A Study On The Relative Independence Of Criminal Illegality Judgment Of Administrative Offenders In China's Criminal Law

In recent years,there have been some controversial cases,such as the case of Lu Yong selling fake medicines,Zhao Chun hua's illegal possession of firearms,and the controversial traffic accident cases that have been controversial.The common problem in these cases is that some administrative violations are treated as crimes,which leads to the excessive expansion of penal powers.There are of course procedural reasons for such problems,but the main reason is that the relationship between administrative violations and criminal violations has not been clarified in the substantive law of criminal law.Judgment of illegality of administrative offenders has always been one of the hotly debated issues in the field of criminal law,and theoretical disputes continue,and similar problems continue to emerge in practice.Is the judgment of criminal offense of administrative offense completely subordinate to or completely independent of administrative offense? Clarify the judgment relationship between administrative violations and criminal violations,build a system for judging criminal violations of administrative offenses,unify the identification of administrative violations of criminal offenses,regulate the scope of application of penal powers,and make the concept of justice in criminal law in line with the common legal feelings of the people.As for conflicts.This article is divided into four parts:The first chapter focuses on the overview of administrative prisoners.Because administrative offenders are foreign words,in the analysis of concepts,we cannot completely abandon foreign theories that can be used for reference,and of course we cannot completely ignore the current status of China's legislation.First,the doctrine of the concept of administrative offenders in German and Japanese criminal law is introduced.In German criminal law,administrative offenders refer to the violation of the order of administrative punishment,which is essentially administrative malfeasance.Japan has broad and narrow definitions of administrative offenders.Taiwan scholars' understanding of administrative prisoners is not uniform.Based on the legal and cultural background of our country,administrative offenses refer to acts that violate national administrative regulations and are punishable by penalties due to serious circumstances and violations of the provisions of criminal law.According to this concept,administrative offenders have four characteristics,and administrative offenders can be divided into formal administrative offenders and substantial administrative offenders.The second chapter mainly studies the relationship between administrative violations and criminal violations,mainly the differences in the attributes of the two and the judgment of the relationship between the two.The differences between administrative violations and criminal violations are mainly qualitative differences,quantitative differences,and the qualitative and quantitative differences.Through evaluation,the qualitative and quantitative difference theory is the coordination and fusion of the quality difference theory and the quantity difference theory.At the same time,it recognizes that the difference between "quality" and "quantity" between criminal violations and administrative violations is reasonable.In addition,by analyzing the existing theories of illegal relations,the moderate illegal monism conforms to the principle of the unification of legal order.An act that is legal in any departmental law in the legal order should also be legal in other departmental laws.At the same time,compared with general violations,criminal violations must be punishable.The dual illegality judgment structure advocated by the easing illegal monism has certain significance.It is based on the attributes of criminalviolations reflected in general illegality,and conferring certain relative independence on criminal violations.It is in line with the characteristics of the secondary violation of criminal law and adapts to the context of criminal violation.It is also conducive to abandoning the idea of "Criminal Law Almighty".The third chapter is mainly trying to construct a theoretical system for judging criminal offenses of administrative offenders.The dual judging criterion of illegality determined according to the moderate illegal monism shows that administrative offenders have the characteristics of sub-property and independence.Judging the criminal illegality of administrative offenders first needs to determine that the behavior violates the pre-administrative regulations.Without administrative violations,there are no prerequisites for the establishment of criminal violations;secondly,criminal law independence is based on the quality difference between administrative violations and criminal violations Sexual judgment.The Sub-property are mainly reflected in three aspects: One is that there is no pre-administrative law and criminal offences should not be directly identified;The other is that the understanding of the concept of the criminal law depends on the related concepts in pre-administrative law;The third is that changes in administrative law norms affect criminal illegality judgments.Independence is mainly manifested that the legal interests protected by criminal law require independent judgment.Criminal acts are not prohibited because of their dissatisfaction,but because of possibility of infringement of legal interests combined with them.Independence is manifested in the following areas: The accumulation of administrative illegality will not necessarily lead to criminal violations;The concept of criminal law does not have to be consistent with the related concept of administrative law;Administrative determination is not a prerequisite procedure and necessary basis for criminal determination.The fourth chapter mainly applies the theory of relative independence of judgment of administrative offenders to judicial practice.This part selects the basis for determining liability in traffic controversy which is more controversial in practice and the determination of "guns" in the crime of illegal possession of firearms as theobject of discussion.The traffic accident crime is a typical administrative crime,and it is a high-incidence crime in daily life.The discussion has never been interrupted,and its research has practical significance.The interpretation of "firearms" is the key to the identification of gun crimes,especially after Zhao Chun hua's illegal possession of firearms has aroused widespread discussions,and his research can resonate.Judicial interpretation stipulates that the establishment of the crime of causing traffic accidents is based on the assumption of full responsibility,primary responsibility,or equivalent responsibility,which involves how to determine responsibility and by which authority.The determination of liability in administrative law and the conviction and punishment in criminal law are for different normative purposes,and the liability for traffic accidents in administrative law cannot be directly linked to criminal liability.Criminal law of the same concept can be interpreted differently from pre-administrative law.The definition of "firearms" does not have to be completely consistent with administrative norms.For the purpose of legal interest protection in criminal law,the firearms in the crime of illegal possession of firearms should be determined on the basis of "sufficient sensation or loss of consciousness".