Investigation And Treatment Of The Intersection Of Criminal Law And Administrative Law

Within the legal system of a country,criminal law and administrative law may be intertwined and affect each other.With the development of society,more and more administrative prisoners have been written into criminal law,and they are inseparable from administrative norms.Throughout China's criminal code,many of these crimes are premised on violations of the obligations set by administrative regulations.Only when the administrative law is violated,the possibility of establishing a crime can be established.As for the specific manifestation of criminal behavior,it can only be referred to relevant Only the administrative norms can be clarified;the criminal constitutional elements of certain crimes are recognized and supplemented by relevant administrative organs through administrative acts.For example,in addition to acts that infringe on legal interests,the actor must also meet A crime is established only when the order is obeyed or even punished by the administrative organ;there are many provisions that directly write the concepts provided in the administrative law into the provisions of the criminal law without explanation,and the understanding of these concepts directly It is related to the identification of core concepts such as the subject of crime and the object of crime.Therefore,these criminal law provisions have the characteristic of being “subordinated” to administrative legal norms.Today,with the gradual advancement into a risk society,the criminal law provisions with administrative subordination have become the norm.They are widely distributed in traffic crime,financial crime,environmental crime,tax crime and other fields,and they are bound to play a greater role in the near future.The number will also increase significantly.Under the goal of realizing the modernization of the national governance system and governance capacity,the application of the rule of law thinking and the realization of social governance through the rule of law have become the general trend.Among them,the public and legal system dominates the important role of criminal and administrative law.The "synergy" of a public law system needs further discussion.As we all know,criminal law and administrative law,as two important departmental laws,play an important role in their respective fields.With the development of society,more and more administrative prisoners are written into criminal law,and they have the same meaning as administrative norms.Inseparable links.At the same time,the criminal law and administrative law have a more complicated situation in terms of illegality,responsibility,and connection application,which makes the intersection of criminal law and administrative law a problem in theory and practice,just as the German scholar Kesterling Said: "This is a question that despairs legal scholars."From the perspective of the adjustment of departmental law,it can be said that administrative law covers almost all areas of people's daily life,while the criminal law,which is the guarantee law,covers most of the areas of administrative law adjustment,which has led to criminal law and administrative law.The overlap in the scope of adjustment has led to conflicts between the norms of criminal law and norms of administrative law.Zhao Chunhua's illegal gun-holding case,Wang Lijun's purchase of corn without a license,and Lu Yong's sale of anti-cancer drugs have aroused heated discussions and discussions nationwide precisely because they failed to properly handle and coordinate the provisions of the Criminal Law and Administrative Law.As a result,the appraisal conclusions in criminal law are often questioned by the public in terms of their validity.Although this issue has attracted widespread attention from scholars,and many scholars have conducted in-depth research,so far,from the perspective of norms,the boundary between criminal law and administrative law is still ambiguous;from the perspective of trial practice It is still difficult to distinguish between criminal violations and administrative violations;from the perspective of demarcation of rights,the demarcation criteria between criminal judicial power and administrative power are still unclear;from a practical perspective,the connection between criminal law and administrative law is not very clear ideal.As two different legal methods to adjust social relations,criminal law and administrative law play a pivotal role in maintaining social order,achieving fairness and justice,and promoting the construction of socialist rule of law.This method must form a coherent and orderly organic whole.Defining the scope of adjustment of the power of punishment and administrative punishment reasonably is one of the important contents of practicing the socialist rule of law.In the situation of increasing criminalization,how to balance the contradiction between the goal of comprehensive social governance and the principle of humility in criminal law has become a proposition that criminal law scholars should consider.Due to many subjective and objective reasons,there are overlaps and crossovers in the scope of adjustment between the power of criminal punishment and the power of administrative punishment.Therefore,it is necessary to clearly define the basic areas of the scope of public power of two different natures.On the basis of a reasonable division of the scope of power of the two,it is necessary to properly link the two as necessary and benign,so as to promote the overall operation of public power to be smooth and legitimate.Obviously,the necessity of distinguishing between crime and administrative violation lies in clarifying the scope of the power of criminal punishment and administrative punishment.And so it involves many aspects such as the legal liability of administrative law and criminal law,the boundary between administrative violations and criminal violations,and the legislative model.Therefore,how to find a win-win balance between theory and reality is also of positive significance in the discussion of this topic.When choosing a frame of reference,Chinese practice is always the most important standpoint.How to use theory to explain China's problems is the consciousness of criminal law theory that Chinese practice should have in the new era,and it is also the basic responsibility of the theoretical community.Criminal law norms are a result,not a prerequisite.Criminal law must be