| The enforcement of administrative law and criminal justice (hereinafter referredto as the convergence of the two laws) has been a big issue haunting in China’s legalpractice. Although the central government and the judiciary sectors issued a series ofregulatory documents, regulating on the convergence of the mechanisms andprocedures of two laws, there are still a range of problems in practice including "adoptpunishment instead of penalty", do not track down the guilty issue ","caseinalienable"," magnify the judicial determination ". It is still not ideal on convergencepractice of the two laws. The theory of convergence of the two laws can be tracedback the doctrine of state power, but the convergence of the relationship between thetwo depends mainly on the logical relationship between the administrative the illegaland administrative when examining the specific legal system. The need to build asound procedural mechanisms to achieve effective convergence of administrative lawenforcement and criminal justice, not only depend on reasonable a construction of thecriminal legislation, but more directly on the related content and mode selection,administrative offenses and administrative violations identified, the penalty systemand other issues. It can be said that the question of convergence of the two laws is anurgent need to get the support of the criminal law theory.But the issue mainly focused on the improvement of procedures and workingmechanisms till now. There are less research on the deep-seated problems in thesubstantive law. Only rationalize the relationship between the illegal administrative and administrative crime on the substantive law can we resolve further the conflictbetween the administrative enforcement powers and jurisdiction, in order to achieveeffective convergence of administrative law enforcement and criminal justice. Atpresent, there are substantial research on the theory of administrative offenses andcriminal law in China’s criminal law field, but very little from the convergence angleof the two laws, or the perspective of relevance of the two laws. It is difficult to givefull play to the role of theoretical guidance and the theoretical study of criminal lawand the law of convergence practical application associated closely. Therefore, it has avery significant to study the issue from the Criminal Law’s perspective to guide theconvergence of the two laws and its practical operation to improve China’s criminallaw theory.In addition to introduction, this article can be divided into five chapters, namelythe system investigation and convergence theory of the two laws, legislation onconvergence of the two laws, the recognizance of the convergence behavior of the twolaws, punishment of two laws to improve the path of convergence of the two laws.Introduction illustrates the background, the scope of the study, the general idea,research methods and research status, pointing out that the theoretical significance andpractical value of the topic, and the perspectives, methods and innovations.Chapter1-Institutional and related theory on the convergence of the two laws.This chapter proposed the development process, the practical difficulties, the value ofthe theory a general introduction of the issue and can be divided into four sections.The first section is about the proposal and development process on the convergence ofthe two laws. After defining the concept of convergence of the two laws, authorpointed out that the convergence of the two laws, as the chronic problem in legalpractice has attracted academic attention from early1990s, which formally proposedto the State Council in2001to build and perfect the mechanisms of the two laws,convergence, and further elaborated the convergence of the two laws. Section IIdescribes the practical problem on the convergence of the two laws. Author pointedout the following problems: the case inalienable; administrative enforcementfunctions do not play its due role; judicial determination enlargement; JusticeInitiatives and lower treatment rate after the transfer; Mechanism Constructionimperfect. The existence of these problems is also the starting point of this study,followed by four chapters discussed combining these practical issues, to analyze thecauses and seek countermeasures. Section III illustrates the practical value of the convergence of the two laws. It has been pointed out that the effective convergence ofadministrative law enforcement and criminal justice provide a solution path on thecase unwavering, lax enforcement and other issues to promote mutual constraints ofadministrative law enforcement and criminal jurisdiction. The formation of a jointforce of administrative law enforcement and criminal justice, and improve lawenforcement efficiency also conform to the operational needs of the separation ofpowers and checks and balances of power; comply with the requirements of thejudicial system, the reform of the political system, but also to improve the legalsupervision of the Prosecutor General. Section IV discusses the theory of theconvergence of the two laws. This section first discusses the convergence of the twolaws directly related to the three pairs of relationships: the relationship betweenadministrative law and criminal law, executive power and judicial power relations,administrative violations and criminal violations, and that the convergence of the twolaws