Comparative Study of Administrative Offenses: Based on the Establishment of Administrative Offenses

Author: Huang Mingru
Publisher:
Publish Date: 2005-03-01
Features: As early as the Roman law era, the concept of natural offenses and statutory offenses corresponded to each other. The distinction between the two was later believed to be identical to the difference between criminal offenses and administrative offenses. However, research on administrative offenses was only fully developed in the 20th century. This is because administrative offenses are closely related to administrative criminal law, and administrative criminal law is rooted in the modern administrative law. To achieve its administrative objectives, the execution of commands and prohibitory norms in administrative law often relies on punitive sanctions. The distinction between administrative offenses included in the administrative law penalty provisions and ordinary criminal offenses has sparked intense debate due to its relevance to the issues of decriminalization and depenalization. To this day, there is no definitive conclusion regarding the concept and nature of administrative offenses. This book is divided into four parts. It begins by examining the legislative evolution and historical context of administrative offenses, analyzes legislative examples from various countries, clarifies the position of administrative offenses in the criminal law system, and, based on this, further analyzes and compares the views on the nature of administrative offenses in academic discussions, thereby conducting a comparative study of the basic theories of administrative offenses. The nature of administrative offenses is closely linked to their legislative development. The first chapter of this book introduces the historical context of the emergence of administrative offenses. The history of administrative criminal law is always related to the scope of administrative law. The content of administrative law often changes with the evolution of government functions. Therefore, when government functions expand from merely maintaining passive order to actively taking measures within the law to pursue administrative objectives and achieve social well-being, the scope of administrative law norms tends to grow, and administrative offenses also increase accordingly. The paper discusses legislative examples and the principles of punishment for administrative offenses from an empirical standpoint. Specifically, the UK and the US do not emphasize the requirement of criminal intent in the constitution of offenses such as welfare offenses and affirm the theory of transferring corporate liability. German legislation and case law once adopted a substantive theory of the distinction between the nature of administrative and criminal offenses, but due to the emergence of intermediate types, they changed to using the degree of danger posed by the act as the standard for determining its punishability. Administrative offenses are distinguished based on the severity of the circumstances and are punished with fines or criminal penalties accordingly. A two-punishment rule and presumed liability are generally applied to administrative offenses. Japan's legislative framework for administrative criminal law is extremely broad, imposing fines or imprisonment on most administrative violations, with particularly strict penalties. Its early principles of punishment were similar to those of common law, where the entity responsible for an undertaking bears absolute liability due to transfer. Later, it shifted to a two-punishment rule and affirmed that corporate entities engaged in business can be subject to punishment, but some have provisions for presumed liability, requiring the entity to provide counter-evidence, which is essentially the same as absolute liability. Additionally, Japan has legislation that evolved from a two-punishment rule to a three-punishment rule, but the punishment of corporations still retains the concept of absolute liability. In China, the legislative framework for administrative offenses, although developed later, has already covered all aspects of social life and has a unique approach to punishment, generally without direct criminal penalties. The subjects of punishment can be both natural persons and legal entities, and the two-punishment rule for unit administrative offenses also includes penalties for directly responsible persons. The paper also elaborates on issues related to administrative legal norms. The legal sources of administrative offenses in China mainly include in administrative laws, provisions on administrative offenses in general criminal codes, and provisions on administrative offenses in separate criminal laws. The paper argues that, unless otherwise specified, the general principles of criminal law naturally apply to administrative legal norms. Blank administrative criminal law norms, such as delegation orders and local self-governing regulations, do not violate the basic spirit of the principle of legality. After defining the concept and criteria of temporary legal changes, the paper affirms the validity of delegated administrative regulations if legal changes occur after the implementation of temporary administrative criminal law. If only supplementary norms of blank administrative criminal law are changed, the supplementary norms in effect at the time of the act should still apply.
