The Legitimacy Of "Administrative Punishment" As A Condition Of Conviction And Sentencing

The condition of "administration of administrative punishment" as a conviction and sentencing is a major trend in judicial interpretation in recent years.The judicial interpretation of China’s entry into force is sorted out.The role of "administrative punishment" is mainly two.First,as a conviction.Second,as a condition of sentencing,it is theoretically justified to be held accountable for criminal acts that have been re-implemented after administrative punishment.There are different views on this.As a conviction condition,the theory of personal danger,legal fiction and criminal law support function is the theoretical basis.It is not justified to use the principle of prohibiting repeated evaluation to prove that “administrative punishment”is used as a sentencing condition.The administrative punishment has been questioned as the justification of the conviction.First,the “administrative punishment” is because the perpetrator has implemented the same kind of behavior after being subjected to administrative punishment,indicating that the perpetrator’s subjective aspect is more dangerous,but The objectivist criminal law theory is based on the social harmful consequences of behavior;secondly,“administrative punishment” is considered to be a legal imitation of personal danger and social harm,but China’s legal drafting The provisions can only be drafted by the legislature,and cannot be drafted by the judicial organs.Third,the criminal law does have the function of guarantee.However,thereare only one or several types of administrative punishments that the perpetrator has previously suffered because of illegal acts.The type and magnitude of the crime are not completely exhausted.This is in line with the principle of modesty of criminal law.Contradiction.Secondly,“administrative punishment” is legally justified as a condition of sentencing.“Subjection punishment” is a serious and aggravating punishment in sentencing.It does not violate the principle of prohibition of repeated evaluation of criminal law.The previous administrative punishment and subsequent The facts of administrative punishments that become criminal punishments belong to different levels and different natures.Finally,the “administrative punishment” is the norm for conviction,the judicial preparation method of “administrative punishment”should be prohibited,and “administrative punishment” still needs to rely on tradition.The sin element is convicted.The second is to impose restrictions on the application of conviction and sentencing conditions for “administrative punishment”.The research of the article is mainly divided into three chapters:The first chapter is an overview of the impact of punitive sentencing on“administrative punishment”: First,it defines “administrative punishment”,and“administrative punishment” is different from its adjacent procedural,consistent performance and multiple convictions;Analyze the reasons behind the "administrative punishment" as the conviction and sentencing conditions;the third is to summarize the basic types of "administrated punishment" as the conviction conditions and sentencing conditions in the judicial interpretation that is in force in China;the fourth is "administrative punishment" What are the problems with the conviction and sentencing conditions.The second chapter "has received administrative punishment" as a justification for conviction conditions and sentencing conditions.First of all,the current theoretical theory of "administrative punishment" as a condition for conviction and sentencing is discussed.Secondly,the analysis of the “administrative punishment” as a conviction condition and the legitimacy of the sentencing conditions.First,"administrative punishment" is a question of justification as a conviction.From theobjective theory of criminal law,the objective criminal law principle is not based on the personal risk factors of the perpetrator,but the objective result of the perpetrator’s behavior as the basis for conviction;from the principle of legislative fiction,the theory of legal fiction It is impossible to correctly interpret the rationality of "administrative punishment" as a conviction condition,and it does not conform to the principle of legislative drafting;from the perspective of the criminal law’s moderation principle,the criminal law guarantee function can not justify the conviction of "administrative punishment".Because it will expand the criminal circle of criminal law,it is contrary to the economic,supplementary and tolerant principles of the criminal law.Second,"administrative punishment" has theoretical rationality as a condition of sentencing.The reason that "administrative punishment" has been aggravated or severely penalized does not violate the principle of prohibiting repeated evaluation in criminal law,and it is justified as a condition of sentencing.The third chapter,"Administrative Punishment",discusses how to regulate and apply it on conviction and sentencing.First,on the conviction of "administrative punishment",it should be opposed to conviction by judicial interpretation.In addition,"administrative punishment" still needs to rely on the traditional elements of crime as the conviction standard;second,the application of "administrative punishment" on conviction and sentencing Make restrictions.Limit the number of administrative penalties,limit the time interval between administrative penalties,distinguish the types of administrative penalties,and review the legality of “administrative punishment”.