[Abstract]"Public Security Management Punishment Law" and "criminal law" is the adjustment of national society, two of the maintenance of social stability, but also limit the public power, protecting human rights of the two charter. In the actual operation of the process, the illegal criminal behavior of some provisions of the criminal law and Public Security Administration Punishment Law of phase coincidence problem, "Public Security Management Punishment Law" and "criminal law" law conflicts between different legal departments, the lapping of legal provisions, should adopt suitable principle different from the criminal law within the law concurrence in solving this problem. Substantive interpretation of criminal law, the priority for "Public Security Management Punishment Law", only when the social harmfulness behavior has reached should be punished, "Public Security Management Punishment Law" has been unable to effectively control, to use criminal law.

[Key word.The Public Security Management Punishment LawAdministrative lawThe criminal lawConflicts of lawsJoin

March 1, 2006 implementation of the "people's Republic of China Public Security Management Punishment Law" (hereinafter referred to as the "Public Security Management Punishment Law") is divided into general principles, types and application of punishment, in violation of Public Security Management Act and punishment, punishment procedures, supervision of law enforcement, annex, a total of 6 chapters 119. With the pastRegulations on administrative penalties for public securityCompared with the 5 chapter, from 45 to 6 Chapter 119, illegal punishment from 73 to 238, the newThe Public Security Management Punishment LawConsistent with the content of governing for the people, law enforcement for the people, the protection of human rights principles, practical, strong operability, strengthen the management of social security under the new situation, to maintain social stability, safeguard public safety, to resolve social contradictions, will have a positive role in building a harmonious society. After the law passed, some scholars think, "this is a better method to deal with the cohesion and the constitution, criminal law, criminal procedure law and other department law, this is not only conducive to the smooth implementation of the law, prevent due to conflicting embarrassing situation, but also to make an example for future legislation which he activities"[1]. But the actual operation of the process, there are some "The criminal law"The problem of conflict rules, this paper intends to" Public Security Management Punishment Law "and" criminal law "makes a preliminary analysis of cohesion.

A,"Public Security Management Punishment Law" and "criminal law" conflicts of laws

The relevant provisions in the "Public Security Management Punishment Law" and "criminal law", "most illegal type and type of crime stipulated by the public security management punishment law" is similar, but there are some "poor quality"[2], a critical point between illegal acts and crimes more clearly, the critical point is mainly through a number of differences, the same type of behavior is suitable "Public Security Management Punishment Law", "criminal law" still apply, investigators have operational standards. However, in judicial practice, the legal phenomena often appear illegal criminal behavior of some "criminal law" and "Regulations of the public security management punishment law" phase coincidence, such as China's "criminal law" articleArticle three hundred and fifty-nineThe first paragraph: "lure, shelter, introducing others into prostitution, is less than five years imprisonment, criminal detention or control, and shall also be fined; if the circumstances are serious, department for more than five years in prison, fined." "Criminal law" the first paragraph of article 353rd: "lure, instigate, deceiving others into taking or injecting drugs, is less than three years imprisonment, criminal detention or control, and shall also be fined; if the circumstances are serious, department for more than three years of less than seven years imprisonment, fined." Here the "criminal law" has explicitly ruled out "lure, shelter, introducing others into prostitution" and "lure, instigate, deceive others smoking, injecting drug users" behavior of the general illegality. However, "Public Security Management Punishment Law" sixty-seventh article stipulates that: "the lure, shelter, introducing others into prostitution, department for more than ten days to fifteen days detention, and may concurrently impose a fine of five thousand yuan; if the circumstances are relatively minor, five days detention or a fine of five hundred yuan of the following." seventy-third provisions: "instigation, lure, deceiving others into taking or injecting drugs, department for more than ten days to fifteen days detention, a fine of five hundred yuan of above two thousand yuan of the following." "Public Security Management Punishment Law" here ", shelter, admitted the lure the others into prostitution" and "lure, instigate, deceive others smoking, injecting drug users" behavior of the general illegality, two are in contradiction. The provisions of the two law, the illegal or criminal acts stated completely consistent. Check the Supreme People's Court on the NPC Standing Committee "Decision on drug controlStanding Committee of National People's Congress ","The decision on the non prostitution"And", 1997The criminal law"On the" lure, shelter, introducing others into prostitution "," lure, instigate, deceive others smoking, injecting drugs "has no clear judicial interpretation. In addition, there are a lot of similar provisions, such as the "criminal law" the 364th paragraph second: "the organization of movies, video and other pornographic audio-video products, is less than three years imprisonment, criminal detention or control, and shall also be fined; if the circumstances are serious, department for more than three years of less than ten years imprisonment, fined." Article 365th stipulates: "the organization for pornographic performances, is less than three years imprisonment, criminal detention or control, and shall also be fined; if the circumstances are serious, department for more than three years of less than ten years imprisonment, fined." There is also explicitly ruled out organization play movies, video and other pornographic audio-visual products and organizations pornographic performances of general illegal behavior. However, "Public Security Management Punishment Law" article sixty-ninth but admits that the organization play general illegal pornographic audio-visual and organizations pornographic performances, contradictory law, public security organs, procuratorate, court, resulting in the practice of understanding not unified, often differ. These conflicting law, public security organs, procuratorate, court, resulting in the practice of understanding not unified, often differ. This behavior is in accordance with the handling a case personnelThe criminal lawOrThe Public Security Management Punishment LawA determination is made and not know what course to take. Like the "Public Security Management Punishment Law" and "criminal law" prescribes the identical or substantially the same, but the nature and punishment on the behavior was different, it belongs to what the nature of the problem, how to solve, we should seriously study the issue.

