On the Reconstruction of the Standard for Judging the Illegality of Administrative Offence
The solution of the problem of criminalization of administrative law violations needs to return to the accurate definition between administrative law violations and criminal law violations.There is a great academic controversy about the distinguishing standards of the two types of law violations.The monistic approach,relative approach,quantity difference approach,quality-quantity difference approach,and quality difference approach,the two theories have the logical relation between the fundamental theoretical basis and the expansion of content.Restricted by the monistic approach,both the quantity difference approach and the quality-quantity difference approach cannot provide an effective distinction between the two types of law violations.The relative approach emphasizes the independence of the illegal judgment,which fits the requirement of the unity of legal order.The quality difference approach can clarify the"quality difference"relationship between the two types of law violations.Different normative purposes determine different patterns of law violations.Administrative law violations only require formal recognition,while criminal law violations require substantive recognition.The identification of administrative offense should focus on the core of"protecting legal interests",make a substantive judgment of each element of the crime,and then accurately delimit the scope of administrative law violations and criminal law violations.
administrative offensecriminal law violationadministrative law violationunity of the legal ordersubstantive judgment
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