The criminal law

One, the concept of the criminal law

Time effect of criminal law

1 of the criminal law effect of time

(1) effective date of the criminal law in general there are two types: one is in force from the date of publication of the criminal law; two is released after the criminal law stipulated by law for a period of time to take effect.

(2) the failure time of the criminal law also has two ways: one is declared invalid. The state legislature to make clear some legal failure; two is the natural failure. Because the old law enforcement for the content of the same, or because the legislative conditions of the original special has disappeared, the old law to failure.

2 retroactivity of criminal law

Retroactivity of Criminal Law refers to the criminal law after the entry into force of the new, without trial or sentence has not yet been determined before the entry into force of the behavior are applicable problem. If applicable, the law have retroactive effect, otherwise there is no retroactive effect. About the retroactivity of criminal law, our country is taken from the doctrine of.

Two, crime

1 the justifiable defense

Justifiable defence must meet the following conditions:

(1) defense behavior must be to make the country, the public interest, the person himself or herself or others, property and other legitimate rights, rights and the implementation of the. If the defense purpose is to protect the illegal profits, it is an illegal act constitutes a crime, shall be investigated for criminal responsibility.

(2) for the defense must be unlawful infringement is harmful to the society. "Behavior" unlawful infringement, including criminal activities, including general illegal behavior, its fundamental purpose is to prevent unlawful infringement.

(3) defense must aim at being violated. The so-called "ongoing illegal violations", refers to unlawful infringement exists in the objective, not subjective imagination and speculation; two means the infringement has begun and has not yet ended.

(4) defense must aim at illegal violate oneself, not to not carry out unlawful infringement of third party.

(5) the justifiable defense can not obviously exceeds the limits of necessity, defense exceeds the limits of necessity and causes serious damage, defensive, shall bear criminal responsibility, but should be reduced or exempted from punishment.

In addition, for serious violent crimes endangering personal safety is carried out, the provisions of the criminal law can take non excessive defense. The provisions of the criminal law, the ongoing assault, murder, robbery, rape, kidnapping and other serious violent crimes endangering personal safety, to take defensive actions, against illegal caused casualties, it is not undue defence, and he shall not bear criminal responsibility.

2 emergency

Emergency must meet the following conditions:

(1) must be taken in order to the country, the public interest, I and others, property and other legitimate rights from the dangers of what is happening.

(2) must be taken for the danger of what is happening.

(3) must be taken in have no alternative against one's will case, the behavior could not find any other method to eliminate risk, no emergency measures have been taken.

(4) the emergency can not exceed the limits of necessity cause undue damage.

3 common crime

(1) the form of common crime

Form of the common crime is the combination between structure refers to more than two people of common crime or offender. The close degree has no binding form of organization or common crime as the standard, the common crime can be divided into the form of common crime and crime group. Joint offence refers to two persons for the implementation of specific crime and ex ante or temporary with no special organization form of the joint crimes. A criminal group is more than three persons for the common crime is fixedly consisted of organized crime.

(2) type of joint crime

In the common crime, the status and function of each joint offender in the crime activities in the different risk degree, its harm to the society and people also each are not identical, therefore, everyone should bear criminal responsibility should also be different. The criminal law of our country criminal into principal, accomplice, accomplice under duress and abettor.

Unit crime penalty specifically:

The unit shall be sentenced to a fine;

Person in charge of the direct responsible and other directly responsible personnel penalty, including all sentenced to penalty method can be applied to natural person crime;

Provisions of the criminal law and other laws provide otherwise, in accordance with the provisions.

In three, the penalty

1 penalty

Measurement of penalty is a basic part of the criminal justice activities, refers to the people's court according to law shall be sentenced to criminal discretion of punishment activities. Specifically, is the people's court according to the facts of the crime, the nature of the crime, the circumstances of the crime and the degree of harm to society, in accordance with the decision of whether criminals sentenced to a punishment, sentenced to what kind of punishment, punishment or penalty if the immediate execution of a criminal trial activities.

General principles of penalty discretion is: to the criminal facts, taking the criminal law as the criterion.

2 recidivism

Recidivism is sentenced to a punishment of crime, the penalty is finished or pardoned crime, some committed within the statutory time limit of crime.

The criminal law of our country is divided into general recidivism and special recidivism.

Recidivism conditions are: (1) before and after the crime crime must be intentional crime, criminal negligence does not constitute recidivism; (2) before and after the crime of the crime should be sentenced to the punishment of crime; (3) after crime must occur before the crime, the punishment has been completely executed 5 years or pardon within the. Special recidivism refers to the crime of endangering national security in the implementation of the sentence or pardon, any time recidivism crime of endangering national security, are to be treated as recidivists. Shall be given a heavier punishment to recidivist.

