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The Guarantee Principle Against Double Jeopardy

Author: ZhangShuang
Tutor: LiuShuBo
School: Changchun University of Science and Technology
Course: Constitutional and Administrative Law
Keywords: No Penalty Be applicable Administrative penalties
CLC: D922.11
Type: Master's thesis
Year: 2011
Downloads: 164
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Abstract


"Guarantee principle against double jeopardy" the principle of legislative intent to limit over-expansion of administrative law enforcement powers, and thus protect the public’s legal rights, promote social fairness and justice, maintaining the force of law and protection of the law of justice. For the "guarantee principle against double jeopardy" the principles of research and study in the theory and reality of law enforcement never stopped, "guarantee principle against double jeopardy" the application of the principle of administrative law enforcement in our country there are very controversial. It mainly reflects the unduly restricted under executive power, one-sided implementation of "guarantee principle against double jeopardy" whether the principle would serve to punish and prevent illegal legal effect, simply to protect the legitimate administrative interests of the so-called relative, it will lead to the corruption of law enforcement appears phenomenon. If strengthening, the executive power will lead to improper punishment over the administrative counterpart, because of the administrative penalty relative overweight or repeated punishment to the detriment of social justice. "Guarantee principle against double jeopardy" is an administrative penalty in the theoretical principles, it is generally accepted in the division of authority of the executive law enforcement powers which are not very clear crossover phenomenon. There are different administrative authorities, received on the basis sector, the industry different administrative laws and regulations to punish the same conduct, resulting in the issue and more punishment. From the effective implementation of security administration and protection of the legitimate interests of civic organizations point of view, the "guarantee principle against double jeopardy" principle study seems necessary.This text is divided into four parts of "guarantee principle against double jeopardy" principle discussed.The first part of "No One penalty," the principle of a general overview, from the "punishment jeopardy" principle, meaning to proceed, mainly on the "Yi Shi" and "no penalty"" on the definition and understanding of the detailed analysis. First, the "guarantee principle against double jeopardy" is an overview of the principles as a starting point, discusses legislation in Western countries as an important responsibility of a system of "guarantee principle against double jeopardy" principle, the intention is: "The one who has violated the law act, shall not be given the same facts and the same basis of two (times) more than punishment." Elaborate on the "guarantee principle against double jeopardy" the principle of the origin and development, the Roman Republic from the "Fuji of First Instance of the case" in the second century, developed into a "non basis in idem" principle, until the 20th century,70 years about the principles of this legislation has been widely applied to the relevant administrative punishment law, its meaning is embodied through the legal punishment,the concept of understanding from the legal level is to maintain the administrative order. It reflects the fine rather than to protect the faith. Understanding of the legislative constraints exist two types of contradiction of power and empowerment. Principles for its resolution, the first "issue" is divided into offense that the violation of legal norms that constitute essential conditions and "experience, common sense says," and violations of administration order that the different views and interpretation of one by one. For the "no penalty" understanding that in the definition of "matter" under the premise of how to apply. The second part discusses the extraterritorial "guarantee principle against double jeopardy" study and learns the principles of the United States and Taiwan law and German law of the "guarantee principle against double jeopardy" the principle of the social and economic development and other aspects of the different social factors. Its application defines the scope of the principles and there are some differences on these similarities and differences of and about the contrast with China’s law applies, further, it detailed analyses the "guarantee principle against double jeopardy" and problems of application.By virtue of other countries and Taiwan, "punishment no longer" summarized the experience of worth learning. The third part explores further "guarantee principle against double jeopardy" principle applied in China, for "guarantee principle against double jeopardy" principle applies to discussion of the problems. China’s "Administrative Punishment Law" in the legislative process did not do detailed descriptions and explanations on the theory of boundary, that’s because the "guarantee principle against double jeopardy" the principle of complexity in the implementation is different from understanding of "guarantee principle against double jeopardy" principle both in theory and practice, there are some problems, fully integrated in the different sectors for the "guarantee principle against double jeopardy" which is a brief analysis of the application of the principle to explore the various administrative and law enforcement sectors and how to implement or use of "guarantee principle against double jeopardy". For the "guarantee principle against double jeopardy", the discussion on the application of the principles, is combined with the conclusion of the actual situation:even though the "guarantee principle against double jeopardy" does not touch the current system since it does not apply to different sectors (areas) of the administrative organ of the same offense the case though it has the right to punish behavior, it applies far beyond the space "the same authority but not based on the same administrative offense to two or more of the punishment", at least to the extent, that "guarantee principle against double jeopardy" can be applied; the development of anything has double-sided and multi-faceted."p guarantee principle against double jeopardy" of administrative law does not only play an important role in the promotion and protection of a fair and impartial law enforcement to play its significant role, but also for the maintenance of social security and stability on its outstanding limitations. This requires the implementation of the legal system can not only blindly follow the "guarantee principle against double jeopardy" fits-all principle in order to distinguish between the different offenses, but is a reasonable Cardio to play a more universal effect of legal and regulatory efforts.In this paper, respectively, exceptions applicable to the case are described, combined with our transport, taxation, environmental and industrial and commercial administrative law enforcement in the implementation of the analysis concludes that "guarantee principle against double jeopardy" applies some effects in our problem and its causes, it summarizes in the administration of the main uncertainty, uncertainty, and applicable rules of distribution of power uncertain. The fourth part of the problem on the Improvement of "guarantee principle against double jeopardy" principle recommendations, for their application in theory and practice problems, is thinking of how the existing system of "guarantee principle against double jeopardy" principle to be improved. Sector management to follow the special functions is better than to punish the principle of strict punishment of relief following the principle of cooperation between the executive authorities to establish and control mechanisms. Comparing with it, high level of sector management is superior to the principle of punishment and continues to strengthen our already well established for the "No One penalty" principle, to further promote the "guarantee principle against double jeopardy", the principle of executive power. Under the current system while also for the actual situation, a clear body of administrative law enforcement, a reasonable allocation of executive law enforcement powers, the application of science to develop a reasonable standard, in order to avoid "guarantee principle against double jeopardy" principle of administrative law enforcement in the real embarrassing situation arising in the process. Further promote the scientific and standardized legislation, law enforcement just to rationalize illegal penalty rather than a socialist democratic legal process. To solve these problems need to be sure "guarantee principle against double jeopardy" the law enforcement body, a reasonable allocation of "punishment no longer" the executive power and the norm of "guarantee principle against double jeopardy" applicable rules.

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CLC: > Political, legal > Legal > Chinese law > Administrative law > Administrative decree
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