Research On The Pre-administrative Procedure Norms In Criminal Law

With the advent of the era of statutory crime,the legislative norms of administrative criminal law show a variety of forms.In the legislative system of administrative criminal law,the pre-administrative illegal norms marked by "violating national(relevant)regulations" and "violating specific administrative law norms"("blank of criminal law provisions ")and Taking the procedures of "being ordered to take corrective measures by the relevant government departments","without administrative permission" and "by administrative penalty" as the pre administrative procedure norms.All of them are the legal standard basis for the determination of administrative crime.Among them,the pre-administrative procedure norms refer to the general term of the space-time procedural matters which are placed in front of the establishment of a crime,such as the way,step,time and frequency implemented by the administrative subject to exercise the administrative authority.The distinction between the per-administrative procedure norms and the per-administrative illegal norms can not only be found in the administrative act theory of administrative law,but also there are also expressions of normative types which are mutually corroborated in the criminal law.The classification of the two norms is based not only on the administrative act theory of administrative law,but also on the principle of legality in criminal law.However,the current academic research on the theory and practice of administrative crime focuses on the research of pre-administrative illegal norms,easy to ignore the independent status of the pre-administrative procedure norms.Even so,the academic and practical circles regard the pre-administrative procedure norms as a part of the preadministrative illegal norms,and then study the pre-administrative procedure norms.The phenomenon is actually based on the system positioning of criminal law as the substantive sector law.In the traditional theory,the criminal law is the substantive sector law,so there shouldn’t exist procedural norms in the system of criminal law norms,otherwise the definition of substantive law and procedural law will be superfluous.However,in fact,criminal law is the basic system of substantive sector law,which is compatible with the procedural norms contained in criminal law.The reason that criminal law and procedural law act as substantive sector law and procedural law respectively is based on the different basic purposes of their application.Specifically,criminal law is the basic norm to define rights and obligations as the realization of punishing crimes and protecting human rights,and criminal procedure law is the basic norm to ensure the orderly realization of rights and obligations.In other words,procedural norms do not solve the problem of crime and penalty,but solve the problem of crime confirmation and investigation.Based on this,of course,procedural norms can not enter the field of vision of criminal law norms.However,in the legislation of administrative criminal law,for the purpose of promote the recovery of legal interests in time,the restrictive function of penalty expansion and strengthening the effect of subjective proof,legislators will take the pre-administrative procedure norms,which represent the dynamic process of administrative law enforcement,as an important node of "convergence of norms of criminal law and administrative law".In criminal legislation,the pre-administrative procedure norms have an important impact on the establishment of a crime.Even,the preadministrative procedure norms determine the nature of the constitutive elements of substantive crime.Therefore,although the pre-administrative procedure norms are a procedural norm,but it’s guiding function of establishing a crime is the same as the substantive norms of criminal law.At this time,the procedural norms of criminal law are no longer the guarantee norms for the orderly implementation of the relevant rights and obligations in the litigation procedural law,but are the basic norms for the division of criminal rights and obligations.At present,the academic and practical circles ignore the independent type of the preadministrative procedure norms,or attach them directly to the pre-administrative illegal norms and discuss them together.This leads to the basic concept of pre-administrative procedure norms directly using the administrative procedure concept.Finally,there are different degrees of problems in the three aspects of "system positioning,legislative methods and judicial application" in the criminal law.In the face of the above three kinds of problems,this paper discusses the specific problems and the corresponding countermeasures from six chapters,and clearly distinguishes the administrative procedure of administrative law and the preadministrative procedure of criminal law in the definition of basic concepts,puts forward new types of the constitutive elements of crime of procedural in the orientation of normative system,and clearly distinguishes the pre-administrative procedure norms and pre-administrative illegal norms in judicial application methods,the independent principle of criminal illegality judgment of pre-procedural administrative crime and the principle of administrative dependence on the judgment of criminal illegality of pre-illegal administrative crime,and constructing a set of basic rules for the independence standardizing judicial cognizance.Specifically:Chapter 1: The basic theoretical summary of the pre-administrative procedure norms in criminal law.This chapter mainly discusses the concept definition,related