Four, several common crime

(a) the crime of corruption

The basic characteristics of the crime of corruption:

(1) violated object, is the ownership of public integrity and property staff of state organs.

(2) as the objective aspect of the crime of corruption, the state personnel who take advantage of their office, embezzle, steal, cheat or by other means of illegal possession of public property act. The so-called "using the convenience of duty" refers to using the convenient condition handling, management or the competent authority of public property; illegal possession of public property is embezzlement, theft or fraud.

(3) the subject of corruption crime is a special subject or national staff.

(4) the subjective aspect is direct intention, and has the purpose of illegal possession of public property. The purpose of illegal possession of public property, refers to the act of taking illegal control of public property, hope the eventual transfer of ownership.

(two) the crime of accepting bribes

The basic characteristics of the bribery crime:

(1) the bribery crime infringement, is the official duty behavior clean and state organs normal management activities and reputation.

(2) the objective aspect of the performance of the following acts: ① demand property from others by taking advantage of his office. ② illegally took other people's property to seek interests for others. The working personnel of the state in economic exchanges, in violation of state regulations, accept all kinds of commission, fees, to all individuals, shall be punished for taking a bribe. Convenient conditions the state personnel who take advantage of their power or position of the other countries, the working staff's act, to seek illegitimate interests as trustees of property as trustees, ask for or accept property as trustees, shall be punished for taking a bribe.

(3) the subject of bribery crime is the working personnel of the state criminal law, unit can be the subject of bribery.

(4) the subjective aspect of bribery crime is directly intentionally. Bribery intention including: illegal property from others intentionally and accept others' property for the benefit of others, that is deliberately trading power for money.

(three) a major liability accident crime

The characteristics of the crime of major accident liability:

The characteristics of the object (1). Public safety hazards is social security, which most people's life health and major public and private property.

(2) characteristics of the objective aspect. To not obey in the process of production and operation management, violates the rules and regulations forcing workers to illegal adventure homework, so the occurrence of major accidents, causing serious consequences.

(3) the main features. The subject is a special subject, limited to industrial and mining enterprises, institutions engaged in production and is directly responsible for the safety in production workers, technical personnel and production director, no other personnel as the main body of the crime.

(4) the subjective feature. Shows a subjective fault, are overconfident negligence and negligence, the inevitable link between violations and serious consequences, or believe can avoid, or due to negligence for failing to anticipate.

(four) the crime of smuggling

The following are the main characteristics of the crimes of smuggling:

(1) the violation of the object, is the national foreign trade control, namely the national customs inbound and outbound means of transport, goods and articles, supervision and management; implement the tariff system of goods, goods in and out.

(2) the objective performance for the violation of the Customs Law and other regulations, escape behavior evade tariff customs supervision.

(3) the subject of crime is general subject, which can be achieved by the age of responsibility, natural person with responsibility ability, can also form by the unit.

(4) the subjective from the intentional, illegal profit-making purposes. But the law only for the crime of smuggling pornographic articles for profit or communication for the purpose, not specific requirements for other smuggling crime.

(five) the crime of intentional injury

The basic characteristics of the crime of intentional injury:

(1) the object is infringing others' health right. Criminal behavior caused by other human tissue or organ dysfunction, against the health of others.

(2) in the objective aspect, performance for the illegal infringement of health behavior. According to the different situation of harm behavior may cause minor injuries, serious injuries, disability, death of different degrees of harm result. The extent of damage only to "minor" to constitute a crime, minor injury does not constitute a crime. Serious injury, disability and death as the aggravated plot to be considered, does not affect the establishment of this crime.

(3) the subject is a general subject. According to the criminal law, has over 14 years of age under the age of 16 serious injuries or death, shall bear criminal responsibility.

(4) in the subjective aspect, must have the illegal intentionally damage the health of others. If the fault does not constitute the crime of injury. Reach the injured degree of negligence mayhem. Whether subjectively harm has deliberately is distinguished injury death and crime of intentional homicide.

(six) the crime of illegal detention

The following features of the crime of illegal detention:

(1) the object is infringing citizen's personal freedom rights.

(2) the objective aspects for detention, detention or other compulsory unlawful deprivation of personal liberty of others behavior.

(3) the subject of crime is general subject, natural person by reached the age of criminal responsibility has the capacity of criminal responsibility.

