Study On The Basis Of The Elements Of Administrative Regulations As Constitutive Elements Of Crimes

Administrative regulations mainly include departmental rules and local regulations,refers to the State Council ministries or local governments based on the Constitution and the law to develop a general term for the normative documents. In the process of the development of criminal law in our country, the citation of administrative regulations has become a common phenomenon: both the use of blank form of this legislative form to invoke administrative regulations,including the introduction of administrative regulations in the proper nouns, the concept of criminal law provisions.However, since this kind of legal norms is less effective than the criminal legislation level, the legal effect is weak. In the judicial process, it is worthwhile to explain how to explain the administrative regulations invoked by criminal law in determining the elements of the criminal constituent elements To discuss the problem. The explanations described above are nothing less than two. First, the administrative regulations to do with the administrative rules and regulations of the purpose of the interpretation of the agreement, the second is to do with the administrative regulations consistent with the purpose of criminal law interpretation. In other words, whether administrative regulations can be a direct basis for criminalization. There are two diametrically opposed views on this issue: one is that administrative regulations can be directly invoked as elements of the elements of crime; the second is that administrative regulations can not be directly quoted as elements of the crime. The two views have their own basis, controversial. In the judicial practice, the judge often to the first point of view on the grounds of the trial, resulting in the results of the referee and ordinary people contrary to the concept of justice, leading to the court ruling is not acceptable to the public. Thus, the analysis and research on the problem, the two doctrine of induction and comparison, both for the theoretical and practical circles are of great benefit.This article is divided into three parts. The first part is based on the practical problems,with the recent concern Liu Da-wei online shopping simulation gun case as a typical case, through the analysis of the case analysis, leads to the question you want to explore, that is, whether the administrative rules as a component of the crime directly Citing.The second part mainly analyzes the problem from the theoretical level. At present there are two kinds of academic theory,one is sure that one is to say. The two theories have their own views and support reasons, representing two kinds of ideas to deal with the problem, the two theories to compare and to comment on this is also a focus of this article. After the analysis is completed, to further put forward the idea of solving the problem, that is, in determining the elements of the elements of the crime to do the independence of criminal law to judge.The third part applies the above-mentioned point of view to the case described in the opening case to solve the problem in the trial process. But also try to apply this idea to a similar case, for the type of problem can provide a reference and reference program.