A Study On The Application Of Prepositive Administrative Norms In Statutory Crimes

Under the background of the increasing number of statutory crimes,the legislative model of the prepositive administrative norms has become commonplace.As a restrictive element of individual offences in the criminal law,the prepositive administrative norms of statutory crimes affect the outcome of conviction and sentencing.However,in China’s judicial practice,there are many problems with the application of the prepositive administrative norms,and there are even a large number of socially controversial cases.Therefore,studying the application of the prepositive administrative norms in statutory crimes,on the one hand,can provide justification and operability for special cases in terms of conviction and lenient punishment,and correctly deal with the intersection of criminality,and safeguard judicial authority.On the other hand,it is of great significance to correctly deal with the conflict between the modesty of criminal law and the positive legislative posture.This paper firstly defines and analyses the concept of prepositive administrative norms in statutory crimes.And then according to the different administrative attributes behind the prepositive administrative norms classifies statutory crimes into two categories:preillegality administrative offenses,which corresponds to abstract administrative acts,and preprocedure administrative offenses,which corresponds to concrete administrative acts.The two types of prepositive administrative norms are different,so there are also different problems in judicial application.The problem of the application of the pre-illegality administrative offenses mainly exists at the normative level.Its problem is manifested in the same interpretation of the same terms in administrative law and criminal law in judicial application,leading to the mechanistic invocation of administrative norms,which in fact is due to the neglect of the external review of administrative norms,i.e.the absolute adoption of administrative determinations in judicial decisions,taking the conceptual interpretation and pre-illegality administrative offenses in the antecedent administrative norms as an important basis for conviction.The problem of the application of the pre-procedure administrative offenses exists mainly at the procedural level,manifesting itself only in the presence or absence of the elements of the predicate procedure.In fact,the problem is due to the neglect of the internal review of the facts involved in the predicate procedure,leading to the unconditional and direct application of the legal effects of the predicate procedure.It makes the criminal law lack independent factual judgment on administrative aspects,which inevitably leads to the expansion of criminal justice criminalization and the distortion of trial results.The rationalization of the application of the prepositive administrative norms involves the choice of criminal law illegality judgment.After analyzing different illegality judgment standards,it is believed that different illegality judgment standards should be adopted for two different types of statutory crimes.The judgement of the illegality of the pre-illegality administrative offenses of statutory crimes should adopt the relative subordination theory,while the judgement of the pre-procedure administrative offenses of statutory crimes should adopt the relative independence theory.In addition,it is also necessary to take into account the modest nature of criminal law,and find a suitable regulatory framework for achieving judicial restraint of statutory offenders through proactive norms to prevent the expansion and blind development of criminal law.And then adopt the above theories to propose solutions to different applicable problems.The preillegality administrative offenses of statutory crimes should consider and seek evidence from pre administrative norms,but at the same time,it should be clear that pre administrative norms are not the fundamental basis for the determination of criminal illegality.When invoking pre administrative norms,attention should be paid to the legal interests of criminal law.And administrative norms should be interpreted in a purposeful and substantive manner.In the type of pre-procedure administrative offenses,the legal effect of administrative procedures requires judicial organs to make substantive judgments,independently assess the effectiveness of the preceding procedures,and if necessary,criminal law can independently determine the specific form and content of the determination of the preceding administrative procedures.