(4) the subjective aspects of crime motive from intentional, usually for debt, harbor resentment, extort confession, flaunting privilege.

(seven) the crime of robbery

The following are the main characteristics of the crime of robbery:

(1) the object of the crime is a complex object, mainly encroaches upon the ownership of public or private property, but also violated the rights of the person. As the target of criminal property limited to movable property.

(2) the objective aspect of the performance of the use of violence, coercion or other methods to plunder property behavior.

(3) the subject of crime is general subject, namely to age of responsibility, has the responsibility of the person. According to the criminal law, has over 14 years of age under 16 years of age who committed robbery crime shall bear criminal responsibility.

(eight) the crime of theft

The following are the main characteristics of the crime of theft:

(1) the crime object is the ownership of public or private property. Criminal object is public or private property, including tangible property, including electricity, gas and other intangible property.

(2) the characteristics of the object is the secret of stealing large amounts of public or private property behavior. Secret filch, refers to the act of using a method that is not being the owner of the property, the custodian, was aware of possession of property. As crimes against property, theft amount is the important criterion for defining the theft theft, only relatively large amount of time or theft to constitute a crime.

(3) the subject of crime is general subject, which reached the age of criminal responsibility of natural person has the capacity of criminal responsibility.

(4) the subjective aspect from the intention, has the purpose of illegal possession of private property.

Administrative law

Overview, administrative law

Sources of administrative law

(1) including the general sources of administrative law: the constitution; law; regulations, administrative regulations, local regulations and autonomous regulations, separate; administrative rules and local government rules.

(2) special sources of administrative law: legal interpretation, including the highest authority of interpretation, interpretation and administrative organs of the state judiciary interpretation, the state administrative organs, the interpretation of the local organs of state power of interpretation. International treaties and agreements.

Two, the administrative legal relationship main body

The state administrative organs is the administrative main body mainly, but not limited to the administrative subject to administrative organs, including for administrative power in organizations authorized by law.

Administrative power is transformed form of national administrative power, administrative subject qualification and competence is the implementation of the national administrative management activities. Administrative power is the main content of:

(1) the administrative legislative power; (2) the administrative decision-making; (3) the right of administrative decision; (4) the administrative command; (5) the power of administrative execution; (6) the right of administrative punishment; (7) the power of administrative enforcement; (8) the administrative jurisdiction.

The three, administrative act

(a) classification of administrative act

1. internal administrative behavior and administrative actions

This is in the scope of its application and effectiveness of the role of the object as the classification standard for.

2. abstract administrative acts and the specific administrative act

This is classified by its object is specified as a standard for.

The so-called abstract administrative act, refers not to a particular person or thing as management object, formulate normative documents universally binding behavior, such as the formulation of administrative regulations.

The specific administrative act, refers to the process of administrative management, adopt specific measures for specific people or things, content and result of its behavior will directly affect the interests of an individual or organization.

3. strict administrative act and administrative discretion

This is classified by the administrative act by the legal norm constraint degree of standard.

4. according to the administrative behavior and administrative behavior functions according to application

This is to classify whether can take the initiative to make administrative acts as the standard of.

5. unilateral administrative act and the administrative act

This is the classification number to the establishment of administrative act means that the parties in the standard.

Unilateral administrative act refers to the administrative organ of unilateral means that, without the consent of the consent of the other administrative actions can be set up by the.

The administrative act refers to the administrative organ for official purposes, administrative behavior consistent with relative parties and the establishment of the.

6. wants the type administrative behavior and non formal administrative act

The administrative act should have certain legal form as the standard, the administrative behavior can be divided into formal administrative act and non formal administrative act.

7. as the administrative behavior and administrative nonfeasance behavior

This is based on whether the administrative behavior as a way to show for the classification of.

8. administrative legislation, administrative law enforcement and administrative judicial act

This is the division of the administrative right to expression and the formation of carrying out the administrative behavior legal relationship as a standard.

9. self behavior, behavior and the behavior of entrust authorized

This is the source of administrative authority for classification standards for.

Invalid (two), the cancellation of administrative act

Conditions and legal consequence of invalid administrative behavior of 1.

(1) the conditions of invalid administrative act: the administrative act is illegal circumstances particularly significant; the administrative behavior is illegal situation obviously; implementation of the administrative behavior will lead to crime; administrative behavior, not possible; the subject of administrative acts of the executive relative person of coercion or deception to administrative behavior and administrative body; is not clear or obvious beyond the corresponding administrative authority.

