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First, the formulation of questions
With the development of the economy, social risks are increasing, and based on the need to prevent risks, the Criminal Law provides for more and more administrative offenders. The so-called administrative offender refers to the crime of criminal illegality on the basis of violating the norms of the preceding law, which was originally established to punish the crime, but the judicial organ is too dependent on administrative norms when dealing with such cases, and its judgment makes the public doubt the credibility of the judiciary, taking the case of Zhao Chunhua's illegal possession of firearms as an example, the defendant Zhao Chunhua set up a shooting and entertainment booth on the street from August to October 2016 for profit-making activities, and was later seized by the patrolling police on the spot 9 guns and related accessories, plastic bullets. According to the identification of the physical evidence center, 6 of the above-mentioned guns belong to firearms that can be fired normally and are powered by compressed gas. Accordingly, the court of first instance found that the case constituted the crime of illegal possession of firearms and sentenced him to 3 years and 6 months in prison. The court of second instance later changed the sentence to 3 years in prison with 3 years' probation and 3 years' probation based on factors such as the small social harm of the criminal acts involved in the case, the subjective malignancy of the defendant Zhao Chunhua and the low personal danger. The reason why the judicial organs in the above-mentioned cases found that the perpetrator constituted a crime is that there is a dispute over the judgment of the illegality of the administrative offender, so it should determine the standard for judging the illegality of the administrative offender to guide judicial practice.
II. Disputes over the criteria for judging the illegality of administrative offenders and their evaluation
The theory of judgment of the illegality of administrative offenders mainly discusses the judgment of the illegality of administrative offenders from the relationship between the two jurisdictions, and the determination of illegality of administrative offenders involves the judgment of administrative violations and criminal violations, but in the criminalization of administrative offenders, the criminal law plays a decisive role. Therefore, the judgment of the illegality of administrative offenders is actually the judgment of criminal violations among administrative offenders. For the judgment of criminal violations, the point of dispute is whether the judgment of criminal violations is subordinate to the evaluation of administrative law. That is, if the administrative law has made a positive or negative evaluation, whether the criminal law is dependent on the evaluation of the preceding law or has relative independence. This theory forms a discussion of illegal monism, illegal relativity and illegal pluralism.
(1) Unlawful monism and its commentary
The monism of delinquency is divided into strict monism of delinquency and mitigated monism of delinquency. The strict monism of violations favors that criminal law has a "completely subordinate character" to other legal norms, but "has the effect of strengthening the prohibitive orders provided for by other laws, and is a sanction imposed on serious violations of the preceding law." It is argued that there is no independent object of adjustment in criminal law, and that the judgment of criminal violation should be subordinate to the judgment of administrative law, and that the difference between administrative violation and criminal violation is only in quantity. The monism of mitigated illegality recognizes that the judgment of illegality is unified in the overall legal order, but it also holds that according to the different purposes inherent in each law, the forms of violation have various types and stages of severity, so the quality and quantity of illegality required are also different. The mitigated monism of illegality adopts the dual judgment of "general illegality + punishable illegality = criminal illegality", "general illegality" is the superior concept of illegality in departmental laws such as criminal illegality and administrative illegality, and punishable illegality is illegality in the meaning of criminal law. This theory holds that the determination of criminal violations is premised on the judgment of administrative violations, that is, the first act should be an administrative violation, and the second act should be punished by criminal law. Scholars who hold this theory have questioned the establishment of the crime of substitute examination, arguing that the act of substitute examination is not stipulated in administrative law, and that the criminal law elevates the act of substitute examination to a criminal act violates the principle of modesty in criminal law.
Strict monism of violations can avoid inconsistencies in the determination of behavior, but it overemphasizes the subordinate nature of criminal law, is too rigid in judgment of illegality, and the results of handling according to the same norms in different fields are difficult to accept, such as the above-mentioned Zhao Chunhua illegal possession of firearms case, the judicial organ abides by the strict monism of illegality, according to the standards of the Ministry of Public Security for identifying firearms, it is determined that Zhao Chunhua constitutes the crime of illegal possession of firearms, and the judicial organ determines that it constitutes the crime of illegal possession of firearms only for formal judgment, Lacking the judgment that firearms are sufficient to endanger public safety, it mechanically determines that the perpetrator constitutes the crime of illegal possession of firearms in the criminal sense in accordance with the provisions of the administrative law, and unduly expands the scope of punishment.
