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The principle of punishment no longer

The principle of punishment no longer

Abstract This paper argues that a rational system based on the requirements and spirit of the legislation, the administrative penalty should exist regarding the field of the principle of punishment, which means an administrative law regarding the constituent elements of the act; no penalty unless the law specifically provided that the Chief and a principal can only give a penalty. Number of complex shape and what areas should also be Lapping of Legal Provisions regarding implementation of the principle of punishment, but the main administrative penalty based on the diversity of existing types of penalties are not pure of nature, a fine rather than the validity of the principle there should be necessary exceptions. Keywords: punishment no longer the exception of administrative punishment for a directory, what is the second incident, can be fined three, the operating mechanism of a reasonable body of the principle concern has been heating up. However, theoretical research has not achieved a breakthrough. This article is intended to expand the study of this problem, hope for the practice to provide consistent rational, realistic and conditions of the research results. First, what is the issue of what is The statement said that while on the strengths and weaknesses, but the purport of roughly identical, and its basic idea is: punishment no longer the ; illegal facts of a relative. In the For the same reason more than twice the punishment. Is a deficiency that the greatest offenses, Defining the concept for the offense that the ambiguity, some scholars try to be more specific Definition. impose a penalty. The operational difficulty, some scholars were modified. Have said, the principle of the so-called punishment no longer refers to the individual, the organization of a breach of the same administrative law norms, the executive shall not further punishment. Have said, punishment no longer refers to the administration of a relative in violation of one kind of administrative law norms can only be made by an administrative agency a penalty. It contains two requirements: First, a particular offense has not punished the same facts, reasons, according to the same laws and regulations will no longer be punished; Second, the same can not be subject to punishment according to the several administrative authorities were legal norms to the same punishment. Such views might be called the violation of legal norms, including through said.  is also illegal, said the concept for the definition of the ambiguity, some scholars attempt to define the theoretical level Some scholars believe that an administrative offense. Here, Some scholars believe that the principle of punishment no longer refers to the same offense the violator shall not be based on the same facts and the same, to give more than two penalties. Here is the same offense the same facts that constitute elements of their offense is only compatible with a feature. Comprehensive summary, we can form such a view as essential conditions.  the and misleading. In contrast, elements that, though relatively abstract, but the principle is strong, can really define the issue in theory to guide practice. Unfortunately, most scholars hold such a view only briefly defined, as to what specific constituent elements, basically did not elaborate. Number of judgments in the offense, the author advocated the constituent elements as the standard, that is able to fully meet the elements of a form regarding the fact that (a violation), can fully meet the two (or two) Elements of the fact that for two things and so on. Elements of that attitude in an integrated solution with many things concerning the distinction between standard, compared to behavior, or in violation of legal norms, such as single or in part, the standard theory of the phenomenon is more scientific.  The next question is, what actions should be subject to administrative penalties Essential Elements (hereinafter referred to as illegal Elements.) In this regard, our legislation does not make uniform provisions, theorists even more mixed. The more common view is that the early, illegal Elements should be similar to the circumstances of a crime, including the four aspects, namely, the main offense, unlawful object, violations of the objective elements and subjective elements. In 1992, some scholars through the end of 1991, effectively closing a total of 223 laws,[link widoczny dla zalogowanych], administrative regulations, the contents of the administrative penalty in the summary that: illegal behavior is illegal constituent elements of the universal and basic properties; subjective fault is usually not subject to punishment essential conditions; circumstances and consequences of violations should be punished in terms of determining the significance of only a small; actors must also have the act unlawful, harmful consequences of subjective fault and the only punishment is the extreme example. Elements of law under which people come to the three criteria are: acts of violation of administrative laws and regulations; the ability to act with the main responsibility for implementation; the act is the law and regulations clearly define the administrative penalty shall be subject to sanctions. Some scholars believe that the violations should be subject to administrative penalties, and no uniform standard to determine whether illegal acts have constituted in accordance with laws, regulations or administrative rules of the specific provisions, which is an element in some provisions, some provisions are two elements