(2) the legal consequence of invalid administrative act: the administrative opposite party can not be the acts, not to carry out any obligation to determine the behavior, and the non performance does not assume legal responsibility; the administrative relative party may at the request of any time have the right to state organs announced that the act is invalid; the competent authority may invalid administrative behavior corresponding announced at any time; the administrative act is declared invalid, the administrative subject by this behavior from all the administrative relative party shall be returned to the relative person; and to all the obligations of relative person shall be removed; the actual loss caused by the relative person, shall indemnify.

Conditions and legal consequences of revocation of 2. administrative act

(1) the cancellation of administrative act conditions

The administrative legitimacy defect. Legal administrative act must have the main legitimate, lawful content, the legal procedure of elements. An administrative act as long as the defect of one element, administrative behavior of the administrative act is revoked.

The administrative act is not appropriate. The so-called "inappropriate", refers to the corresponding administrative behavior is not rational, not just, do not meet current decision, be inopportune or inappropriate, not to the kind customs situation.

(2) the legal consequences of the cancellation of administrative act

Administrative behavior since the date of revocation of the loss of legal effect, effect of revocation can be traced back to the date of making administrative behavior.

If the administrative act is revoked, the resulting phase actual damages to the other party shall be subject to administrative compensation.

If the cancellation of administrative act is because the administrative counterpart's fault, joint fault or administrative bodies and other causes, the cancellation of administrative behavior, the administrative subject through the corresponding behavior has been given the rights and interests of the other party to recover, the administrative relative party for the losses suffered by the cancellation of administrative behavior, is responsible by itself the state or society; public administrative behavior has been cancelled because of the loss of administrative relative party shall, according to their degree of fault to be appropriate compensation; administrative body or its staff should take the internal administrative legal responsibility to lead to the cancellation of administrative act of its fault.

Four, the abstract administrative act

1. classification of abstract administrative act

Abstract administrative acts can be divided into execution abstract administrative behavior, supplement the abstract administrative acts and the autonomy of abstract administrative act.

2. classification of administrative legislation

Administrative legislation, according to different standards, can be used for different classification. ① according to its legislative power sources are different, can be divided into general authorized legislation and authorized legislation. According the legislative body is different, can be divided into the central administrative legislation and administrative legislation. ③ according to administrative legislation content, purpose is different, can be divided into executive legislation, supplementary legislation and testing legislation.

Five, the specific administrative act

(a) administrative levy

The administrative expropriation occurred according to the standard for syndrome, collection can be divided into the following three categories:

(1) caused by the using right of expropriation. Resource fee collection, the construction funds can be classified as such.

(2) caused by administrative law on compulsory levy. Tax, management fee collection can be classified such.

(3) caused by violating the provisions on administrative law collection. Sewage charges, payment collection can be classified as such.

(two) the administrative license

Classification of administrative license:

(1) according to the scope of the license, divided into general and special license license;

(2) according to the permission level, divided into exclusive and non exclusive license license;

(3) according to whether used alone, a separate license and conditional license;

(4) according to whether additional obligations, divided into right of licensing and licensing of obligation;

(5) according to its duration, divided into long-term permission and deadline license;

(6) according to the content of the license, divided into behavior licensing and licensing.

(three) the administrative punishment

The implementation of administrative penalties

The program is a very important part of the procedure of administrative punishment, "administrative punishment law" has made the following provisions:

(1) establish lay hold separation system, the administrative organ and the institution that collects the fine separation which have made the punishment decision. The parties shall receive administrative punishment decision within fifteen days as of the date of, pay the fine at the designated bank, the bank will be fined over directly to the state treasury, finance department shall not in any form to the administrative organ that has made the decision on punishment return fines and confiscated illegal the and illegal property auction payments.

(2) retained on the spot penalties system in some special cases, in order to improve administrative efficiency. "Administrative punishment law" article forty-seventh, the provisions of article forty-eighth, in making the decision of punishment in accordance with the summary procedure, if it is improper or field collection to give a fine of twenty yuan the following in accordance with the law after the difficult to implement, can by the law enforcement personnel collect the fine on the spot; in addition, in remote areas, water, traffic inconvenience, the parties to the designated bank to pay the fine is difficult, the party put forward, may collect the fine on the spot. Collect the fine on the spot, law enforcement personnel shall be issued by the financial department unified receipts and payments, within two days to the administrative organ.