Two, administrative law andThe criminal lawBetween the poor convergence

The famous French Enlightenment scholar Rousseau pointed out:"The criminal lawIn essence it is a special law, rather than all other legal sanction power."[3]But this does not mean that no other sanctions of the law itself, such as tort law is the civil law power,The administrative punishment lawIs the administrative law, andThe criminal lawTogether form the law force. Show a certain level sanction law, the illegal acts are interconnected, so the legal sanctions should also be considered for integration. Starting from the angle of criminal policy in broad sense,The criminal lawAnd the law of torts,The administrative punishment lawCoordinate with each other, all together to build dam, laws against crime, realize the purpose of crime prevention,The criminal lawJust a last resort against crime.[4]The strict criminal law net, also experienced the strict law to strict procedural law and to evolution by means of extra judicial administrative measures to strict criminal law.[5]Explores the use of outside the penalty measures against crime in the bud when has become an importantThe criminal lawIdea.[6]And in a variety of power, many kinds of methods to solve a social problem, not only requires law must be unified coordination and interaction (such as the coordination of criminal, administrative, civil law and echo), and system design must join each other and learn from each other (such as cohesion of criminal litigation, administrative litigation and civil litigation procedure and reference formal procedure and the simple procedure, the interactive application). Especially in the administrative and law belong to public law categoryThe criminal law, there are many cross each other, learn from each other and mutually dependent content between the two. Administrative law andThe criminal lawShould keep correspondence between, coordination, cohesion, but two of them in the practice there are disjointed, interruption, repetition and even conflicting, ignoreThe criminal lawCommon features between the administrative law and the inner link.

