment path of administrative offenders,the criminal law is the core to directly carry out substantive and relatively independent judgments.Administrative norms are only used as reference materials for criminal illegal judgments,and a relatively independent criminal offense judgment system is established.The third part is guided by the above theories and combined with the relatively independent judgment system of criminal offenses to propose specific methods for judging the offense of administrative offenders,which mainly start from two aspects: one is to remove the subordinate attribute of administrative norms,and the other is to protect the legal benefits of criminal law The core is to conduct a substantive review of criminal violations.Specifically,at the level of application of law,the administrative subordination is eliminated,and administrative dependency is adhered to.First,in terms of the constitutional elements of administrative prisoners,the terminology of the provisions of the criminal law is largely the same as the prerequisite administrative norms.In principle,the same legal concepts should be interpreted in the same way between criminal law and antecedent administrative norms.However,for different normative purposes,the understanding of the same concept of criminal law need not be limited to the scope of antecedent norms.On the basis of the explanation of the purpose of limiting or expanding.Second,the change of the prerequisite administrative norms does not necessarily affect the effectiveness of the criminal law evaluation.Only when the changes of the administrative norms meet the objectives of the criminal law norms and affect the judgment of the criminal law on the doneness of the constituent elements of the act,the criminal impact will be affected.Effect of illegal judgment.Third,the lack of "illegal" provisions in administrative regulations does not necessarily rule out criminal wrongdoing,which is the basic requirement of the legal principle of crimes and is also in line with the current criminal judicial reality.In the judgment of the criminal law,the first is to take the protection of criminal law as the core,and it is clear that the criminal law standard protects the specific rights and interests of people behind the administrative management order.Only the violation of the legal protection of criminal law has reached a degree of punishment worthy of punishment.Before entering the field of criminal law evaluation.Second,the obligations imposed on administrative norms cannot be directly elevated to criminal law obligations.Only obligations that meet the objectives of criminal law norms can be elevated to criminal law obligations.Third,when a specific administrative act becomes a constituent element of a crime,a substantive examination of the effectiveness and legality of the administrative act is required.On the elements of criminalization,on the one hand,the clues of the "administrative punishment" element in the criminal norms are explained;on the other hand,the facts and conclusions of the antecedent illegal identification of administrative organs are reduced to the constituent elements of the crimes related to the criminal law rules.According to the normative purpose of establishing the charge,the criminal law's legal interest is the core of the review,and it is not necessary to accept it in its entirety.With regard to the elements of a crime,a legal and effective administrative license certainly prevents the establishment of criminal illegality;for an invalid administrative license,it has no legal effect from the date of issue and does not have a criminal function in criminal law;for a revocable defective license,Before being revoked in accordance with the law,differently affirm or deny its criminal function according to the cause of the defect.If the defect is caused by the unilateral fault of the administrative organ,it will not affect the permitted criminal function;if the administrative counterpart is at fault,Whether a defective license can prevent criminal illegality should be determined based on the normative purpose of the relevant crimes involved in the act and the specific facts of the case.