Some provisions of the three or four elements. There are scholars, the law only with the main constituent elements and objective conditions to the conditions, social harm, shall be punished is the administrative offense of sexual characteristics, rather than constituents. I believe that, in general jurisprudence, for the occurrence of certain legal effects to the fact that the legal conditions necessary for the general, called In administrative law, the law is also a type of constituent elements of the concept of image, is a legal concept. In view of administrative penalties and criminal sanctions in the mainstream of modern legal concepts tend to Elements of law and the circumstances of a crime should be similar. Among them, there are four elements necessary to constitute an offense, one relative in violation of administrative laws and regulations of the act or omission; the second is the relative of the unlawful act or omission must be harmful to the society; Third, the relative is defined as the age of legal responsibility , has the responsibility under penalty of capacity, the implementation of violations of natural persons, legal persons and unincorporated organization; Fourth, the relative of the unlawful act or omission of fault-based production. Select elements constitute an offense, including violations of the intent, motive, time, place, method and means, tools, objects, results, circumstances, frequency and so on. These elements constitute the essential elements in the law, the form of a specific act should be subject to administrative penalties should also have the other subjective and objective conditions. These elements by a specific law to be provided directly or indirectly, it does not have universal significance, since only elements of the role of a particular case, it is a necessary element to add. Relatively speaking, constitute a necessary element of an offense is subject to administrative penalties for all acts must have the subjective and objective conditions. It is noteworthy that, in the law regarding the distinction between constituent elements as the standard and eventful time, must be based on the specific legislation to be judged illegal Elements. Elements and select the necessary elements of the above is only regarding the elements and many things to judge in the abstraction. Regarding the re-generation are many reasons for punishment, including fines are a lot of the issue and then their offense caused by the administrative body. For example, an administrative body in the already relative to the same penalties for violations under the premise of law for a purpose again to make a second punishment. Again, an administrative body of a relative who has made an illegal punishment, another administrative body under the jurisdiction based on the wrong person and then make the corresponding penalties. The administrative body for its re-offense penalty caused by legal principle directly contrary to punishment. Matter without penalty from pure legislative strategy and legal considerations, which caused the issue again because of Lapping of Legal Provisions is fairly typical form of punishment. Lapping of Legal Provisions refers to the same administrative violations of legislation by the administrative law section of the intricate provisions of a number of articles appeared under the constituent elements in its content with a subordinate, cross, or even completely overlapping relationship, and the Law Article often given the same, similar or different administrative body to exercise the right of administrative punishment cases. Such as women in prostitution incorrigible behavior serious enough for criminal punishment, is in contravention . From the theoretical analysis, is indeed prone to seemingly legitimate penalty may constitute another case regarding the three categories: one is a simple matter, that only one illegal substance, according to law constitute the standards should be concerned, but the behavior for special vulnerable that eventful. Imagine competing typical form, such as illegal and so on. One is a statutory matter, means two or more relative to the person committed the offense or the implementation of a two or more illegal behavior results, the form already has two or more of the illegal structure, but the law has launched its provisions matter. Business law and other typical form as usual. For example, the The third category is broken at the issue on, that's illegal according to the relative standards Elements should be eventful, but the punishment Shique to deal with the issue. Its typical form, such as illegal and other implications. If the above three cases the legal basis, administrative body is clearly not entitled to re-penalty, although the form has a strong hidden; If there is no legal basis to be determined based only on legal, of course, easily lead to disputes, and its detailed analysis will be carried out in the third part of this article. Second, regarding whether the penalty can be punished again? The answer to this is to find the most convenient law. To directly find the general principles of the basis is the Literally analysis, the article content can not be construed as concerning legislation establishes the principle of punishment, also proved this point. * Administrative Penalty Law in the starting process, the provisions in the General Part of the The statements are the parties for the same violation, the executive shall not, under the same facts and the same reason more than twice the punishment. After the specific meaning of this principle there is considerable controversy, but also because of the Low suddenly high, so there is provision of In this regard, some scholars directly to the principle of punishment and punishment regarding the legal principle of open justice principle of punishment, protection of the rights relative to the principle of the principle of combining punishment with education, the principle of functional separation be summarized as the principle of administrative penalties. However, most scholars caution, except that the punishment no longer, of course, in theory, should be established, but have a legal basis for the interpretation of literal meaning. The next question is: fine in theory, no matter whether it is a self-evident axiom?  