How to define public security penalties and criminal penalties

The Criminal Law and the Public Security Administration Punishment Law are similar in content, but there is an essential difference in degree

1. Where a crime is constituted in accordance with the provisions of the Criminal Law and criminal responsibility is to be pursued in accordance with the law, the Criminal Law shall apply;

2. If the criminal punishment is not sufficient, the public security organ shall impose a public security administrative penalty in accordance with the Law on Public Security Administration Punishments;

3. The main body of law enforcement of the Criminal Law is the people's courts, while the main body of punishment of the Law on Public Security Administration Penalties is the public security organs.

Public security penalties are handled in accordance with the Law on Public Security Administration Punishments, and the nature of the case is an administrative case, and public security penalties can be handled by the public security organs alone.

The criminal punishment is handled in accordance with the Criminal Law and the Criminal Procedure Law, and the nature of the case is a criminal case, and the criminal punishment must go through the procuratorate, which then initiates a lawsuit with the court.

The specific definition can first be seen whether a crime is constituted.

That is, whether the act has the constitutive elements of a crime, illegality and responsibility.

That is, whether the act meets the type of crime stipulated in the criminal law, whether the illegality is justified defense, emergency avoidance, etc., and finally the age of criminal responsibility is seen in the sense of responsibility.

1 When there is difficulty in defining, emphasis may be placed on analysing whether an offence has been constituted.

2 A public security penalty is an administrative penalty. The law provides that fines and detention shall be offset against fines and prison sentences.

3 From 2, it is possible for the two to coexist.

4 One of the more important reasons for the confusion between the two is the imperfection of the law on penalties for the administration of public security itself.

Legal analysis: 1. Public security punishment refers to the punishment of a person who violates the law slightly and does not constitute a crime. Criminal punishment is the punishment of a person who has committed a serious crime and constitutes a crime.

The main difference is the severity of the offense targeted. That is, if the violation is a minor violation, the public security penalty shall apply. Where serious violations of the law constitute a crime, criminal punishment is to be applied.

2. The former is an administrative penalty, and the latter is a criminal penalty. 3. The former shall be decided by the public security organs, and the latter shall be decided by the court. 4. The latter has strict procedures, and the legitimacy of the former is questioned.

Legal basis: "Law of the People's Republic of China on Public Security Administration Punishments" Article 22: Where violations of the administration of public security are not discovered by the public security organs within six months, they are no longer to be punished.

The time period provided for in the preceding paragraph is calculated from the date on which the violation of the administration of public security occurs; Where violations of the administration of public security are continuous or continuous, it is calculated from the date on which the conduct ends.

Legal analysis: 1. The premise of criminal punishment is that the violation of the criminal law constitutes a crime and is punished by the criminal law, and it is generally a person who has committed a serious crime; Public security penalties refer to situations such as endangering public safety and infringing on citizens' personal rights, and generally the violation is minor and does not constitute a crime.

2. Public security punishment is an administrative punishment and is a type of administrative punishment.

3. Public security punishment is a kind of administrative punishment imposed by the public security organs, and the criminal punishment is determined by the judgment of the people's court.

4. The basis for punishment of the two is also different, the public security punishment is based on the "Public Security Punishment Regulations", and the criminal punishment can only be based on the "Criminal Punishment Law".

5. The intensity of punishment between the two is also different, the intensity of public security punishment is relatively light, because the circumstances are minor, and the intensity of criminal punishment is relatively heavy, aiming at serious illegal and criminal acts.

Legal basis: "Law of the People's Republic of China on Public Security Administration Punishments" Article 2: Where public order is disrupted, public safety is endangered, personal rights and property rights are violated, social management is obstructed, and a crime is constituted in accordance with the provisions of the Criminal Law of the People's Republic of China, criminal responsibility is to be pursued in accordance with law; where it is not sufficient for criminal punishment, the public security organs are to give public security administrative sanctions in accordance with this Law.

First, the targeted behavior is different. Administrative punishments are aimed at citizens, legal persons, or other organizations that violate national laws and regulations and have not yet constituted a crime, and shall bear administrative responsibility in accordance with law. The penalty is for an act that has already violated the Penal Code and constitutes a crime.

Acts of the same nature will be punished of different natures due to different degrees of egregiousness and different consequences.

Second, the basis on which the penalty is imposed is different. The basis for administrative punishment is laws, administrative regulations, local regulations, administrative rules, etc.; The application of criminal penalties can only be based on the Criminal Law and the amendments to the Criminal Law made by the National People's Congress. For example, the provincial people's congress may enact local regulations to provide for the imposition of administrative penalties for certain acts for the needs of local administration, but it is not possible to provide for the imposition of criminal penalties for certain acts that are not provided for in the Criminal Law.

Third, the organs that impose the penalties are different. The subject of the implementation of administrative punishments is the state administrative organs and other non-administrative organs authorized by laws and regulations. It is carried out in a much wider range of subjects than criminal punishments.