is a matter of substantive law and procedural law, administrative law, criminallaw, the executive power and the power of punishment, the system of administrativeviolations and criminal problem, not just procedural issues or working mechanism,and to lay the results of the analysis of legislation, law enforcement and punishmentbelow theoretical basis. In addition, due to the adjustment of convergence of the twolaws, administrative crime, this section also elaborated on the concept ofadministrative offenses, characteristics and their relevance convergence with the twolaws.Chapter2-legislative research on the convergence of the two laws. This chapteris divided into three parts. Section I of the convergence of the two laws, legislationOverview. On the one hand, the relationship between convergence of the two laws,and legislation briefly discussed that explore the question of convergence of the twolaws in the legislative reasons may involve: the convergence of the two laws, thestatus of legislation; crime of criminal law and administrative law norms ofadministrative legislation set; interface between the criminal law and administrativelaw status. On the other hand, most legislative issues related legislative modeselection, and the adjustment of convergence of the two laws, the object is mainly anadministrative offense, and thus, this section summarizes legislative models ofadministrative offenses, pointing out that our administrative crime legislation modeUnity Dependency legislative model and elaborate. Section II is the medical two lawsconvergence legislative visits. The convergence of the medical method in this section of the legislation Perspective standardize medical illegal laws, administrativeregulations finishing, the administrative body, illegal, actors and penalties as a majoranalysis of the object, the status of legislation on medical administrative enforcementinduction; involved in the medical crime of criminal law and its judicial interpretationof finishing, and from criminal acts subject to sanctions, the main elements of thepunitive measures, the circumstances of the crime, harm results point analysis ofcriminal legislation on medical conditions; Finally, collate and analyze on the basis oflegislative requirements of the crime of medical illegal and medical, in-depth analysisof the overall situation of the medical two laws convergence of legislation, andpointed out that the convergence of the two laws, in the medical legislation. SectionIII discusses the convergence of the two laws, legislative issues. This section isdivided into four parts: First, the "Criminal Law","Administrative Punishment Law,"Public Security Administration Punishment Law "finishing law involving theconvergence of the two laws, the contents of the legislation, pointing out that thelegislative provisions of these laws on the convergence of the two laws also theflawed institutional provisions of the lack of convergence of the two laws, such ascriminal law, the provisions of the criminal law on the non-penalty punishment haslimitations,"Administrative Enforcement Law on the convergence of the two laws isnot quite complete, and so on; Second, other specifications documents summarize thecontents of the legislation involving the convergence of the two laws, and thesenormative documents still exist ineffectiveness of defect to be addressed; once again,the author points then order the charges under the criminal law, the specific provisionsof the specific charges and the corresponding administrative law correspondinginduction finishing tabular form, on this basis, to examine the legislative issue ofconvergence of Accessory Criminal Law and the Criminal Code, which pointed outthat the current Accessory Criminal Law and the Criminal Code in articulating there isdo not take care of the formulation of criminal not coordination Accessory CriminalLaw and Criminal Rules conflict with the terms of the effectiveness of criminalresponsibility in the Subsidiary Criminal controversial defects. Finally, in order tounderstand the actual situation of the applicable law by the administrative authoritiesin the enforcement process, the author of Jiading District participate in the executiveauthorities of the two laws convergence platform for law enforcement based on thestate of empirical research, found that the current administrative law enforcement isbased on the large number of heterogeneous content, and at the same time there law enforcement conflict based on content, the administrative authority to choose theapplicable law enforcement based on difficulty.Chapter3-identified studies on the convergence behavior of the two laws. Thischapter is divided into three sections. The first section introduces the theory of theconvergence behavior of the two laws, finds."Behavior identified, defined, pointedout that the article refers to" the act shall be "mainly refers to the administrative lawenforcement agencies and criminal justice for a violation of administrative violationsand criminal illegality specific judgments and determination; Second elaborateadministrative identified with criminal identified, pointed out that the concept of thetwo, as well as between contacts and distinction; discusses the significance of theharmonization of administrative identified with criminal identified the practicaloperation of the convergence of two laws. Section II, in-depth analysis of