in administrative penalties should be established regarding the principle of punishment is usually reason: the issue can not be punishment : The Punishment No Longer from the Roman Law principle of non bis in idem principle. In the Roman Republic, the court of first instance final implementation of the system, associated with this important principle is the principle of non bis in idem, which means the force of law for the decision of cases have occurred, unless otherwise provided by law, no further prosecution and treatment. This principle generally applicable to civil trials, but also applies to criminal cases. The implementation of this principle of civil procedure was intended to prevent cases of the same court on the same facts and conflicting reasons given judges; criminal cases to prevent the implementation of this principle was the same crime,[link widoczny dla zalogowanych], repeat the same facts and grounds and provide criminal sanctions for conviction. The doctrine that has a similar view: the principle of punishment regarding the criminal proceedings from the Bis in idem on Criminal procedure requires the court has determined force, will not be allowed to conduct the same acts of the new criminal procedure. From the entity that the individual can avoid this penalty by the state several times, fundamental rights have been protected; from the program, said that blocking the effect of this has to protect the accused from again become the subject of other criminal proceedings. Punishment no longer with the ne bis in idem in the concept and content is very similar, so the reason for the establishment of the two are interchangeable. Indeed, originated in Roman law ne bis in idem principle in the field of criminal procedural law has become a modern universal basic principles established in the criminal trial, even this principle in many countries there are constitutional basis. physical danger. procedure for administrative penalty the same principles must exist; even some scholars interpreted broadly, Germany and the United States by the Constitution to establish a criminal on the Moreover, the principle of non bis in idem in China's Criminal Procedure Law does not specify the criminal trial and the decision of administrative punishment in the subject, the type of sanctions, there are significant differences between procedures, so the punishment no longer whether or not the establishment of the principle is still the a need to demonstrate the problem. I believe that, I can safely assume that the field of administrative penalties should exist regarding the principle of punishment, but also indispensable to carefully verify the work. From the legal point that the punishment no longer exists following main reasons: first, the administrative law needs a stable life. The realization of substantial justice is certainly one of the values of administrative punishment, but this is not the absolute value of the first value. To the relative law on the entity to sanctions and people continue to open the penalty procedures law will inevitably lead to people on the loss of predictability, leading to the fear of life and stability of administrative law, the state decided to lead the public to lose respect for authority and obedience, so , regarding the end of the principle of punishment procedures in a timely manner there is very positive. Second, the proportion of price and requirements. Based on civil liberty and human dignity of personality development, the relative who has been on illegal by the state the equivalent of penalties for individuals to pay for their own mistakes have been, from the principles and balance function on the starting price, the state should not be punished again to start the program, or individual shall be the object of state power, fish, modern certainty of the rule of law to the ravages of human rights respected. Third, faith and trust protection needs. The field of good faith was originally a private moral standards, it formed the majority of subjective and objective good faith basis, in the interests of the parties to play an equitable role in the imbalance. People and countries is essentially a contractual relationship, so the principle of good faith exists in the field of administrative law is also room for the principle of punishment is really the issue that spirit. In addition, the relative who has been subject to administrative punishment will not believe the country will no longer be prosecuted for the same offense is still a human, looking, for people born in this country, the public is so pure, natural look forward to actually guarantee that the trust of civilized nations bound attitude.  