concept comparison,type division,legislative characteristics and function analysis of the preadministrative procedure norms.The definition of the pre-administrative procedure norm starts from the two aspects of "administrative procedure" and "prepositiveness",and discusses it from the viewpoint of "objective procedural facts".It concludes that the pre-administrative procedure norms refer to the general term of the space-time procedural matters which are placed in front of the establishment of a crime,such as the way,step,time and order implemented by the administrative subject to exercise the administrative authority.According to the definition of the basic concept,the pre-administrative procedure is not the concept of administrative act,prior administrative procedure,other administrative procedure,criminal procedure and pre-civil or judicial procedure.According to the different functions and purposes of the procedure,such procedural norms can be divided into three types: pre-administrative order,pre-administrative license and pre-administrative penalty.In the process of sorting out the types of legislation,we find that there are legislative particularities in such procedural norms by comparing the preadministrative procedural norms with the substantive norms of criminal law and the factual norms of illegality.The reason why the pre-administrative procedure norms can be independent of the substantive norms of criminal law lies in the fact that the former can play special functions such as no need to attach to the identification basis,restrict the expansion of criminal punishment,timely promote the recovery of legal interests,strengthen the subjective proof effect,and exclude the concurrence of legal provisions,which are not possessed by the substantive norms of criminal law.Chapter 2: The specific problems existing in the pre-administrative procedure norms of criminal law.This chapter is mainly from the normative legislative model defects,system positioning deviation and administrative dependent judicial phenomenon three aspects of specific issues.First of all,the legislative types of the pre-administrative procedure norms have not been paid attention to.Therefore,the complete exclusiveness and one sidedness of the unitary legislative model,the randomness of the scattered legislative model,the elements replace risk of the legislative model and the formalized text procedural legislative model are full of the legislative process of the pre-administrative procedure norms.Secondly,the position of the pre-administrative procedure norms in the criminal law system is also complicated.At present,there are mainly five kinds of theories in the academic circle,such as "subjective proof elements","attached attribute provisions","objective punishment conditions","double mark elements" and "litigation preparation procedure".However,these five kinds of theories can’t give full play to the should be of functions of the pre-administrative procedure norms in judicial practice,and do not conform to the legislative intent of the norms.Finally,according to the principle of administrative dependence that the current pre-administrative procedure regulates judicial identification,criminal justice can easily bring the inherent defects of administrative procedures in administrative law,the loopholes of specific operating rules,the confusion of administrative control order and the legal interests of economic criminal law,as well as the suppression of individual free play by public interests associated with administrative procedures.Chapter 3: The basic position of implementing the principle of justice in the preadministrative procedure in criminal law.This chapter emphasizes that the principle of due process in procedural law should be integrated with the principles of legality of crime and punishment,responsibility doctrine,suiting punishment for crime and legal interest protection.Or,the specific contents or sub principles of due process principle in the administrative law should be updated in combination with the principle of legally punishment crime in the criminal law,so as to adapt to the principle and practice of pre-administrative procedure norms.Therefore,the criminal law does not need to introduce all the sub principles of due process in the administrative procedure law when establishing the basic position of the application of the pre-administrative procedure norms.Based on this,on the basis of reflecting on the conflicts between the specific sub principles of due process principle in administrative procedure law and the basic principles of criminal law,this paper selects,updates or reshapes the five basic positions of the application of criminal law,including the principle of full participation in the procedure,the principle of flexible procedural form,the principle of proportional application of procedure,and the principle of equal and open procedure,the principle of clear procedure rules.In this way,we can guide the updating of the orientation of the pre-administrative procedure standard system,the setup optimization of the legislative model and the establishment of the independent method of criminal justice application.Chapter 4: The type promotion and system positioning of the constitutive elements of crime of procedural.In order to effective solve the complex problems of the five types of system positioning theory,the chaptercombined with the independent concept of pre-administrative procedure norms,and on the basis of distinguishing the pre-administrative procedure norms from the substantive norms of criminal law,puts forward the type advocacy and system positioning of the