As the administrative law and theThe criminal lawThe object of study, the administrative illegal and criminal illegality of the distinction, isThe criminal lawThe theory of the last debate. Especially in our country the crime qualitative and quantitative legislation pattern causes the administrative illegal and criminal illegality there exists overlap, fuzzy boundaries, legislative term meaning not unified phenomenon. How to correctly distinguish the administrative illegal and criminal illegality boundaries? Based on the theory of where? The social life of its own vivid and variability in the line is not administrative illegal and criminal illegality is fixed, but dynamic, can be transformed into each other, the crime with the non crime mainly focus on the administrative illegal and criminal illegality of mutual transformation. Administrative law andThe criminal lawInteraction in the adjustment of the object is very frequent, related to theThe criminal lawDelimitation of crime circle. In order to strengthen massLifeHealth and safety, some countries and regions will many of the original belonging to the administrative illegal Abstract dangerous behavior, such as the violation of the traffic safety, health behavior penalties penalties to criminal category; and to introduce, prostitution, gambling and other non victim crime, fromThe criminal lawThe restraining position, appropriate decriminalized. Strict criminal law strict design intention crime, will that really have serious social harmfulness and non useThe criminal lawMeans of adjusting is not enough to effectively curb the illegal act, as far as possible given the crime, the punishment regulation. Criminal illegality and administrative illegal although there are "concept" difference, but because of its illegal, crime and social harm are hierarchical, so the two have a quantity of flow process in the "type", that is illegal, crime and social harm, respectively, have the cent of size, a from big to small order of ranks. Which contains the necessity of dynamic study of things, is regarded as a movement of change and development state, and placed into the evolution of motion, change and development to observe, to explore the history, present and future. If the tight net of justice to confined within each department law, legislators just pay attention to perfect administrative or criminal law legal system and the lack of macro perspective, ignoring the coordination and connection between the French, then in the grey area adjacent to the administrative law and criminal law inevitable confusion. On the administrative law and theThe criminal lawDevoted to the study of interaction, coordination, cohesion of legislation, scientific design of the boundaries between criminal illegality and administrative law, to reasonably controlThe criminal lawThe breadth and depth of involvement in social life, is undoubtedly be of great advantage.

Properties and characteristics of three, acts violating the administration of public security

In foreign countries, especially in European countries such as GermanyThe criminal lawIn the definition of crime, there is only qualitative factors and does not contain the number and seriousness of quantitative factors, the administrativeThe criminal lawIn the field of administrative law, consistent with the criminal policy and culture. However, China's situation is different, our country criminal law thirteenth stipulation: "all the harm national sovereignty, territorial integrity and security, secession, to subvert the people's democratic dictatorship and overthrow the socialist system, undermine social and economic order, violations of property all state property or collective, infringement of citizens private property, infringement of citizens' personal rights, democratic rights and other rights, and other acts harmful to society, in accordance with the law shall be subject to criminal punishment, is a crime, but circumstances are obviously minor and the harm is not great, not deemed a crime." "Only those who seriously harmful behavior as to deal with crime, harm is not serious actions by other legal process."[7]From theThe criminal lawThe concept of crime in perspective, ChinaThe criminal lawThirteenth "proviso" provisions "plot remarkable slight harm not big, not be considered a crime", its positive meaning is harmful to the society to a certain extent is a crime, so clearly the quantitative factors into the general concept of crime.

The legislation and theory of our administrative law point of view, who should, in general administrative illegal administrative penalties are prescribed in "The Public Security Management Punishment Law"And other administrative regulations, and the theory is not called" administrativeThe criminal law", instead it is recognized as belonging to the category of administrative law. "Public Security Management Punishment Law" the second stipulation: "disturbing public order, endangers public security, infringe the personal rights, property rights, breach of social management, which is harmful to the society, in accordance with the" Regulations of the people's Republic of China "s criminal law constitutes a crime, shall be investigated for criminal responsibility according to law; not serious enough for criminal punishment, by the public security organs the public security administration punishment in accordance with the provisions of this law." According to the provisions of this article, acts violating the administration of public security refers to various kinds of disturbing social order, endangers public security, infringe the personal rights, property rights, breach of social management, does not constitute a crime behavior. Its characteristic is:

