Query The Legitimacy Of The Conviction And Sentencing Function Of Administrative Penalty Facts In Criminal Law

It is a major trends of judicial interpretation in recent years to consider the facts of administrative penalty as the condition of criminal conviction and sentencing.In September 9,2013,the Supreme People’s court and the Supreme People’s Procuratorate issued the “on the use of information networks to the implement of defamation and other criminal cases applicable to the interpretation of a number of issues” the provisions of article II: “The use of information networks to slander others,one of the following circumstances,should be identified as the first paragraph of article 246 th of the criminal law,‘the circumstances are serious’ : ……(3)In 2 years,he had been subjected to administrative penalty for defamation and slander others;……” This paper collects and combs the relevant judicial interpretation,there are three functions of administrative penalty in the criminal law: conviction,sentencing and judicial proof.Administrative violations have been administrative penalties into the criminal conviction and sentencing evaluation.Whether the second evaluation of administrative penalty is justified,theorists are controversial.First of all,in fact the conviction of administrative penalty function,questioned its legitimacy: first,the administrative punishment as a criminal conviction and sentencing,apparently repeated evaluation of administrative punishment behavior,due to administrative and criminal law evaluation of administrative punishment homogeneity,therefore the violation of the principle of double jeopardy protection;second,The fact of administrative penalty shows that the personal dangerousness of the actor is greater,so the person is punished,but the criminal law objectivism that personal danger can not be used as the basis for conviction;third,The administrative punishment of the fact as the basis,the crime did not reach the standard behavior as crime and penalty,is legal fiction,should abide by the law drafting principles,not by judicial interpretation provisions.Secondly,in the sentencing,the administrative punishment as a basis for the fact that the heavier punishment,has some problems,and the current judicial interpretation also exists in the sentencing of the administrative penalty repeated evaluation of the phenomenon.Finally,in administrative penalty crime should be chosen to adhere to the mode of crime,rather than the judicial interpretation of crime,the crime in the choice of the form of criminal law legislative drafting system and the administrative punishment and the criminal punishment progressive punishment mode.The rest text consists of four parts:The first part summarizes the administrative punishment in the criminal law as the conditions.Firstly,administrative punishment facts are defined and there are three aspects in the evaluation of criminal law: the conviction,the sentencing and the judicial proof.Secondly,from the criminal policy,the purpose of criminal law and social security to find the reasons that the administrative penalty in the judicial interpretation as a criminal law conviction and sentencing conditions.Finally,summarizing the administrative penalty facts in judicial interpretation.In the second part,the author discusses the legitimacy of the administrative penalty facts in the judicial interpretation.First of all,this paper defines the scope of the application of the principle of double jeopardy protection.The paper pointed out in the conviction of criminal law and administrative evaluation of administrative punishment in evaluation of violate the principle of double jeopardy protection;Secondly,we discuss of subjectivism and objectivism and clear objectivism with social harmfulness behavior as crime basis.We can not take the actor’s personal dangerousness as the standard of crime;finally,explain the legal fiction theory,and points out that the administrative punishment of criminal law as a fact of conviction,is a legal fiction the performance,to comply with the law drafting principle.The third part discuss the legitimacy of the fact of administrative punishment as the condition of criminal law.First of all,the fact of administrative punishment shall be given a heavier punishment according to the criminal law sentencing review.Secondly,reflect on the legitimacy of the administrative punishment as a criminal law sentencing conditions,administrative punishment shall be given a heavier punishment as a criminal law is lack of theoretical basis,and repeated evaluation on administrative penalty and the fact that the phenomenon of sentencing in the criminal law.The fourth part discusses the mode of the crime of administrative penalty.First of all,on the path of crime should adhere to the legislation into the crime against the judicial interpretation of the crime.Second,in the choice of the mode of crime in China’s current criminal law,there are two types of legislative and progressive punishment.