How does administrative punishment affect criminal responsibility?

In the process of reviewing and prosecuting, we often encounter such a situation. The criminal suspect has been subject to administrative punishment for illegal acts of the same nature before being placed on file for investigation by judicial organs. For example, a criminal suspect who committed a crime because of repeated theft, trouble-making and other illegal acts, before filing a criminal case for investigation, the public security organ only grasped one of the illegal acts and was sentenced to administrative detention because it did not constitute a crime. Later, it was found that the suspect had many illegal acts such as theft and trouble-making, which constituted a crime according to the provisions of the criminal law. When he is transferred for examination and prosecution, how to deal with the administrative detention of the criminal suspect is directly related to the legal rights of the criminal suspect and must be handled carefully. In the process of reviewing criminal cases, we will also encounter administrative penalties such as fines, confiscation of illegal income, confiscation of illegal property, temporary suspension or revocation of licenses, and temporary suspension or revocation of licenses. The examination and determination of administrative punishment affects the conviction and sentencing of criminal suspects, so it must also be paid attention to in the examination and prosecution procedure. I. Review of the Decision on Fines and Administrative Detention Article 28 of the Administrative Punishment Law stipulates that if the illegal act constitutes a crime and the people's court sentences the party to criminal detention or fixed-term imprisonment, if the administrative organ has given the party administrative detention, the corresponding sentence shall be reduced according to law. When the illegal act constitutes a crime and the people's court imposes a fine, if the administrative organ has imposed a fine on the party concerned, the corresponding fine shall be reduced. When applying the above provisions, we should pay attention to the following situations: First, the criminal behavior of the criminal suspect and the behavior subject to administrative punishment should be the same behavior. According to the relevant judicial interpretation, the defendant was sentenced to the same criminal act as the previous administrative detention, and the date of detention was reduced to fixed-term imprisonment. The same act mentioned here can be all criminal acts of the same nature identified in the judgment, or some criminal acts of the same nature. The date of administrative detention should be reduced to fixed-term imprisonment as long as it is an act that has been punished by administrative detention before and is later identified as all or part of a crime. Therefore, if the criminal act of the criminal suspect is not the same as the act of administrative detention, the date of the criminal suspect's administrative detention for this act cannot be credited to the sentence, but the relevant materials should still be transferred to the people's court as a plot for the court to consider the defendant's subjective malignancy and daily performance. Second, the administrative penalty imposed by the administrative organ on this act cannot be revoked unless it is illegal and obviously inappropriate. According to the relevant laws and regulations, the conditions for revoking administrative punishment are mainly that the administrative punishment is illegal and obviously inappropriate. Whoever steals public or private property, according to Article 49 of the Law on Public Security Administration Punishment, shall be detained for more than five days and less than ten days, and may be fined up to five hundred yuan; If the circumstances are serious, he shall be detained for more than 10 and less than 15, and may also be fined less than 1000 yuan. When the public security organs only verify the theft of one suspect, there is nothing wrong with the administrative detention and fine that do not reach the crime amount, and there is no reason to cancel it. However, for some acts, the Public Security Administration Punishment Law stipulates the penalties of fines and administrative detention, while the Criminal Law only stipulates the penalty of freedom, without fines. Those who stir up trouble, the Law on Public Security Administration Punishment stipulates that they shall be detained for more than five days and less than ten days, and may be fined up to 500 yuan; If the circumstances are serious, he shall be detained for more than 10 and less than 15, and may also be fined less than 1000 yuan. According to the criminal law, the punishment for the crime of provoking trouble is: fixed-term imprisonment of not more than five years, criminal detention or public surveillance. Therefore, in practice, there may be such a situation: if a person is sentenced to administrative detention and a fine for the crime of provocation, and then he is investigated for criminal responsibility for the same act, the date of administrative detention can be reduced to fixed-term imprisonment, but the fine cannot be reduced to a fine, because the criminal law does not stipulate the fine penalty for the crime of provocation. How to deal with this situation, the law does not expressly provide. The author believes that this is an inappropriate administrative punishment, and the public security organ should change the decision of administrative punishment, revoke the administrative punishment of the fine, and return the fine to the punished person, otherwise it will violate the criminal law principle of adapting crime to punishment. Third, we should pay attention to the review of the limitation of prosecution. As for the crime of theft, Article 22 of the Law on Public Security Administration Punishment stipulates that violations of public security administration will not be punished if they are not discovered by public security organs within six months. The Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Theft Cases stipulates that if multiple thefts constitute a crime and should be prosecuted according to law, or if the last theft constitutes a crime, and the previous theft is within one year, the total amount of theft should be accumulated. That is, the criminal suspect's theft during the period of more than six months but less than one year is no longer punished by public security, but is investigated by criminal law; If a person is punished by a fine or administrative detention for theft for more than one year, the amount of theft shall not be accumulated, nor shall the fine and sentence be deducted. Ii. review of the decision to confiscate illegal income and illegal property according to article 64 of the criminal law, the property illegally obtained by criminals shall be recovered or ordered to make restitution; The lawful property of the victim shall be returned in time; Contraband and personal articles used in crimes shall be confiscated. If an administrative organ finds that the case has constituted a crime after making an administrative punishment of confiscation and recovery of illegal income for illegal acts, it shall transfer the case to judicial organs for handling, and transfer the punishment decision and related funds and materials together; If it is not necessary to transfer it according to law, the list of confiscated illegal income shall be transferred. Attention should be paid to finding out the factual basis and legal basis of administrative punishment in the process of examination and prosecution, and whether the relevant funds and materials belong to illegal income or illegal property. After the case reaches the court, the court will make a judgment to confiscate the illegal income and property in criminal judgment. If it is not illegal income or illegal property after examination, the administrative organ shall revoke the original administrative punishment decision of confiscation of illegal income or illegal property, and return the relevant money and property to the punished person. Three. Examination of the decision on withholding or revoking a license Under normal circumstances, if an illegal act constitutes a crime, no administrative punishment will be imposed. Those who have been subjected to administrative punishment shall be deducted accordingly when criminal responsibility is investigated. The most typical ones are freedom punishment and economic punishment. However, under certain circumstances, both criminal responsibility and administrative responsibility can be investigated for the same illegal act. If a traffic accident constitutes a crime, the public security traffic management department may also impose a penalty of revoking the driver's license when transferring the criminal suspect to commit a crime. If tax evasion constitutes a crime, the administrative organ may revoke its business license in addition to investigating criminal responsibility. The reason for doing this is to make up for the deficiency of criminal law in cracking down on a crime. Criminal punishment and administrative punishment will form a joint force to crack down on crime, thus cracking down on crime more effectively. If there is a mistake in the administrative punishment, the organ that made the administrative punishment cannot be required to correct it. Because this kind of administrative punishment does not belong to the scope of examination and prosecution, nor does it involve the conviction and punishment of criminal suspects. If the administrative punishment is indeed wrong, it shall be resolved by the criminal suspect through administrative reconsideration or administrative litigation. (Author: People's Procuratorate of Jixian County, Tianjin)