On The Limitation Of Conviction Of Administrative Crime In China

This paper discusses the related concepts of the limitation of conviction of administrative crime,the reflections and causes of the expansion of conviction of administrative crime,the justification and the basic ideas and the common methods of the limitation of conviction.It is divided into five chapters.The first chapter defines the basic categories of crime,administrative crime,conviction,limitation of conviction and limitation of conviction of administrative crime.The crimes in China’s criminal law are not only illegal but also harmful to legal interests.As a kind of crime,administrative crime also requires criminal illegality and infringement of legal interests.The definition of administrative crime in the theory of criminal law can be amended.Administrative crimes should be amended as follows:An act that violates the administrative law,destroys the administrative order and infringes upon the substantive legal interests behind the administrative order shall be criminal punished in accordance with the law.Substantive legal interest is a kind of social life interest which can be grasped empirically and has important value to human being and be jointly protected by criminal law and pre-administrative law.In the process of conviction,it is the limitation of conviction to exclude the acts that are not the same time with criminal illegality and infringement of legal interest(reaching the degree of penalty)from the crime.For the acts of violating administrative law and destroying administrative order,if they are not both getting criminal illegality and substantive infringement of legal interest(reaching the degree of penalty),the criminal law should be limited,and such acts can not be recognized as crimes.That is the limitation of administrative crime.The second chapter from the judicial practice of administrative crime,pointes out the current situation and reasons of expansion of administrative crime conviction.Compared with the form and essence of administrative crime,there are some problems in the current judicial practice of our country,which are manifested in the formalization and administrative orientation of the conviction of administrative crime.The third chapter demonstrates the justification of the limitation of conviction of administrative crime in China.In the face of the expansion of conviction in judicial practice,it is justified to implement the limitation on conviction of administrative crime.The limitation of conviction of administrative crime is the requirement of the unity of form and substance in criminal law,the consideration of general justice and individual justice,and the modesty of form and substance of criminal law.The fourth chapter demonstrates the basic thinking and the proper choice of the limitation of conviction of administrative crime in China.At present,there are two ways to limit the conviction of administrative crime.The first way is to integrate the form and substance to judge the conformity of the constitutive elements of a crime.According to the legal interest of criminal law,making a essential explanation of the constitutive elements of a crime is independent of the pre-administrative law.If a case does not conform to the constitutive elements of a crime in form and substance,it means that it does not have the criminal illegality and the infringement of legal interest to be limited by conviction.This kind of thinking can be used for reference by Chinese substantial interpretation theory and extraterritorial relative illegality theory.The second way is to judge the conformity of criminal constitutive elements(criminal illegality).That is say,firstly make a formal interpretation of the conformity of criminal constitutive elements consistent with the pre-administrative law,and then judge the infringement of criminal law interests in essence.If there is no criminal illegality and the infringement of criminal law interests,it should be limited by conviction.The theoretical sources of this thinking are the Chinese formalistic interpretation theory and extraterritorial moderate monism of the illegality.It should be said that both of the above-mentioned ideas have their own advantages and disadvantages.In contrast,in the field of administrative crime,the second way is more conducive to balance the general justice and case justice,more conducive to balance the legal interest protection and human rights protection function of criminal law,and more in line with the practice of legislation and judicial practice in China.However,the specific criteria of the second approach can be modified.The prepositioning law to judge criminal illegality should be revised to the appropriate prepositioning administrative law,and the traditional administrative order to judge the infringement of legal interests in essence should be revised to the substantive legal interests jointly protected by the prepositioning administrative law and criminal law.The fifth chapter discusses the commonly used methods of limiting the conviction of administrative crime.As long as the administrative crime case is not criminal illegal and has the infringement of substantive legal interests(reaching the degree of penalty),it should be limited when conviction.On the one hand,the criminal illegality of administrative crime cases can be judged with the help of the appropriate preposition method.The appropriate preposition laws need to be determined according to the principle of unity of the legal order.The premise of the unity of legal order is that the prepositioning law and criminal law evaluate the same behavior type.The legal order is unified in the same type of legal interest protected by pre-law and criminal law.So,first of all,it is impossible for a legitimate act without violating the pre-administrative law to infringe the type of substantial legal interests jointly protected by the pre-administrative law and the criminal law.Therefore,the same types of acts cannot be prohibited by the criminal law without criminal illegality.Secondly,for the acts that violate the pre-administrative law and are prohibited by the criminal law,when judging the criminal illegality with the help of the pre-administrative law,we should take double limitations to pre-administrative law.For one thing,it is necessary to restrict the prepositioning law from the level of effectiveness according to the principle of legal reservation under nulla poena sine lege.As for the administrative crime with blank written pleadings,the effectiveness level of prepositional law should be determined according to the expression of criminal law.As for the administrative crimes with unwritten blank pleadings,the appropriate prepositioning law requires to reach the level of law.For another thing,we need to select the appropriate content of the prepositioning law:the first step is to select the same type of conduct as the constitutive elements of criminal law in the prepositioning law;the second step is to select the provisions of the prepositioning law violated by the same type of conduct as the constitutive elements of criminal law;the third step is to select the provisions whose purpose of normative protection is to protect substantive legal interest from the provisions of the prepositioning law.On other hand,judge the infringement of substantive legal interest in administrative crime cases.The two administrative legal interests of law order and simple administrative order should be expelled from the current legal interest of the criminal law.With the help of unity of appropriate administrative law of behavior violation,the legal interest of proper management order of criminal law can be restored into substantive legal interest protected by both pre-administrative law and criminal law.Then,by combining the facts constituted by various crimes of the case and comparing the criminal normality,we do specific judgment of the infringement of the case on the substantial legal interests existing in the real society and the degree of infringement.