For the mitigated monism of illegality, the author believes that there are certain problems. First of all, the concept of general illegality has no meaning of identification, and general illegality refers to the legal order, but the legal order is only an abstract concept, and there is no norm corresponding to it, and it seems inappropriate to determine the illegality of the act according to the concept of jurisprudence. Second, the theory fails to explain the purpose of the totality and unity of the legal order. It is difficult to balance the unity of purpose with the uniqueness of the purpose of different jurisdictions. Finally, there is no room for application of this theory in practice, and the judicial organ's determination of whether a crime is established is based on the provisions of the criminal law and the composition of the prescribed crime, and whether the act violates the legal order is not the first factor considered by the judicial organ, so the theory does not have practical guidance.
(2) Illegal relativity and its commentary
The theory of illegal relativity advocates that in the judgment of illegality, the determination of criminal violations is not premised on other laws, and the judgment of criminal violations should be relatively independent. This theory supports the affirmation of the relativity of illegality under the premise of the unity of the legal order, but insisting on the unity of the legal order is not the same as recognizing the monism of moderation, and there is also controversy in the academic circles for the understanding of the unity of the legal order, and the theory of illegal relativity believes that the unity of the legal order is not the formal unity of the concept of illegality, but the unity of the purpose of various legal fields. Different jurisdictions have their own intrinsic purpose, and the hermeneutics of different jurisdictions, as a hermeneutic science with teleological significance, should be purposeful in order to achieve its inherent purpose construction. As far as the normative hierarchy is concerned, it is impossible to serialize the purpose, otherwise the unity of the legal order will be reduced to a system dominated by arbitrariness, and no illegal connotation in any jurisdiction is absolutely considered or judged. At this point, the contradiction can only be resolved through purposeful measurement and historical interpretation of the specific norm itself.
The theory of illegal relativity conforms to the principle of unity of legal order, and at the same time respects the differences in the purpose of laws of different departments under the overall nature, which is in line with the legislative status quo of the mainland and has certain advantages.
(3) Unlawful pluralism and its commentary
The theory of illegal pluralism and the theory of illegal relativity have certain similarities, both advocate the independence of criminal law judgment, but there are differences in the understanding of independence between the two, and the illegal relativity theory advocates the relative independence of criminal law judgment, which is independence under the principle of respecting the unity of legal order. The theory of illegal pluralism advocates that the judgment of illegality in each legal field should "perform its own duties" and be completely independent of each other.
The author believes that the theory of pluralism in violation of the law is too separate from the relationship between criminal law and other departmental laws, and emphasizes the absolute independence of the judgment of criminal violations, which is too absolute. In addition, legal norms have a guiding role, if there is a complete lack of unity of legal order internally, it will lead to different evaluations of citizens' behavior in different legal norms, which is not conducive to the play of guiding role and causes people's distrust of the law.
3. The promotion of illegal relativity
The judgment of criminal violations determines the criminalization of administrative offenders, and the theory of relativity of violations adheres to the relative independence of judgments of criminal violations, which conforms to the principle of unity of legal order and the current situation of mainland legislation, and is suitable as a standard for determining the illegality of administrative offenders.
(1) The principle of unification of legal order in violation of the law of relativity
The principle of unity of legal order means that the overall legal order composed of various sectoral laws cannot contradict or conflict with each other. The unity of logic, the unity of the system and the unity of purpose are further interpretations of the principle of unity of legal order. The unity of logic requires that there is no logical contradiction between the norms within the legal order system; The unity of the system requires further consideration of whether the functions and values realized by each norm are consistent with the basic functions envisaged by the entire legal order and the objective value order formed, so as to clarify the meaning context presented by the entire legal order. The unity of purpose is based on the differentiation of the legal system caused by the different facts of social life, and requires consideration of the intrinsic relationship between the plurality of the ends pursued by the various sectoral laws and the unity of the goals pursued by the legal order as a whole, and the purpose of this unity is the so-called moral value of "objective truth and justice". The unity of logic is too much pursuit of normative consistency, in order to ensure the certainty of behavior determination, it advocates the elimination of normative contradictions, but it ignores the difference in the purpose of each law itself, each departmental law because of the different social fields of the norms, the adjustment of different legal relations, its purpose must be different, and these pluralistic purposes should be equally respected. Therefore, the unity of logic is too absolute to be reasonable. The unity of the system and the unity of purpose not only clarifies that each norm is subject to the unity of value and purpose, but also recognizes the internal contradictions between the norms in the legal order to a limited extent, which is reasonable. On the one hand, the theory of illegal relativity insists on adhering to the unity of the overall legal order from the perspective of value and purpose; on the other hand, the theory of illegal relativity considers the differences in the scope and object of adjustment of various norms, which is based on the unity of the system and the unity of purpose, and conforms to the unified principle of legal order.
