The Research On The Connection Between Administrative Penalty And Criminal Punishment

Administrative penalty and criminal punishment belong to different branches of law respectively and have different function and purpose. But both belong to category of public law, no matter the administrative law or the criminal law and both are the law for protecting the national interests regarding state organs as the subject in enforcing law. Therefore, in essence, administrative penalty and criminal punishment are a means of using public power to carry out social control, are also a specific embodiment to bear legal liability. As a result, both not only can go hand in hand but also should come into being a coordinated and connectional relationship. However, legislatively, there are many contradictions and incoordination in many provisions on administrative penalty and criminal punishment. Combined with law enforcement and justice, administrative penalty and criminal punishment are difficult to connect effectively. The existence of these problems are bound to seriously affect the administrative penalty and the criminal punishment function and role to play. Only the issue of the connection between administrative penalty and criminal punishment is handled correctly, promote the harmonious development of administrative law and criminal law in the application and the legislation, and achieve a fair and just idea of the rule of law.The paper is divided into four parts. The first part analyses the problems existing in the connection between administrative penalty and criminal punishment and reasons for these problems. With regard to the problems, the paper make an analysis from the four aspects. Firstly, the Penal Code is uncoordinated with the attached criminal law in economic law and administrative law, a lot of problems exist on the legislative content and legislative technology. For example, a large number of criminal responsibility provisions in the attached criminal law are not correspond to charges which are stipulated in the Penal Code; and the contents of the attached criminal law that were made before 1997 and the Penal Code are contradictory seriously. Secondly, the weight punished of administrative penalty and criminal punishment are incongruous in legislating. Being shown as the upper and lower limits with fine and forfeit, personal freedom penalty and fixed- term of imprisonment can not link up. Thirdly, the legitimacy of the reeducation through labour is queried and the punishment range weigh in some criminal penalty. Fourthly, there are some phenomenon of "the substitution of administrative penalty for criminal punishment" and "only criminal punishment without administrative penalty" in administrative law enforcement and criminal justice for a long time.This paper thinks that there are the following several reasons for the above-mentioned problems mainly: First of all, in the dependent scattered legislation, criminal punishment clause are stipulated separately in attached criminal law and they are meaningful that must depend on the Penal Code. This causes the legal provisions overly principle, general and single or the legal provisions become nondescript because of modification, so that the attached criminal law and the Penal Code are extremely incongruous. Secondly, the innate political nature with re-education through labor and the idea of national priorities location make it sink into awkward condition. Once again, the reason of leading to "the substitution of administrative penalty for criminal punishent" can be summarized as follows: It is possible for the characteristic of power oneself to offer for it; the narrow department interests have hindered the case from being transferred; The procuratorial organ does not their best to supervise on the administrative law enforcement; and so on... Finally, the reason of leading to the fact that administrative penalty and criminal punishment can not link up effectively include the following three points: First, The systems of linking up of administrative organ and procuratorial organ are not perfected; Second, the law that is applicable to the law enforcement and justice laws and standard that the evidence is adopted are different; Third, the rapid social development cause legislation lag behind.The second part put forward specific methods for the connection of administrative punishment and criminal punishment in the form and content. They including three aspects: Firstly, the independently scattered legislation should be adopted in the form of legislation. That is to set up the criminal punishment clause with independent charge and legal punishment in the economic and administrative law ,in order to make these regulations don't depend on any other laws and can assert illegal activities concrete charge and punishment. Secondly, it delimits the clear spheres of application of administrative penalty and criminal punishment. At first, it should distinguish target punished of administrative illegal acts and criminal illegal acts based on the different qualitative theory; Secondly, under the current legal system in china, for illegal activities of economic field or civil field, criminal punishment and civil liability should be more used; however, for those illegal acts such as municipal management, family planning management and without a victim or the victim being voluntary, it should more apply to administrative penalty. Third, it should establish rationally range of severity of administrative penalty and criminal punishment. For example, the number or proportion of fines and forfeit should be connected from head to foot, the range of confiscating property fine and Confiscation of Property should be linked up, the content with conduct penalty and qualification punishment should be ppropriate, and the length of administrative detention and Surveillance, Criminal Detention, Limited Imprisonment should coordinate. Meantime, the system of reeducation through labour should be reformed and incorporated with drug rehabilitation and administrative detention into a system.The third part put forward principles and methods for the connection of administrative punishment and criminal punishment in law enforcement and justice. First of all, the connection of administrative penalty and criminal punishment should follow the principle of "criminal code comes first" and "Mergering usage" . The former it when the same case is both a administrative illegal case and a criminal case, in principle,the judicial authority should resolve the actor's criminal responsibility according to the criminal procedure first, then the administrative organ resolves the actor's administrative responsibility in accordance with the administrative penalty procedure. The latter means relevant administrative organs should give administrative penalty for the double illegal activities of violating administrative law and criminal law, in addition to criminal punishment by the judicial organs. Secondly, under the circumstance of "administrative penalty coming after criminal punishment", the content of administrative penalty should comply with the following criteria: (a) be not applicable to penalty of similar nature; (b) repeated penalty is allowed with different kind; (c) administrative penalty again after exemption from criminal penalty. Finally, under the circumstance of "administrative penalty coming before criminal punishment", the courts should act by the following standards; (a) repeated usage of the penalty of similar nature, but the offsetting of the administrative penalties should be granted; (b) separate usage of penalty of different nature. The case that administrative organ refuse to transfer should be ordered to transfer, and judicial authority should investigate relevant personnel's responsibility according to actual circumstances.The fourth part put forward the other measures to improve the connection of administrative penalty and criminal punishment. Firstly, improving the legal system to provide the legal and institutional guarantee for the connection of administrative law enforcement and criminal justice. Detailed measures include: The legislation should be perfected and the status of these law should be promoted; The discretionary norms should be changed into compulsory ones in order to strengthen supervision; The range of power and responsibility should be distinct and the legal consequence should be defined. Secondly, establish and perfect the working system of administrative law enforcement and criminal justice linking up, that include normal channels of information transmission and communication, collaboration and cooperation procedures of investigating and handling cases, as well as coordination and communication between the cases; Thirdly, strengthen construction of law enforcement organ and judicial authority, so as to improve ability of law enforcement and justice; Fourthly, set up a perfect supervisory system of law enforcement and justice in order to strengthen supervision; Finally, establish and improve the internal working system of administrative law enforcement organ. Including several following respects: (a)establish the investigation system of separating from handling ones, (b) perfect investigation system of wrong cases, (c) standardize the working system of inspection and appraising, (d)implement two lines of " revenue and expenditure ", (e) to the particularity of the public security organ, adjust rationally the internal division of labor of administering their cases.