The second chapter explores the concept and classification of administrative offenses. Since administrative offenses are a foreign term, defining them requires neither complete disregard for foreign theories that can be nor complete neglect of China's legislative practices and theoretical realities. Therefore, the paper first reviews the theories on the concept of administrative offenses in Germany, Japan, and China. German scholars generally limit administrative offenses to order-violating acts with only an administrative unlawful nature that can only be punished with order penalties, adopting a narrow concept of administrative offenses. Japanese administrative law scholars focus on the broad concept of administrative penalties (including order penalties and administrative criminal law), opposing it to criminal offenses. Criminal law scholars, on the other hand, focus on the narrow concept of administrative penalties (only including administrative criminal law), opposing it to criminal offenses. Taiwanese scholars have differing views on the meaning of administrative offenses, including a dual meaning theory, a broad meaning theory, and a narrow meaning theory. As for mainland Chinese scholars, most adopt the narrow concept of criminal administrative offenses and define administrative offenses based on China's general definition of crimes. On this basis, the paper advocates for a comprehensive approach that incorporates theories from both Germany and Japan, adopting the stance of a narrow criminal administrative offense to define the concept of administrative offenses. In legislative theory, the discussion focuses on the distinction between administrative offenses and general administrative order violations. In interpretive theory, the discussion centers on the distinction between criminal offenses and administrative offenses. The legislative types of administrative offenses mainly include police offenses, fiscal and tax offenses, economic offenses, environmental offenses, traffic offenses, and other administrative offenses. The theoretical types of administrative offenses are classified differently based on different standards, such as dividing them into economic offenses, fiscal and tax offenses, environmental offenses, health offenses, labor offenses, traffic offenses, public order offenses, and other administrative offenses based on the legal interests they infringe upon; dividing them into natural person administrative offenses and unit administrative offenses, general subject administrative offenses and special subject administrative offenses based on the subject of the crime; and dividing them into blank norm administrative offenses and complete norm administrative offenses based on whether the criminal law norms of administrative offenses require supplementary administrative norms.
The third chapter examines the nature of administrative offenses. Germany and Japan have conducted more in-depth research on this issue. In Germany, there are opposing views on the qualitative and quantitative distinctions, as well as a combined theory of both qualitative and quantitative distinctions. Each theory has various arguments based on different perspectives. Under the qualitative distinction theory, there are arguments such as the right infringement theory, the legal interest infringement theory, the victim object distinction theory, the legal interest distinction theory, the constitutive element distinction theory, the cultural norm theory, and the social ethics theory. Under the quantitative distinction theory, there are arguments such as the distinction between serious and minor offenses, the gradual weakening of the essence of illegality, and the difference in the degree of danger and reprehensibility. The combined theory of qualitative and quantitative distinctions is an integration of the theories of quantitative and qualitative differences. Based on the evaluation of these theories, the paper argues that in the core area, criminal offenses and administrative offenses have a qualitative difference, while in the peripheral area, there is only a quantitative difference, which is also methodologically more appropriate. Japanese theories on the nature of administrative offenses inherit and develop from German-related theories and can be broadly divided into three categories: the affirmative distinction theory, the negative distinction theory, and the meaningless distinction theory. Due to different perspectives, there are also some variations within these categories. However, the focus is on exploring the essential differences between the two to serve as a theoretical basis for excluding the general principles of criminal law in the interpretation of administrative offenses. In China, there are four representative theories on the nature of administrative offenses: the qualitative difference theory, the quantitative difference theory, the quality-quantity difference theory, and the dual nature theory, each with its own biases. The paper further argues that the definition of the nature of administrative offenses should, in legislative theory, not solely focus on legal consequences but also consider the substantive content of the unlawful act. An act that violates regulations designed to maintain basic living order is a criminal offense, while an act that violates regulations designed to achieve specific administrative objectives is an administrative offense. The nature of administrative offenses affects the systematic position of administrative criminal law, as the punitive measures imposed on administrative offenses play a dominant role in administrative criminal law. Therefore, it seems appropriate to consider administrative criminal law as part of criminal law. The stance taken in the legislative approach to administrative offenses should be to establish general principles for general administrative offenses after formulating general administrative offense regulations, supplemented by exceptional provisions for their specific characteristics. The ultimate goal of studying administrative offenses is to offer theoretical recommendations for improving the legislative framework of administrative offenses. The fourth chapter explores this issue. First, the paper reflects on the three current legislative models in various legal systems and examines the legislative theoretical foundations determined by the nature of administrative offenses. It argues that China should formulate universal principle provisions for administrative offenses that are adapted to their specific characteristics, while the specific should adopt a decentralized legislative approach.