First, acts violating the administration of public security is illegal administrative laws and regulations, in violation of public security management aspects of the. First of all, acts violating the administration of public security is a violation of administrative law, rules of behavior, which is a feature of the difference in crime. From the various provisions of the public security management punishment law specific to violate the administration of public security behavior, the object infringed, it is legal, regulations of Public Security Administration Punishment Law and other law enforcement management aspects of the social relations, mainly is the normal social order, public security, citizens' rights of the person, the right of public and private property several aspects. The object violated these aspects and the provisions of the criminal law of the corresponding some kinds of crimes, these aspects is the criminal law to protect the social relations, the nature of the same. Difference is that these types of crime in criminal law, violation of the corresponding social relations to the extent of acts violating the administration of public security seriously in the public security management punishment law stipulated, against the corresponding degree of social relations. For example, the public security management punishment law assault or intentionally hurt others, acts violating the administration of public security, theft, fraud, plunder of public or private property infringement of personal rights, private property rights, these behaviors are stipulated in the criminal law, but the degree of harm is different. Provisions of the public security management punishment law corresponding to these behaviors, but the amount is small "petty" behavior. Secondly, acts violating the administration of public security are violations of laws, regulations in violation of public security management, not all violations of the above social behavior belongs to the acts violating the administration of public security; not all violations of laws and regulations, the public security organ as illegal departments belong to the acts violating the administration of public security. For example, civil tort behavior will cause others to bodily injury, property damage, but in the nature of civil illegal acts, not to the acts violating the administration of public security, the actor should bear corresponding civil damage compensation liability, not to the public security administration punishment; illegal acts in violation of the product quality law, consumer protection law, also may infringe the personal rights, property rights of others, but does not belong to the acts violating the administration of public security. Security management is only one aspect of the public security organ in many administrative work, such as violations of the law on road traffic safety, fire protection law behavior, although the matters relating to the management of public security organs, also on the public security, civil rights, the right of public and private property damage caused, need to give the corresponding administrative punishment by the public security organs, but does not belong to the acts violating the administration of public security. Laws and regulations, the public security management is limited to laws, regulations and those of the social order is directly related to the.

Second, have certain social harmfulness acts violating the administration of public security. The law is to protect the specific benefits for the purpose, basic legal way to protect specific interest is to give illegal punitive consequences, namely the violator shall bear corresponding legal liabilities. Social harmfulness behavior should be the substantive standards to determine whether a behavior is illegal, although some behavior on other people's personal, property damage, but it may not have social harmfulness, does not belong to the illegal act. For example, self-defense, emergency hedge behavior, although in the form of personal injury, property damage, but the essence of the behavior of justifiable defense, is in order to protect their legitimate rights and interests of the unlawful infringement, the implementation of the illegal the offender's legitimate fight back; act of rescue is to the preservation of a more important interest, although at the expense of others less legitimate interests, but in general is still beneficial social behavior, which is not forbidden by law. Therefore, is harmful to the society, namely the violation of laws and regulations, the public security management punishment law of public security management of the protection of specific interests, is an essential feature of acts violating the administration of public security. On the other hand, the social harmfulness acts violating the administration of public security is a certain limited in extent. Just violated the law, regulations of the administration of public security protection acts violating the administration of public security interests, belonging to an illegal behavior in nature, therefore its social harmfulness is limited, more than this limit, will become a crime.

Third, have to public security management punishment of acts violating the administration of public security. Any violations of the law must bear the corresponding legal consequences, but the illegal behavior of different nature should bear the legal consequences are different: civil violations should bear civil liability, such as compensation for the losses, the returning of the original object, such as an apology; criminal violations should bear criminal responsibility, if sentenced to prison, fines, deprivation of political right; but the acts violating the administration of public security shall assume the administrative responsibility, specifically to administrative penalties for public security, such as a warning, fines, detention. If the behavior of plot is very slight, should not be the public security management punishment, then it does not belong to the acts violating the administration of public security; if the act is serious, should be a criminal penalty, then we have is a crime, but not the acts violating the administration of public security.