the statusquo of the medical field of administrative law enforcement and criminal justice in theact shall be subject for examination from an empirical point of view, the convergenceof the medical law. Specifically, this section of the medical and criminal justice andadministrative law enforcement situation was a lot of empirical research, for example,from Jiading District, two law convergence platform for medical illegal medical crimedata; understanding of the law enforcement situation to the health sector; access tomedical crime file materials; involved in the illegal practice of medicine in Shanghaigovernance Task Force and other special research ways and means to get thecondition of the medical two laws convergence of practice and in-depth analysis, onthe basis of empirical research, inductive analysis, the convergence of the two laws inthe current medical behavior finds its convergence problem. The third section is theconvergence behavior of the two laws, identified issues to ponder. This section ismainly on the basis of the findings of the medical field of law enforcement, combinedwith the current practice of convergence of the two laws, from the point to the surface,to further demonstrate the convergence of law enforcement practice of the two laws,existence of the problem. Think first of administrative violations and administrativeoffenses distinguish proposed should pay attention to a few basic questions, such asChina and foreign administrative differences on the concept of crime; judicial powerand the executive power with restrictive relationship; administrative violations andadministrative offenses distinguish relative. The convergence behavior of the two lawsidentified deficiencies, for example, finds that the standard is not sufficiently clearand unified. Chief identified with criminal finds there is a conflict, chief identified with criminal finds substitutes for one another.Chapter4-punishment results on the convergence of the two laws. This chapteris divided into three parts. Section I of the two the method convergence punishmentresults related issues. Acceptance of liability requires specific penalties, when on theresults of the administrative penalties and criminal punishment in the convergence.This section first discusses the concepts and their relationships of administrativepenalties and criminal punishment and usually adopt narrow understanding of to drawChinese scholars on administrative punishment, and thus also come out of theadministrative penalty and the penalty punishment in the form of the difference ismainly reflected in the types of penalties then summarized the types of administrativepenalties and criminal punishment. Section II proposed medical administrativesanctions and criminal punishment through empirical research, analyzing the medicallaw convergence punishment results to the problem of convergence. First of all, thehealth administrative departments in2009-2012Jiading District581administrativepunishment book to sort out, to understand the situation of the practice of illegalmedical administrative penalties; Secondly, Jiading District, Shanghai Medicalcriminal cases samples, sorting criminal punishment in the case of the medical andcriminal cases in the area in June from2009to2012, analyzing the illegal practice ofmedicine, birth control illegal surgery, medical malpractice three counts of sentencing.Also specifically investigate cases of punishment if death is the illegal practice ofmedicine, found that although the law provides the legal punishment within the rangeof such cases should be more than a decade in prison sentencing, but judicial practicein such cases the actual sentencing mostly in less than ten years in prison, but alsodemonstrates the judiciary choice of such cases Sentencing grade penalty applicablemainly rely on judicial appraisal. Finally, understand medical illegal medical criminalpenalties, and then the analysis of the problem and the reason for the punishmentresults of convergence exists. To point out that the interface of the types of penaltieson the medical field mainly involves two aspects: First, similar to the interfacebetween the types of penalties; interface between the different types of punishment,but the convergence of these two areas are present predicament. Then, the currentmedical violations penalty units only for personal medical crime sentencingdifferences lead to the main convergence difficulties, as well as fines and penaltiesapplicable to the confusion on this punishment. In addition, the legal punishment ofChina’s Criminal Law Malpractice Crime configuration questioned, on the basis of the argument in the analysis, it is recommended that the medical malpractice legalpunishment of the crime of configuration comparable to or slightly higher thanordinary negligence crime, and different damage health and cause of death theharmful consequences of adjustment for the two tranches sentencing range, andadditional penalty to configure additional criminal penalties ideas. Think the thirdquarter of the convergence punishment results in the two laws. On the one hand,demonstrated compatibility between administrative penalties and criminal punishmentin transformation and the complementary relationship between the two can not replaceeach other, and then from the contingent and the Real convergence analysis of thelevel of punishment results that ought level