| The pre-norm of administrative offender refers to the relevant administrative norm sin pointed to by the crime in the blank criminal law,because it has the connotation of invocation,wide variety and broad field,so there are various difficulties in application.The theoretical community is more discussed with the extension of the pre-norm,in other words,mainly on the "violation of state regulations" "violation of...Provisions,"Violations...Rules and regulations" and other expressions point to the specific content,scholars on the issue of understanding,and therefore has not been conclusive,but no matter what discussion,should be based on the existing legal provisions for analysis,otherwise there will be a violation of the criminal law of the principle.In cases where there is no legal provision,such as "violation of...Provisions,"Violations...The rules and regulations "point to how the object of reference should be determined,and the discussion of such situations needs to be combined with the original intention of the legislator to take the expression and the value of the criminal law itself." In addition,the habits,customs,objective laws and so on in life did not form a unified written text of the content can not become the type of pre-norm of administrative offenders,because the legislator did not absorb it into the scope of the written law has its own reasons,so should respect the decision of legislators,should not be used in the name of judicial application to expand the scope of written law.Under the premise of following the law and combining the legislator’s consideration and the criminal law’s own value,the source of the pre-regulation of administrative offenders should include laws,administrative regulations,regulations and local laws and regulations.How to accurately apply the pre-norm of administrative offenders has become a major problem in the practical field,which has also caused various problems in the application,mainly reflected in the violation of the provisions of the law to invoke the lower order of the pre-norm,the lower-level law and the upper-level law conflict,the new pre-regulation and the old pre-regulation conflict when the application of the old provisions,pre-norms in the blank provisions of the time to refer to the lower order,There is no basis for the reference of pre-norms in the context of the legal interests protected by criminal law and the reference content of judicial interpretation as a pre-norm,and the essence of these problems in practice is the fault of the principle of judicial application and there is no specific guidance of applicable rules.Following the principle of criminal law,the principle ofprotection of legal benefits,the principle of modesty of criminal law and the principle of benefit to the defendant,as well as on the basis of evaluating the existing rules,the rules applicable to the pre-norm of administrative offenders are the requirements of effectiveness,the superior law is superior to the lower law,from the old and light,the secondary norms limited supplement,the same law,the most close contact and judicial interpretation should not be invoked.Finally,the judicial application of the rules should also be the proper meaning in the rules’ establishment questions. |