Three the above characteristics of acts violating the administration of public security is the unity that has internal relations, social harmfulness degree is the acts violating the administration of public security the most basic attribute, is the basis of violation of public security management laws and regulations, but also the basis should be the public security management punishment; violation of public security management laws and regulations, social harmfulness the legal performance acts violating the administration of public security, but also a legal basis for acts violating the administration of public security shall be the public security management punishment; shall be the public security management punishment is illegal and the social harmfulness behavior of legal consequences. Therefore, "Public Security Management Punishment Law" stipulates that the second "not serious enough for criminal punishment" includes three kinds of situations: one is the "PRC Criminal Law" (hereinafter referred to as the "criminal law" the provisions of article thirteenth) harm the social behavior of the plot remarkable slight harm is little, do not think it is a crime; two is the "criminal law" the provisions of article thirty-seventh of the crime are minor and do not require punishment, can be exempted from criminal punishment; three is the "criminal law" the seventeenth paragraph fourth of the full 14 years of age under 16 years of age and are not subject to criminal punishment. Thus, "criminal law" and "Public Security Management Punishment Law", both from the contents of speaking is similar, but the extent, but their essence is different: in accordance with the "criminal law" the provisions of the crime, and should be investigated for criminal responsibility according to law, for "criminal law"; the circumstances are not serious enough for criminal punishment, by the public security organs in accordance with the "Public Security Management Punishment Law" to the public security administration punishment. Therefore, between the two, one is the "law", one is "administrative" problem. "Criminal law" is the subject of law enforcement of the people's court, and the "Public Security Management Punishment Law" punishment is the main public security organs. However, the control of criminal law, it is not difficult to find, the vast majority of "behavior" has stipulated in the "criminal law". In our country, although one implementation of the criminal law prohibited, but according to the criminal law provisions, if the "plot remarkable slight harm not big, not be considered a crime", is still as violations. In the criminal law of our country many acts constitute a crime are required to have "serious", "serious", "serious consequences" and other provisions; for property violations, disturbing social order behavior, constitute a crime also requires the amount or the illegal income reaches a certain standard; otherwise, not as a crime, just as illegal behavior, given administrative punishment by the administrative organ for law enforcement.

"Criminal law" is the "security law" Public Security Management Punishment Law, only when the "Public Security Management Punishment Law" can not effectively adjusting social relations, to apply the "criminal law". The basic relationship between "Public Security Management Punishment Law" and "criminal law" the relatively simple. The common aim of the two is for the maintenance of public order, public security, the protection of citizens, legal persons and other organizations of the legitimate rights and interests, object two sanctions are harmful to society behavior. The fundamental difference between the two is the "Public Security Management Punishment Law" is to have not yet reached the illegal crime degree of sanctions, the sanctions for unlawful acts, and "criminal law" applies to harm constitute a crime. It is because of the difference of this fundamental, two also in sanctions, subject, procedure, also produced a series of significant difference.

Four, "Public Security Management Punishment Law" and "criminal law" conflicts of laws cohesion