constitutive elements of crime of procedural.There are two necessary foundations for this practice: first,the content of procedural norms can be used as objective elements of crime.According to the origin and development of the concept of the constitutive elements of a crime,the elements of a crime do not exclude the content of procedural facts.Second,procedural norms as the elements of crime have unique effects.It is precisely because the constitutive elements of crime of procedural have the unique function of surpassing the constitutive elements of substantive crimes,and it is a new type independent of the constitutive elements of substantive crimes,the constitutive elements of crime of procedural have the necessity of type promotion.In the specific understanding of the constitutive elements of crime of procedural,it should be the conditions stipulated in criminal law.Therefore,there is no implicit and indirect constitutive elements of procedural crime in criminal law,the judicial interpretation should not set up the constitutive elements of crime of procedural at will.In addition,the criminal judiciary should advance apply the constitutive elements of crime of procedural rather than selectively.Chapter 5:The optimization of the legislative setup mode of criminal law of preadministrative procedure norms.In view of the specific problems of the above-mentioned legislative mode of procedural norms,this chapter puts forward the optimization scheme of the legislative setup mode of pre-administrative procedure norms.The scheme mainly includes five aspects: first,dredge the two-way relief procedure of "right subject + administrative subject".In this way,the important legal interests of criminal law can be protected in time in case of emergency.Second,establish the legislative conditions or requirements of the nature of the act,the type of result and the recognition of illegality of criminal law add the pre-administrative procedure norms.Third,the criminal law can clarify the legislative relationship between substantive norms and pre-administrative procedural norms by constructing the parallel demonstrative legislation of pre-administrative procedure norms and risk types,and implementing the causal guidance legislative methods of pre-administrative procedure norms and specific real harm.Fourthly,the legislators can shape the refinement legislative mode of procedural norms by strengthening the diversity and openness of the types of administrative procedure norms,as well as the concretization of administrative procedures such as subjectivity,frequency and duration.Fifthly,the legislators need to distinguish the pure administrative management order and the criminal law social management order,and through the legislative method of transforming the administrative management order into the criminal law social management order,finally realize the legislative transformation from the administrative effect standard to the constituent elements of crime.Chapter 6: The path construction of independent criminal justice of the preadministrative procedure norms.This chapter focuses on the independent methods and sources of criminal law judgment of pre-administrative procedures norms through the different external forms and content expression of pre-administrative procedure norms and preadministrative illegal norms,as well as the principle of administrative subordination of criminal judicial cognizance.On the basis of the the independence judgment of criminal justice in procedural norms,the judiciary can specifically reflect the three aspects before the determination of the independence of criminal justice by excluding the administrative procedure control order from the economic criminal law,distinguishing the economic control from the social control in the administrative procedure control,and pre-administrative procedure guides the substantial identification of abstract danger of individual legal interest,reflected the legal interest type of the guidance of the pre-administrative procedure in criminal judicial independence.Moreover,on the basis of the independence judgment of procedural norms,Judiciary can independently determine the six specific elements that validity of the constitutive elements of crime of procedural,the object and form of service of relevant procedural documents,the flexible forms of procedure in emergency,the degree and ability of the actor to cooperate with the procedure,the number and time of procedure issuance,and the implementation subject of procedure.The research on the norms of administrative criminal law is a necessary link in the research on administrative crime.To clarify the system orientation,legislative methods and judicial application rules of the pre-administrative procedure norms in the criminal law system will be conducive to the latest development of the theory of administrative crime and the scientific solution of the problem of criminal law regulation.In recent years,the main trend of criminal law revision is the expand of administrative crime,at this point,we need to prevent the trend of administrative crime influx legislation expands the judicial crime circle.Different from the pre-administrative illegal norms,the legislative focus of the pre-administrative procedural norms is not criminal punishment,but penalty buffer and "convergence of punishment and execution".Of course,the premise of the above situation is that the protection of human rights and major legal interests in criminal justice needs to implement the concept of balance.On this basis,the research on the pre-administrative procedure norms can solve the real problem of administrative crime governance.