Selected Papers of The Jurist (法学家), Volume 3
- Renmin Chinese Law Review: Selected Papers of The Jurist
Edited by Jichun Shi
Chapter 6: The legal attributes and liability of administrative crimes including reconstruction of the mechanism of criminalization
AbstractAs the backing and guarantee of other departmental laws, the criminal law is not only formally constricted by the protective rules of those foundational laws that it safeguards, but also substantially constricted by those regulative rules it aims to protect, together with the protective rules. Regarding the protective rules, the criminal law plays a supplementary or protective role, while, as regarding the regulative rules, it plays a subordinate or secondary role. Thus, the combination of criminal character determined by foundational laws and the quantitative criteria for imposing penalties determined by the criminal law is not only the identification criteria of all crimes (including natural crimes and administrative crimes), but also the reflection of the relationship between criminal law and the foundational laws in the determination of crimes (i.e. the criminal law should be subject to foundational laws it safeguards in the determination of criminal character, while, in the determination of the quantitative criteria for imposing penalties, it is independent). Based on the above analysis, to realize the legal liability of administrative crimes, the principle of ‘administrative liability takes priority’ in legal procedures and the principle of ‘conjunctive fulfillment’ should be followed as necessary with respect to the substantive rules of law. In other words, where there is a concurrence between the forms of prior-applied administrative liability and the forms of after-applied criminal liability, the principle of ‘commuting the common functions while reserving the differences’ should be followed – the forms of liabilities with common functions should be deduced, and the forms of liabilities with different functions should be executed.
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