Overlap of articles of law, also called the overlap of law or legal concurrence, refers to a behavior consistent with the provisions of a number of legal provisions of the constitutive elements of crime, since the number of legal provisions exist coincidence or containment relationship, which can only apply to one of the law and to the exclusion of other legal provisions of the situation. Criminal law of overlap of articles of law, generally occur between the provisions of the criminal law provisions, or between criminal law and separate criminal law provisions. For example: the relationship between article 140th of the criminal law of the production, sales and shoddy products crimes and criminal law 141st to 148th production, sale of shoddy goods crime belongs to the overlap of articles of law. Criminal law of overlap of articles of law, no matter for which a law, the act has constituted a crime. According to the theory of criminal law, to solve the problem of overlap of articles of law principles are: (1) special law is superior to common law principles. The principle is that when an act which violates the provisions of a number of legal provisions, the provisions shall apply to the special law first. For example, the staff of state organs breach of privilege constitute a crime, shall be applicable provisions of article 397th of the criminal law of the crime of breach of privilege; and judicial personnel the behavior, although also violated the criminal law 397th stipulation, but the provisions shall apply article 399th of the criminal law of the crime. (2) weight method is superior to the light of the principle of the law of. The principle is that when an act which violates the provisions of a number of legal provisions, should first law applicable punishment heavier. For example: Article 140th of the criminal law of producing and selling fake or substandard products, the maximum punishment of life imprisonment, and article 148th of the criminal law crime of cosmetics production, sales do not meet the health standards of the maximum punishment of three years in prison, when the suspect's act violates the provisions of the criminal law article 140th and article 148th, should first 140th applies the heavier punishment. The specific application of these two principles are sometimes in conflict, but eventually basis weight method is better than the light law principles to deal with the problem of overlap of articles of law, criminal law and solve the problem of articles.

"Public Security Management Punishment Law" and "criminal law" law conflicts between different legal departments, the overlap of articles of law, therefore, should adopt suitable principle different from the criminal law within the overlap of articles of law in solving this problem. Not a parallel relationship between criminal law and other branches of law, "criminal law" and "Public Security Management Punishment Law" in the application can not be simply based on its legal effect level to make the choice between them, is a department law and security law relationship. As China's famous criminal jurist professor Zhang Mingkai put forward in the early ten years ago: "the legal system in China is to the constitution as a guide, to Department of law as the backbone, to criminal law as the whole content structure security is rigorous, external coordination, mutual organic connection of legal norms. The criminal law in the legal system is not the law, nor the law department, but security law, it is the status of criminal law in legal system. Therefore, the criminal law has the security, complementary and modesty, which can use other legal process, with other legal process, only in the other laws can not handle or invalid, with only the criminal treatment."[8]So, in the overlap of articles of law and no clear absence of judicial interpretation, judicial personnel should be based on the nature of crime -- should be subject to punishment against the interests of the law or dangerous, and combined with the "criminal law" article thirteenth "plot remarkable slight, harmless, do not think it is a crime" provision, substantive interpretation of criminal law, the priority for "Public Security Management Punishment Law", only when the social harmfulness behavior has reached should be punished, "Public Security Management Punishment Law" has been unable to effectively control, to use criminal law. As China's famous criminal jurist professor Zhang Mingkai points out, "the theory of criminal law should be based on the essence of rationality to explain the provisions of the criminal law of the constitution, which can only be investigated for criminal responsibility behavior explanation for the crime, will not achieve this level of interpretation for acts violating the Administration of public security. If only pay attention to the legal form of the so called, rather than on the substance behind the legal form, will inevitably lead to illegal search, will not be investigated for criminal responsibility of residential behavior illegally invade the interpretation of criminal behavior. Only the provisions of the criminal law to make the explanation of the essence, the constitution of crime, that reflect the essential illegitimacy, to reasonably limit the scope of punishment."

Discretion of judicial personnel is only one aspect of the problem, for the unification of law enforcement standards, we think that we should to solve the criminal law and Public Security Administration Punishment Law concurrence of the judicial interpretation of the provisions or administrative. (1) made by the Supreme People's Court judicial interpretation, who cannot distinguish between criminal law and public security administration punishment law case, make crime and non crime of standard. For example, in the circumstances of the crime, the crime amount, the harm result in behavior, subjective malignant degree, make specific provisions, those who reach a certain standard, the crime, on the other hand, it does not constitute a crime. (2) by the Supreme People's Procuratorate, the Ministry of public security criminal standard of obstructing the administration of public order crime provisions, those unable to distinguish between illegal and criminal prosecution standard, formulate specific. Those who reach the standards of prosecution, the public security organ at the conclusion of the investigation will be transferred to the procuratorial organs prosecution; those who have not reached the standards of prosecution discretion, by the public security organ.