(3) if a party concerned fails to perform the decision of punishment, the administrative organ may take corresponding measures, due to not pay the fine day by three percent of the fine shall be added; according to the attachment, seizure of property or the auction will be allocated to freeze the deposits of fine; apply to the people's court for compulsory execution. To have financial difficulties of the parties, may allow deferred payment or payment in installments.

Six, administrative contract and administrative guidance

(a) the administrative contract

The role of administrative contract in social life is reflected mainly in the:

(1) from the administrative subject, administrative contracts can better exercise administrative functions, to ensure the realization of the goal of administrative contract, but also because of the relationship between rights and obligations clearly, and avoid mutual prevarication, muddle with one's duty, stop irresponsible work style.

(2) from the counterpart, administrative contracts can make better play their enthusiasm and creativity, and can make the contract dispute occurs against a door, solve it.

(two) the administrative guidance

The main feature of administrative guidance:

(1) it is the social management action of the administrative subject; (2) it belongs to the "positive administration" category; (3) the application scope is extremely wide, in various ways; (4) it is a kind of modern principle of the rule of law with administrative behavior; (5) it does not have the force of law, is a kind of flexible behavior; (6) it does not directly produce legal consequences.

Seven, administrative procedure

The main feature of administrative procedure:

(1) the administrative procedure is the sum of the administrative activities, steps, sequence and time. (2) the administrative procedure is the administrative main body, administrative management, exercise the administrative power and the steps. (3) the administrative procedure has relative independence, has its regularity.

Eight, administrative litigation

(a) the basic principles of administrative litigation

Administrative litigation is specific to administrative disputes as treatment object, which determines the specificity of administrative litigation is different from other litigation activities of the basic principle, characteristic mainly has: (1) the people's court in charge of specific principles; (2) the administrative proceedings the specific administrative act does not stop the implementation of the principle; (3) the negative the principle of burden of proof; (4) non mediation principle; (5) to review the legality of specific administrative acts principle; (6) the principle of judicial change power co..

(two) participants in administrative proceedings

1. participants in administrative proceedings summary

Administrative litigation participants refers to the process of administrative proceedings to protect their legitimate rights and interests of others or to participate in the administrative litigation of the parties and similar litigation status, including the plaintiff, the defendant, the common litigants, third people, an agent ad litem.

Administrative litigation refers to the administrative dispute, lawsuit in their own names, responding to or participate in action, the people's court and the constraint of citizen, legal person or other organization and administrative bodies, including the plaintiff, the defendant. Administrative litigation parties have different names in different stages of litigation: in the procedure of first instance that the plaintiff and the defendant; that the appellant and appellee in the second trial procedure; in the trial supervision procedures, if applicable, the procedure of first instance is still called the plaintiff and the defendant, if applicable, Proceedings of the second instance is called the appellant and the appellee. Different appellations, show their status in different procedures, rights and obligations are not the same. But they have the following characteristics:

(1) action in its own name;

(2) has a direct interest and administrative cases;

(3) by the people's court restraint.

2. in the administrative proceedings plaintiff

In administrative litigation, the plaintiff refers to that specific administrative acts infringe upon their lawful rights and interests, bring a lawsuit to the people's court in accordance with the administrative procedure law, thus causing the citizens, legal persons or other organizations administrative litigation began. The administrative litigation plaintiff must meet the following conditions:

(1) must be as the administrative relative citizens, legal persons or other organizations;

(2) must be that specific administrative acts infringe upon their legitimate rights and interests of the administrative relative person.

3. defendant in administrative litigation

In administrative proceedings, the defendant is defined by the original told called out specific administrative acts infringe upon their legitimate rights and interests and authorized by the people's Court Notice of responding to the administrative organ or the law, regulations of the organization.

4. administrative litigation in the common litigants

"Administrative procedure law" the twenty-sixth stipulation: "when one party or both parties consist of two or more persons, because of administrative cases occurred the same specific administrative act, or by the specific administrative acts of the same court administrative cases that can be handled together, as a joint action." The common litigants is refers in common in the administrative proceedings, the people together to sue and be sued, together with the prosecution called co plaintiffs, together known as the co defendant respondent.

5. the third parties in administrative litigation

The third parties in administrative litigation refers to has interests in a specific administrative act in the administrative litigation proceedings, in the process of applying to participate in the proceedings or the people's court shall notify the citizens, legal persons or other organizations to participate in the proceedings.

6. administrative litigation agent

An agent ad litem is defined according to the provisions of the law, or designated by the people's court, or the entrusted party, legal representative, to the name of the party, in a certain scope, the parties to litigation activities. The party called agent or trustee.