Research On The Decriminalization Mechanism Of Statutory Crime Involving Administrative License

The statutory crime of "without license" as a constituent element(statutory crime involving administrative license)involves 38 crimes in China’s criminal law,and the function of administrative license to commit crimes has not received due attention.Statutory crime involving administrative license has dual illegality.If the crime can be realized in the judgment stage of administrative illegality by identifying the type of administrative license,there is no need to make substantive judgment on the infringement of legal interests,and the crime can be realized in advance.Criminal law scholars have directly followed the traditional classification of administrative law when studying the crime function of defective administrative license and the crime of illegal business operation,that is,special license and general license,and believe that only the act of violating the licensing can constitute a crime.However,due to the unclear boundary between the special license and the general license,lead to the unsmooth decriminalization mechanism.Therefore,it is necessary to clarify the predicament and reasons of the decriminalization of statutory crime,conduct a typological study on the licensed statutory crime,select the type of administrative license that has the value of committing a crime,activate the function of the administrative license to commit a crime,and form a mechanism of the licensed statutory crime that takes "administrative license" and "decriminalization" as the bright line,and "understanding criminal law → going beyond criminal law →transcending criminal law → returning to criminal law" as the dark line.Firstly,the first stage of "understanding criminal law" is to analyze the dual predicament and reasons of statutory crimes from the perspective of administrative license.The dilemma on the form side is that the criminal sub functions of different types of administrative license fail to play,the influence of the change of administrative license type on the conviction of statutory criminal is unclear,and the scope of application of criminal law of the same type of administrative license has not been limited,and the dilemma on the substantive side is that the evaluation of substantive illegality is lacking when the administrative license is not obtained.The reason is that the boundary between the general license and the franchise classification is vague,the classification does not have the value of cdecriminalization,and the substantive judgment path of legal interest infringement is lacking.Secondly,the second stage of "understanding criminal law" is to establish the types and methods of statutory crime involving administrative license.First of all,we should advocate the statutory crime involving administrative license.According to whether it is clearly stipulated in the indictment that "without permission",statutory crime involving administrative license can be divided into the overt mode and the covert mode of the statutory crime involving administrative license,and theoretically it can be divided into the true statutory crime involving administrative license and the untrue statutory crime involving administrative license,the normal permitted statutory crime and the exceptional permitted statutory crime.Then,advocate the mitigated illegal monism,establish the value of administrative license in the judgment stage of administrative illegality,attach importance to the substantive interpretation in the judgment stage of punishable illegality,and give play to the function of administrative license to commit crimes is the core of statutory crime involving administrative license.Thirdly,"going beyond criminal law" is a theoretical study of the type,legal basis and purpose of administrative license.First,abandon the classification of special license and general license,and choose the classification of prohibitive license and imperative license.The distinctive feature of the prohibitive license is the normative words indicating prohibition,such as "prohibition" or "shall not".Its basic structure is "to engage in an act shall obtain a license;to engage in an act without permission shall not" or "to prohibit engaging in an act,except for obtaining a license";The imperative license does not specify the normative words for injunction,and its basic structure is "permission shall be obtained to engage in a certain act".The classification boundary is clear,which can be identified by the provisions of the prepositional method.Second,it clarifies the legal basis for the establishment of administrative license.From the perspective of form,the establishment of administrative license is to maintain public interests and social order,and it needs to restrict civil rights;However,the exercise of power is expansionary in essence,and the establishment of administrative license should follow the principle of legal reservation and the principle of proportionality.Third,it reveals the purpose of the establishment of administrative license type.According to the danger of personal freedom to public interests and the strong and weak relationship between personal freedom and public interests,the principle of narrow proportion is followed to balance and choose between personal freedom and public interests.The purpose of prohibitive licensing focuses on the protection of substantive interests,while the purpose of imperative licensing focuses on the maintenance of abstract order.Fourthly,"Transcending criminal law" is to realize the integration of administrative license and criminal law theory,and exclude the application of criminal law of imperative license.First,based on the purposiveness,it excludes the imperative license that does not conform to the purpose of criminal law.The purpose of criminal law is to protect legal interests.The essential attribute of legal interests is the dispute between the view of legal interests of interests and the view of legal interests of order.By advocating the view of legal interests of interests,it is confirmed that the legal interests protected by criminal law are interests rather than order.The act of violating the prohibitive license violates order and does not constitute a crime.Secondly,based on the theory of as a crime,it excludes the imperative license that is inconsistent with the way of criminal act.The act of violating the prohibitive norms in the prepositional law constitutes a statutory crime as a crime,and the act of violating the imperative norms constitutes a statutory crime of omission.By establishing the statutory crime of license as the act crime,the application of criminal law of prohibition license is affirmed;By proving that the permitted statutory crime not a crime of non real omission,the application of imperative license is excluded.Third,through the identification of the type of administrative license,the acts involving the imperative license will be directly criminalized.Lastly,"Returning to criminal law" is to activate the function of prohibive license.First of all,the scope of application of the prohibitive license is limited.When the current law stipulates multiple prohibitive licenses for the same act,only the act of serious infringement of legal interests can be treated as a crime.Secondly,when obtaining the prohibitive license,the criminal function of legal or defective prohibitive license should be exerted.Whether it is the normal prohibition license or the exceptional prohibition license of defects,it is necessary to make a purposive judgment on the crime function of administrative license according to the defective items.As far as the true permissive statutory offender is concerned,he can commit a crime as long as he obtains the legal prohibitive license;As for the legal crime with no real license,whether it can commit a crime after obtaining the prohibitive license needs to be judged according to whether the type of behavior involves administrative license.Finally,when the prohibitive license is not obtained,it needs to be further judged by the provisions of the prepositional law and the interpretation of the constituent elements of the statutory crime.Under the circumstances that the change of the prepositional law leads to the change of the behavior from the prohibitive license to the complete permission or prohibition,it does not constitute a permissive statutory crime;If the application of the prohibitive license is excluded through the interpretation of the constituent elements,the failure to obtain the prohibitive license does not constitute a crime;Even if it is in line with the administrative illegality because no prohibitive license has been obtained,it is still necessary to make a substantive judgment on the normative elements and the results of legal interest infringement.