| There are many charges in the criminal law with "Without permission/approval"and "Without authorization…" as a necessary condition for the constitution of the crime,administrative license can be used as a crime prevention cause in our theoretical and practical circles are not controversial.Administrative license is a special crime-preventing cause of administrative criminals,which provides a new idea for the crime of statutory crimes,but the academic circle has not reached a unified view on how to realize the crime of administrative license At the same time,the academic circles also have different opinions on the tolerance of administrative permission to defects in criminal law,the superposition of the two leads to the disagreement on whether the defective administrative license can be guilty or not in both theoretical and practical fields.Based on the analysis of the current theory of the crime of defective administrative license,this paper analyzes the causes of the plight of defective administrative license,mainly the following reasons.First,the choice of position of criminal illegality is different.Because of the flaw of administrative license,it can not be regarded as completely legal at the level of administrative law.Then,whether the recognition at the level of administrative law can affect the judgment of criminal illegality,and how will it affect if it can.The pluralism of the standpoint of the theory leads to the following of many forks in the road of administrative license.Second,the existing classification of defective administrative license is not reasonable.Administrative license is divided into control license and general license according to whether it infringes legal interests.The boundary of the classification seems clear,but in fact it is only the ideal state of the classifiers,there is still no way to avoid specific analysis of the specific situation,the classification boundary has collapsed under countless exceptional circumstances,and finally returned to the legal interests-centered judgment of substantive illegality.Third,part of the interests of administrative law into the interests of criminal law.The aim of criminal law is to protect legal interest.As an important type of Administrative Act,administrative license is an important means of administrative law for order management,whether the administrative order is the legal interest of criminal law,the answer to this question will directly affect the determination of the threshold of the tolerance of defects and the realization of the culpability function of the administrative license of defects,just because the problem of whether the administrative order is the legal interest of criminal law can not be solved properly,there will be a huge controversy in the theoretical circle and different standards in judicial practice.Based on the analysis of the reasons,this paper clarifies the problem of criminal liability of defective administrative permission from the following three steps:the first step is based on the theory of carding,choosing the theory of relative subordination as its foothold;Second,under the condition of distinguishing the aim of protection of administrative law norms from that of criminal law norms,it is clear what legal interests are infringed by defective administrative permission in administrative permission,based on the dualism of legal interests,this paper divides legal interests into individual legal interests and collective legal interests,and discusses that some administrative permits embody individual legal interests,some administrative license embodies collective legal interest,and there are different standards and methods to judge the infringement of individual legal interest and collective legal interest;Third,we should pay attention to the effect of illegality and liability on the malpractice of administrative license,especially on the fault of the parties at the liability level,so as to confirm whether the parties have the possibility of reproach. |