(2) The theory of illegal relativity conforms to the current state of mainland legislation
The mainland's criminal legislation shows that not all administrative violations will become criminal violations if they reach a certain degree of illegality, in other words, administrative violations can only fall within the scope of criminal law if they meet a specific standard, and this specific standard is the provisions of the criminal law. Taking specific legislation as an example, in the Road Traffic Safety Law, there are various acts that violate the order of road traffic management, but only the acts specified in the Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases Involving Traffic Accidents can constitute the crime of traffic accidents. This shows that as long as certain acts are not expressly stipulated in the criminal law provisions, no matter how high the degree of illegality, they cannot constitute the corresponding crimes in the criminal law. The criminal law insists on independence at the legislative level, and does not absorb all similar types of acts in administrative regulations, but based on the purpose of criminal law, some acts are included in the scope of criminal law protection.
(3) The theory of illegal relativity is conducive to the function of protecting human rights
Administrative offenders involve the evaluation of administrative law and criminal law, the former emphasizes the protection of order, and the principle of efficiency is its basic principle, but criminal punishment, as a sanction measure for the perpetrator to violate the criminal law, is severe and involves the restriction and deprivation of the basic rights of the perpetrator. Therefore, based on the requirement of protecting human rights, the theory of lawlessness requires the criminal law to interpret the behavior in line with the purpose of criminal law when determining the illegality of administrative offenders, so as to prevent excessive restrictions on citizens' rights. According to the theory of unlawful relativity, judicial organs shall make independent judgments based on the concept of criminal law itself when determining the content of blank crimes in criminal law. The scope of interpretation of relevant terms in criminal law should not be expanded indefinitely, so as to avoid the inclusion of acts that should be governed by administrative regulations into criminal law. For example, the identification standards for firearms in administrative regulations cannot be blindly applied to gun-related crimes in criminal law, otherwise it is no different from conviction under administrative law. The essence of crime lies in infringing on legal interests, and the theory of lawful relativity insists that administrative violations cannot be easily evaluated as crimes, and acts that do not have serious legal interests are excluded from the criminal law, so that the value of the criminal law to protect human rights can be truly reflected.
IV. The specific application of judgments on the illegality of administrative offenders
In administrative offenders, although there is a difference between "quality" and "quantity" between administrative violations and criminal violations, this difference is predetermined by criminal law norms. Therefore, the judgment of criminal illegality is the decisive basis for identifying administrative offenders, and the theory of illegal relativity is a reasonable choice for the judgment path of administrative offenders' illegality. According to the theory of illegal relativity, in the judgment of illegality, it is necessary to respect the unity of the legal order, adhere to the appropriate reliance on the preceding law, and at the same time adhere to the relative independence of criminal violations, and provide substantive explanations of the constituent elements.
(1) Persist in appropriate reliance on the preceding law
Adhering to the theory of relativity of administrative offenders' lawlessness can effectively avoid the excessive penetration of the preceding law and give play to the interpretation function of criminal law. However, the determination of the illegality of administrative offenders also depends to a certain extent on the provisions of the preceding law. Because there are many normative documents of administrative law and the professional requirements in some fields are high, it is appropriate for professional administrative personnel to determine the judgment of administrative violations, so as to provide a basis and support for the judgment of criminal violations. However, this does not mean that the judgment of administrative violations determines the establishment of administrative offenders, because there is a difference in purpose between the antecedent law and criminal law legislation, and the pre-law cannot be the qualitative basis for the determination of crimes. Just as in the case of Zhao Chunhua's illegal possession of firearms, the "Gun Control Law" is the basis for distinguishing firearms from other items, but it cannot distinguish between real guns and imitation guns, when defining "firearms", it is not only necessary to correctly evaluate their lethality, but also pay attention to the balance between social order and citizens' personal freedom, the lower standard of firearms recognized by administrative law reflects its focus on the maintenance of public order, but the criminal law should pay attention to the protection of citizens' human rights, and cannot deprive citizens of normal profit-making activities because of excessive emphasis on public safety, Moreover, the identification standards for illegal possession of firearms as a criminal offense and simply extracting firearms from administrative law cannot be used to equate firearms that protect public safety in criminal law with firearms recognized by administrative law for maintaining the order of firearms management, thereby expanding the scope of application of criminal law indefinitely.