administrative offense should applicablepunished, but whether in fact subject to double punishment is not confused. On theother hand, from the convergence angle of the two laws, noting that the results of theadministrative penalties and criminal punishment convergence also exists thefollowing question: in light of the severity of the punishment result uncoordinated;legislation provides for penalties result is not clear; responsibilities overlap deal withthe lack of standards; administrative penalties and penalty punishment Also there aresituations such as replace each other.Chapter5-The path to improve the convergence of the two laws. This chapter isdivided into four parts. Section I illustrates the principles of convergence of the twolaws. Since the basic principles of the criminal law of criminal legislation andcriminal justice are of great significance to improve the two laws, convergence, thesame can not be separated from the establishment of principles and applicable. Thissection of the Criminal Code of Modesty, the issue is no longer reasonable andcriminal priority principle in the practice of the two laws, convergence should be howto understand and applicable discussed. Section II of the convergence of the two laws,legislation perfect reflection. Effective convergence of administrative lawenforcement and criminal justice, necessarily involve legislative model scientificselection and co-ordination of the contents of the legislation. First, the convergence ofthe two laws, based on the current legislative problems, the convergence of the twolaws, legislation perfection should follow a clear principle and the principle ofcoordination. Secondly, the analysis of the situation of foreign legislation onadministrative offenses, summarized the legislative model of administrative offensesabroad, there are three main types that great unified legislative mode, distributedlegislative mode and parallel legislative model, in these three legislative mode of the pros and cons of the current legislative model a comparative analysis of proposedlegislative approach taken to concentration of the disperse phase coordination ofadministrative crime legislation should Penal Code complemented by a separate typeof criminal norm mode. Convergence of administrative law enforcement and criminaljustice legislation content that legislative convergence mainly includes two aspects:First, the administrative law enforcement and criminal justice in the Scope ofconvergence; second is to keep the administrative law enforcement and criminaljustice punishment severity of coordination, and elaborate on the contents of thelegislation on convergence from these two areas. The third part is about the effectiveapplication of the convergence behavior of the two laws, identified analysis ofcountermeasures. First, the exploration of the behavior found to be followed twoprinciples, namely the principle of the protection of human rights and socialprotection coordination; take into account the principles of fairness and efficiency;Secondly, combined with China’s criminal law theory and judicial practice,differentiate and identify administrative violations and administrative offensesstandard setting recommendations can be taken based on the behavior of the degree ofsocial harm, Penal Code General Provisions ", the identity of the actors, the differentelements of the type of behavior as a supplementary reference standard to solve twolaws convergence in problem behavior found ideas. On this basis, distinguish thespecific application of the standards in the convergence behavior of the two lawsidentified. Finally, based on analysis of the practicing favoritism is not handed over tothe judicial application of criminal cases and the convergence difficulty, it isrecommended to modify the guilt and the legal punishment of the crime of legislationperfect, while strengthening the effective application of the offense to play itsconvergence in the two laws in the boot and deterrence. Section IV discusses thebuilding rules of administrative law enforcement and criminal justice penalties resultof convergence. Two laws convergence results in penalties interface issues, mainlyhow to deal with the administrative penalties and criminal punishment in coincidence,this section first summarizes the current theory, the result of convergence ofadministrative law enforcement and criminal justice and punished three differentprocessing mode that merge apply alternative applicable conditions attached and, inthe analysis of the pros and cons of the various processing modes, pointed out that thetwo laws of convergence the punishment results of convergence, in principle, should"merge application, except in accordance with the provisions of the law or practice specific circumstances, to choose one applies as exceptions and additions. Determinethe processing mode, three different scenarios exist for penalties result of convergencepractice to summarize: first to make administrative punishment, made after criminalpenalties; second is to impose criminal penalties, made after the administrativepenalty; transfer the case to justice authorities after last is not criminal penalties, butthe behavior in line with the conditions of the administrative penalty. Then, when eachof these three cases punishment results in convergence the specific applicablediscussed. |
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