Although the above argument can not find the direct legal basis, but the Administrative Punishment Law on Administrative Punishment, legal principles, the principle of open justice, the principle of combining punishment with education, regarding the rules no longer apply to the penalty provisions are reflected from their point of view does not matter then fine spirit. Cheng Hao legislation was controversial, some scholars have concluded: requirements under the system of punishment no longer simple conditions are not ripe, it is generally considered an administrative reform issues. But the principle of punishment regarding the Administrative Punishment Law should be reflected, so the most prominent of law enforcement issues and fines provides for the issue is no longer fine. The historical record tells us that legislators hope that the voices of the provisions of punishment no longer all too clear, but suffer from institutional limitations, of necessity, produce a Beyond that date back, our Constitution on basic civil rights, in particular the right to human dignity and freedom of the provisions are established regarding the principle of punishment under the Constitution.  It should be noted that the above also includes legal confirmation regarding the existence of the principle of punishment reasonable exceptions. First of all, the Criminal procedure and practice of suing in Idem there are exceptions, retrial system set up in order to better balance method is clearly live in peace and substantial justice of the conflict. Second, because the court is the only the judge, it is relatively easy to implement the integrated technology regarding the use of the principle of punishment; administrative penalty is different between the different administrative body administrative tasks, in the case of competing regulations implementing the principle of punishment no longer easy to obstruct the main rooms of different administrative function of the full realization of the sanctions. To overcome such defects, the appropriate penalties for the second time allows it is necessary. Third, the method stability, trust protection, good faith, the proportion of the value of such laws is not the highest absolute value, these values and other justice, such as the value of real conflict, the interests must be measurable, while other higher priority value, the existence of matter then of course the penalty is reasonable. Fourth, the current set of legislation is not part of pure type of administrative punishment, and some Punishment Type ordered to cease except as to the purpose of sanctions, but also both the offender to continue to prevent illegal and other functions, the implementation of punishment no longer may sometimes hinder the realization of such a sanction function. Fifth, in the case of competing rules, Regardless of Penalty Act, Violated several laws, the maximum fines in accordance with the legal punishment. However, other laws or regulations from the penalty still properly advertised. administrative obligations, or conduct involving a number of charges, but should be severally punished individual punishment. a punishment. In particular, the meaning of the definition includes the following layers: (1) consistent with the behavior of constituent elements of a law on penalties after the establishment of a relative, any administrative body (including the original administrative body, the same below) shall not relative were further penalties (including supplementary punishment). even if the original penalty is an invalid administrative act, it must be approved by the statutory procedures only after denying its effectiveness relative to re-punishment, unless specifically otherwise provided by law; (2) a penalty in principle, can only give a penalty, unless specifically otherwise provided by law; (3) As an exception, have been a penalty, his administration is still the main legal provisions in accordance with the nature of different penalties for different types of species and even within reasonable limits the same as the first secondary punishment. Third,[link widoczny dla zalogowanych], the reasonable operation of the mechanism in an academic, some scholars refuse to identify meat lady by between the number of their specific circumstances can be engaged in both form and Lapping of Legal Provisions to be looked at. (a) the number of forms and what the operating rules of punishment before the demonstration, the relative met the Elements of an administrative law regarding the behavior. again revealing the meaning of , the relative number of administrative law met the constituent elements of the act, of course (at a few) things. Here, administrative law is to determine the offense constitutes a singular and plural elements of the standard. However, this theoretical criteria and the issue with the eventful specific inference are two different dimensions. emphasized Elements and eventful as the distinguishing criteria regarding the integrity on the one hand, on the other hand, we must focus on specific aspects of the illegal constituent elements, which in turn depends on on specific elements of law must have the elements of the composition. These factors include behavioral, subject, sin, the object, the results. According to Crime Theory, the typical difference between the issue and many things not difficult, the difficulty lies: in practice there regarding both the atypical, and atypical much, but according to legislation, the spirit of legislation, administration identified the issue should still be treated as a form. of such form and confirmation of a correct understanding of the issue is directly related to the principle of punishment There is reasonable. as to the nature and its treatment as a standard, the typical number of things can be divided into three categories, namely a simple matter, legal matter and the issue at the break. 