The penalty can only be decided by the court and then referred to the executive authorities. For example, fixed-term imprisonment and life imprisonment are handed over to prisons, short-term sentences with shorter sentences or less than one year remaining are handed over to detention centers for enforcement, control is handed over to local public security organs for enforcement, and short-term detention is handed over to detention centers for enforcement. Some penalties, such as fines, can also be imposed by the courts.

Fourth, the types of penalties are different. There are two types of punishments: principal punishment and supplementary punishment. The main penalties include public surveillance, criminal detention, fixed-term imprisonment, life imprisonment and the death penalty; Additional penalties include fines, deprivation of political rights and confiscation of property, in addition to expulsion for crimes committed by foreigners.

The types of administrative penalties include warnings, fines, orders to suspend production and business, suspension or revocation of permits, suspension or revocation of business licenses, confiscation of illegal property, confiscation of illegal gains, and administrative detention. Although there are also administrative punishments for the person, there is only one type, that is, administrative detention, and the upper limit of administrative detention is 15 days, which cannot be compared with criminal punishment in terms of severity.

Fifth, the subjective psychology of the offender has different influences on the assumption of responsibility. In the criminal field, whether the perpetrator is subjectively intentional or negligent, whether he actively pursues the result of his behavior, or allows the result to occur, or should have foreseen the result but did not foresee it, or has foreseen the result but believes that he can avoid it, such a state of mind is of decisive significance to the determination of guilt and innocence, as well as this crime and other crimes. However, in the process of administrative punishment, whether the actor is subjectively intentional or negligent is not as important as pure excavation for the determination of the illegal act, as long as the subjective fault and the objective implementation of the administrative violation, it can be considered that an administrative violation is constituted, and the administrative punishment can be imposed.

Public security penalties are generally imposed on parties when they violate the provisions of the Public Security Administration Punishment Law, and the enforcement body is usually the public security organ. The enforcement entities of administrative punishments are not only public security organs, but also administrative organs and social organizations with administrative punishment powers.

Article 5 of the Law of the People's Republic of China on Public Security Administration Punishments provides that public security administrative punishments must be based on facts and be commensurate with the nature, circumstances, and degree of harm to society of the violation of public security administration. The implementation of public security administrative punishments shall be open and fair, respect and protect human rights, and protect citizens' personal dignity. The handling of public security cases shall adhere to the principle of combining education and punishment.

Criminal punishment refers to the violation of the criminal law, which should be punished by the criminal law, and the digging of lead is generally referred to as "criminal punishment". In the current criminal regulations, criminal punishment can be divided into two types: principal punishment and supplementary punishment, of which the principal punishment includes a total of five types

controlled release, criminal detention, fixed-term imprisonment, life imprisonment, death penalty; There are generally four types of supplementary punishments: fines, deprivation of political rights, confiscation of the perpetrator's property, and deportation.

Criminal punishment refers to the violation of the criminal law, and the act should be punished by the criminal law, generally referred to as "criminal punishment". In the current criminal regulations, criminal punishment can be divided into two types: principal punishment and supplementary punishment, of which the principal punishment includes a total of five types

Article 32 of the Criminal Law [Principal Punishment and Supplementary Punishment] Punishments are divided into principal punishment and supplementary punishment. Article 33 of the Criminal Law [Types of Principal Punishments] The types of principal punishments are as follows: (1) control; (2) short-term detention; (3) fixed-term imprisonment; life imprisonment; (5) The death penalty.

Article 35 of the Criminal Law [Deportation] For foreigners who have committed crimes, expulsion may be applied independently or in addition.

The biggest difference between public security administrative penalties and criminal penalties is:Legal basisDifferent. The public security administrative penalties provided for in the "Public Security Administration Punishment Law of the People's Republic of China" are administrative punishments. These include warnings, fines, administrative detention, revocation of permits, and deportation within a time limit.

The punishment provided for in the Criminal Law of the People's Republic of China is a criminal punishment, that is, a criminal punishment. There are two types of punishments, namely, principal punishment, short-term detention, fixed-term imprisonment, life imprisonment, and death, and supplementary punishments include fines, deprivation of political rights, and confiscation of property. There are also penalties for expulsion of foreigners.

In general, the two have been closely linked since then; The difference between the two is that there are more types of penalties than public security punishments, and the degree of punishment is also more severe than public security punishments.

Legal basisArticle 10 of the Law of the People's Republic of China on Public Security Administration Punishments.

The types of public security administrative penalties are divided into:

a) Warning; b) fines;

3) Administrative detention;

4) Revoke permits issued by public security organs.

Foreigners who violate the administration of public security may be subject to an additional time limit for leaving the country or being deported.

Article 33 of the Criminal Law of the People's Republic of China.

Types of Principal Punishments] The types of principal punishments are as follows:

a) control; (2) short-term detention;

(3) fixed-term imprisonment;

4) life imprisonment;

(5) The death penalty.