Analysis On The Standards Of Illegal Determination Of Administrative Crime

The determination of the illegality of administrative criminals depends on the understanding of the constituent elements.The secondary illegality of administrative criminals means that there is overlap or crossover between the administrative criminals and the administrative illegal acts in the types of constituent elements.Whether it can be directly made according to administrative norms,the current theoretical circles mainly have the dispute of "quality difference theory","quantity difference theory" and " quality and quantity difference theory ".In judicial practice,the determination of the illegality of administrative criminals highlights the adherence to the "difference of quantity",overemphasizing the subordination of administrative regulations,ignoring the differences between the administrative law and the criminal law in the purpose of legal protection,resulting in a large number of violations of common sense.In the judgment of common sense,when the administrative law and the legal protection of the criminal law have the same identity,it is no problem to judge the administrative offender according to the administrative regulations,but when the legal interests of the two protections are not homogenous,they still insist on the administration.The subordinates of the regulations are easy to expand the scope of criminal law punishment,contrary to the principle of modest criminal law,and so the determination of the illegality of administrative criminals should be relatively independent,can't blindly emphasize the subordination of administrative regulations.In addition to the introduction,the body of this article is divided into three parts.The first chapter is the status quo of administrative crime' illegal identification.Firstly,the concept of administrative criminals is defined,and the scope of administrative criminals is defined.Secondly,the current disputes concerning the illegal identification of administrative criminals are introduced,including “quality difference theory”,“quantity difference theory” and “quality and quantity difference theory”.In the second section of the first chapter,the current situation of the illegality determination of administrative criminals in China is introduced in detail.More is the expression of the difference in quantity,which is too much emphasis on the subordination of the illegality of administrative criminals.The second chapter is the questioning of the attribute of the administrative offender's illegality.It is mainly divided into three sections to question the rationality of the attribute of illegality from three aspects.The first section questions its rationality from the aspect of legislative value.The administrative law has different essence from the criminal law.The value of order is the primary value of administrative law.The value of criminal law lies in the protection of rights and interests.To the criminal law.The second section is mainly to question the subordination of the administrative offender's illegality determination in theory.In the third section,through three judgments that violate common sense common sense,the rationality of the administrative criminal's illegality identification is questioned.The third chapter is the main innovation and key discussion unit of the article.In this chapter,the author traces the academic development history of the independence of criminal law,and then on the position of relative independence,how to maintain the relative independence of the determination of the illegality of administrative criminals.The first section mainly demonstrates the basis for the evaluation of the independence of administrative crime,and proposes whether the criminal law needs independent evaluation according to wheher the legal protection has homogeneity.The second section mainly argues that the relative independence of administrative offenders' illegality does not violate the principle of identity of the legal order.Instead,it is precisely the adherence to the principle of the unity of the legal order.The third section mainly defines the boundary of the relative independence of administrative offenders,mainly including the relative judgment of such independence.It can't violate the second illegality of administrative criminals.And the legal acts of administrative law basing on the independence of criminal law is not judged to be criminally unlawful,and this judgment of independence cannot violate the principleof modesty of criminal law and cannot exceed the possibility of national prediction.