(2) Substantive interpretation of the constituent elements
As a country with written law, the law is made public in the form of a code, which is conducive to citizens making predictions about their own behavior, but only evaluating the literal meaning of the criminal law text can easily lead to the expansion of the scope of punishment. Therefore, in order to maintain social stability, in cases where executions intersect, it is necessary to make substantive interpretations of the constituent elements of administrative offenders in line with the purpose of criminal law.
The substantive interpretation of the constituent elements means, first of all, that the protection of legal interests is guided by the function of giving play to the legal interests as the objective of the interpretation of the constituent elements, so as to achieve the purpose of criminal law. Taking cases related to forged identity documents as an example, generally speaking, as long as the perpetrator commits the act of forging identity documents, the crime of forging identity documents is established. For example, in the case of Wang Moumou's forgery of resident identity cards, the defender argued that Wang's forged resident identity card was forged with his real identity and did not have the motive to engage in other illegal or criminal activities, which should be deemed to be that the circumstances were obviously minor and the harm was not great, and could not constitute a crime. However, the court held that Wang's act of forging resident identity cards violated the state's management system for resident identity cards and disrupted market public order, and rejected the defense opinion put forward by the defender that the circumstances were obviously minor and the harm was not great. However, in the case of Zhu's forged identity documents, the court held that the purpose of Zhu's hiring others to forge resident identity cards was to solve the problem that he could not prove his identity during the gap period for the replacement of new identity cards, and that Zhu forged his true identity information, and would not be unable to find the offender after committing illegal acts by using the forged documents. Similarly, the forgery of identity documents with real identity information and not motivated by other illegal and criminal activities has different rulings between the two courts because of the different understandings of the legal benefits of the protection of this crime. Article 1 of the Law on Identity Cards is to protect the legitimate rights and interests of citizens, so the management of identity cards is a means to protect citizens' rights and interests, and to prevent others from using the information on identity cards to carry out illegal and criminal acts that affect the safety of other citizens' lives. Therefore, if the perpetrator provides real identity information and does not pose a major threat to the legitimate rights and interests of others, it is not appropriate to be recognized as a crime if the rights protected by this crime are not violated.
epilogue
The theory of illegal relativity emphasizes the independence of criminal law itself, which believes that the independence of criminal law is higher than subordinate attributes, and denies the causal correlation of different jurisdictions' judgment conclusions on illegality. It emphasizes that relatively independent judgment according to the purpose of criminal law norms is more direct, clear and accurate in judgment logic than the mitigated dual judgment model of illegal monism. The theory of lawful relativity is more suitable for the legislative and judicial model of the mainland, and then provides a feasible method for the conviction model of administrative offenders. Criminal law is a guarantee law of other departments, but protection is not equal to supplement, and the independence of criminal law should be upheld, and administrative offenders should be placed under the scope of criminal law for discussion.
Bibliography:
[1] Wang Jun: "Does the Judgment of Illegality Have to Be United?" ——From the perspective of the relationship between criminal and civil entities", The Jurist, No. 5, 2013.
[2] Zhao Yunfeng, "Review and Response to the Criminalization of Administrative Violations", Political and Legal Series, No. 3, 2018.
[3] Jane Eyre: "From "Division" to "Integration" of the Relative Independence of Criminal Judgments", Sino-Foreign Law Journal No. 2, 2019.
[4] Zheng Zeshan, "The Unity of Legal Order and the Relativity of Law", Journal of Gansu University of Political Science and Law, No. 7, 2011.
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Executive producer: Zhang Yongjiang
Author: Xu Yuanyuan, 2022 Master of Law (Law) Student, Xiangtan University Law School
Editor: Xu Yuanyuan
Responsible editor: Zhou Shiqi
Reviewed: Li Lan
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