On The Conviction Function Of "Administrative Punishment"

In order to solve the problem of the penalty loophole of the same kind of administrative illegal act repeatedly carried out by the person who has not reformed,the criminal legislation and judicial interpretation have gradually appeared to endow the "administrative punishment"with the function of conviction.The conviction function of "administrative punishment" is that the fact that the actor has been administratively punished for committing the same kind of illegal act one time or many times before is taken as a condition of being criminalized when the actor commits the same kind of administrative malfeasance again,so post-action can be criminalized.Because of this provision breaks through the traditional theory of criminal law,its legitimacy is in great dispute.This paper studies the legitimacy of the conviction function of "administrative punishment".and comes to the conclusion that the attitude towards this conviction function should be positive on a limited basis.According to this standpoint,the article also analyzes the insufficiency and the perfect way of the existing stipulation system of this conviction function.This article is divided into four parts:The first part introduces the basic problems of the conviction function of "administrative punishment".Firstly.it defines the meaning of "administrative punishment" in "administrative punishment".Secondly,it defines the function of conviction of "administrative punishment"and analyzes the relationship between it and related concepts.The function of conviction is different from that of criminal record system;"administrative punishment" is one of the invisible forms of repeated crimes,and they have the same justification.Finally,this part also analyzes the mode of "administrative punishment" as the condition of conviction.The second part discusses the legitimacy of the conviction function of "administrative punishment".First of all,this part introduces the divergence of views on its legitimacy.Secondly,this part puts forward the criticism of the negative theory and the deficiency of the existing positive theory.Finally,this part proposes a position of limited affirmation of the conviction function of "administrative punishment".In the dualistic paradigm of anti-value acts,whether adopting the theory of violation of behavioral norms or the theory of danger of legal interest infringement,the "attributes of habitual behavior" of the actor embodied in"administrative punishment" can be interpreted as an illegal element that affects the handlungsunwert of the act.So it increases the degree of handlungsunwert of the act,thereby enhancing the lawfulness of the act as a whole.Therefore,"administrative punishment" has the function of conviction.At the same time,it must be recognized that this criminalization function is only justified within a certain range of limitations.When determining this limit,it is necessary to consider two aspects:on the one hand,the post action’s degree of illegality of erfolgsunwert must reach a certain level;on the another hand."administrative punishment" must meet certain conditions to confirm that the perpetrator has the attribute of "habitual behavior".The third part is to analyzes the shortcomings of the existing system of provisions on the conviction function of "administrative punishment" based on a limited affirmative stance on the conviction function of "administrative punishment".The existing system of provisions has the problems of improperly expanding the scope of the conviction function of"administrative punishment" and system confusion.The former is mainly manifested in four aspects:some latter acts is not limited to have the same nature as the previous illegal acts;there is a lack of limitation on the types of administrative punishment in "administrative punishment";the restrictions on the number of times and time interval of past administrative penalties received by the perpetrator is insufficient;some provisions do not combine the administrative penalty received by the perpetrator with the traditional criminal quantitative elements.The latter is mainly manifested in two aspects:the scope of application of this criminalization function is not coordinated and the condition settings of this conviction function lack logic.The fourth part is to propose paths to improve the existing system.To address the problem of improperly expanding the scope of the conviction function,it is appropriate to limit this incrimination function of conviction reasonably.Specifically,it should be required that the subsequent act be of the same nature as the previously illegal activities which has been subject to administrative penalties;the exhaustion of administrative penalty measures should be stipulated as a prerequisite for this criminalization function;strict restrictions on the number of times and time interval of past administrative penalties received by the perpetrator should be set;and combining the administrative penalty received by the perpetrator with the traditional criminal quantitative elements.Aiming at the confusion of the existing system of this conviction function,the correct approach is to normalize the existing system of provisions.Specific improvement suggestions include reasonably setting up the scope of application of the criminalization function and coordinated setting of applicable conditions for this criminalization function.