sought from society.In this sense,the science of criminal law includes not only the study of the norms of criminal law itself,but also the study of social phenomena in many aspects of criminal law and social control.As the two pillars of departmental law norms of the public law system,criminal law and administrative law rely on different rights carriers to exert and achieve their effects.It can be said that no matter from a macro perspective,or from the formulation and construction of the specific departmental law system,the different characteristics and aspects of the criminal law and administrative law are consistent with the law's internal development law,but the two major departments The failure of Fa to effectively carry out dialogue and exchange is a phenomenon of alienation that runs counter to the goal.Therefore,the research on the cross-cutting issues related to criminal law and administrative law and the research on the approach are of great significance both theoretically and practically.Based on this idea,this article mainly starts from the chaos of the cross-cutting issue of criminal law and administrative practice in academic circles and judicial practice,proposes the criterion of illegality of "regular protection purpose",advocates the judgment position of the relative subordination of criminal law,Scientific answers to the questions of the cross phenomenon of law.It can be said that criminal law is an old and new subject.Lately,with the influx of German and Japanese criminal law theories,research methods that emphasize both systemic thinking and problematic thinking have begun to receive attention and attention.At the same time,as a discipline of value judgment,the problems in criminal law seem to be full of debates and even opposing academic debates.The development of modern criminal law is actually a process in which schools of contention continue to deepen and seek common ground while shelving differences.In the light of systemic thinking and problematic thinking,the author selects some topics that have been controversial in criminal law theory and judicial practice in recent years,and discusses them in chapters.On the one hand,it tries to elucidate the author's fragmentary thinking on the hot issue of "intersection and investigation of chaotic images of criminal law and administrative law";on the other hand,through detailed argumentation,he also tries to show as far as possible the current theory and practice of criminal law.The latest progress of the research on the above-mentioned cross-cutting issues of criminal law and administrative law.As everyone knows,the value of criminal law,the norms of criminal law,and the practice of criminal law all express their important significance for establishing the purpose of criminal law."Criminal law is the most accurate legal science." Only by rigorous and precise way of thinking can you draw proper conclusions.Following this line of thought,this article is divided into six parts,and the content of these six parts is progressive and interlocking.The first chapter is history and evolution: an examination of the intersection of criminal law and administrative law,and the theoretical proof of the intersection of criminal law and administrative law.This part studies the historical justification and value justification of the intersection of criminal law and administrative law.The historical justification of the intersection of criminal law and administrative law mainly studies the historical origin and contemporary trend of the intersection of criminal law and administrative law.The proof of the value of the intersection of criminal law and administrative law mainly starts from the difference between the value of criminal law and administrative law,to the unity of the value of criminal law and administrative law in the development.Chapter II,Crossover and Relevance: An overview of the crossover issues between criminal law and administrative law.This part mainly studies the concept and scope of the crossover between criminal law and administrative law,the causes of the crossover between criminal law and administrative law,and the classification of crossover issues between criminal law and administrative law.problem.The third chapter is review and establishment: the approach to the boundary between criminal violations and administrative violations.This part mainly researches the boundary between criminal illegality and administrative illegality,the contention of various illegal judgment positions,the investigation of the basic position of "relative subordination of criminal law",the establishment of judgment rules,and the construction of normative protection purposes.Chapter IV: Responsibility and Connection: The issue of the connection of responsibility and punishment in the intersection of criminal law and administrative law.This part mainly studies the division of criminal responsibility and administrative responsibility,the reasons for the connection between criminal punishment and administrative punishment,the chaos in the practice of the connection between criminal punishment and administrative punishment,and the reflection on the theory of the connection between criminal punishment and administrative punishment.Chapter V,Concurrence and Application: The principle of dealing with concurrence between criminal punishment and administrative punishment.This part mainly studies the principle of co-operation of criminal punishment and administrative punishment,the specific application of the principle of co-operation of criminal punishment and administrative punishment,and issues that need attention in the specific application of the principle of treatment.Chapter VI,Special and Exceptional: Discussion on the difficult problems of the intersection of criminal law and administrative law.This part mainly studies the problems and perfection of the dynamic intersection of criminal law and administrative law,such as the impact of illegal administrative acts on the constitution of crime,the impact of administrative norm changes on the effectiveness of criminal law,and the impact of administrative norm conflict on crime.These six parts reflect the author's exploration in the cross-cutting issues related to criminal law and administrative law.The issues discussed in different chapters have different emphasis: some chapters focus on theoretical analysis,and some chapters focus on specific judicial practice to seek theory.Interaction with practice.