1. a simple matter. simply is not a simple matter, the essential meaning is essentially only a form consistent with the behavior of elements, but certain features of the act, easily mistaken for many things. continuing offense is simply a typical form of matter. free law is a continuing offense case in point. the illegal acts of persons from illegally restricting the personal freedom, has been far to restore personal freedom, which has a continuous and uninterrupted time against the characteristics of the object identity. The behavior seems to time segment can be constituted as a standard consistent with the same number of constituent elements of the offense. However, the subjective point of view, this law out of a fault, although at different stages have different motor performance, but the continuity of behavior, in essence, is the issue rather than many things. 2. statutory matter. that would have found a number of illegal Elements of many things, for some particular reason, the law has launched its provisions regarding the form. Continuous statutory law regarding the typical form. Continuous offense is repeated over an extended period to implement the same kind of administrative violations of the situation. Broadly speaking, a continuous offense, including in some administrative law for industry or the habit of breaking the law. such as long term rent pornographic videos as means of livelihood are still not a crime The law is often typical of the illegal industry. Alone, each time such acts were pornographic video rental behavior may constitute a separate offense but is the same species because of their illegal conduct, so the law still provides for the matter rather than many things were similar punishment. such as Each offense must be implemented in form of the same offense. If a law for a single name, its relatively easy identification of continuous illegal, whether the difficulty is selective for the same offense against the law. For example, under the (August 5, 1987 the State Council) and Article 19 Article 22, individual businesses producing or selling fake goods, industrial and commercial administration authorities were given different circumstances according to warnings, fines, confiscation of illicit proceeds, and ordered to stop business, withholding or revocation of business license (may impose) a punishment. this provision in the act of production or sale of fake goods is the selectivity of the law. I believe that such a law before the law in preparation for the latter, and finally reached causal consistency with the purpose of various illegal, it is a continuous offense, administrative body should be based on the name of the illegal types of illegal use of selective synthesis of punishment for offenders, rather than separately under the law to punish offenders. encountered several administrative period were investigated by law subject, in principle, should be closest to the final purpose of the Integrated investigate violations punished. as part of the phase of the law have been punished, other administrative body that can no longer be considered punishment. 3. Convicting the issue. actually more task, but the punishment is in order regarding the treatment. implicated in breaking the law is the issue at one of the typical form. implicated in illegal means relative to the implementation of an illegal purpose, but the means or results constitute the other forms of case law . For example, the use of false invoices for tax evasion, tax evasion constitute the offense of tax evasion, tax evasion and illegal methods constitute instruments, both of law is implicated in the law. implicated in illegal features are: the existence of several illegal acts found illegal Elements; number an illegal purpose or among has the means and the relationship between cause and effect and constitute the organic whole; actors seek only an illegal intent, but he will conduct a number of reasons were identified for the purpose or the means or result; direct implementation of the unlawful purpose is the main act, to create conditions for the realization of this goal is aided or behavior. In the field of administrative law, the law involved in the handling of non-uniform provisions of the law, the provisions of existing small and very uniform; theory researchers The major problem seems to not care; practice in accordance with the legislation because of the lack of uniform guidelines and theoretical results for the array is clearly their lack of generally accepted guidelines. from the concept that,[link widoczny dla zalogowanych], according to the principle of rationality and trust requirements of the principle of treatment should be involved in illegal follows from the principle of re-aggravating something. This problem lies in: (1) when the administrative body responsible substantial increase in punishment. It is not illegal to be involved in the review of a law; if so, then the law must be further implicated in the main, from the behavior classification, and further compare the two different types of penalties the severity of offense; finally possible to transfer the case For example, after the first set over, or after a fixed ratio), the severity of the different nature of how they compare to the punishment? if compared to standard? (3) consider it necessary to re-use of different kinds of properties on the relative penalty shall be punished, can be done? for the difficult, the author advocates involved in the illegal sanctions imposed on the following rules should be followed: unless the law expressly provided, (1) implicated in illegal body by the same administrative investigation should proceed from a heavy thing punished severely principle, unless it is necessary the use of Common rules of punishment; (3) implicated in the illegal Elements found illegal [1] [2] Next
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