What is an administrative violation? What is crime? Let’s learn about the similarities and differences between these two concepts according to current legal regulations.
1. Similarities between administrative violations and crimes
Administrative violations and crimes are two different concepts but both have the following things in common:
– Administrative violations and crimes are both illegal acts.
– The subject of the administrative violation and the subject of the crime must both bear legal responsibility corresponding to the nature and extent of the law violation.
2. Distinguish between administrative violations and crimes
Administrative Violations | Criminal | ||
Concept | Administrative violations are acts committed by individuals or organizations that violate the provisions of law on state management but are not crimes and according to the law must be sanctioned for administrative violations. main. (Clause 1, Article 2 of the Law on Handling of Administrative Violations 2012 ) | Crime is a socially dangerous act prescribed in the Penal Code, committed intentionally or unintentionally by a person with criminal liability capacity or a commercial legal entity, violating independence, sovereignty, unity and territorial integrity of the Fatherland, violating the political regime, economic regime, culture, national defense, security, order, social safety, legitimate rights and interests of organizations, infringing on human rights, legitimate rights and interests of citizens, and infringing on other areas of the socialist legal order that, according to the provisions of this Code, must be criminally handled. (Article 8 of the 2015 Penal Code ) | |
Legal grounds | – Law on Handling of Administrative Violations 2012 ; – Law on Administrative Procedures 2015. | – Penal Code 2015 (amended and supplemented 2017); – Criminal Procedure Code 2015 . | |
Constitutive signs | Objective side | * Objective behavior: Acts contrary to administrative law are expressed in the form of action (the subject performs actions prohibited by administrative law) or inaction (the subject does not perform actions required by administrative law). Must perform). If there is no illegal act of the subject, it cannot constitute an administrative violation. | * Objective behavior: Among the objective signs , signs of socially dangerous behavior are mandatory signs for all criminals. If there is no socially dangerous behavior, there is no crime, so Article 8 of the Penal Code stipulates that crime is a socially dangerous behavior. Only socially dangerous behavior causes damage to social relationships protected by the Criminal Law. Socially dangerous behavior is carried out by action or inaction.
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* Level of social danger of the behavior: Administrative violations have a lower level of danger to society than crimes. The level of danger to society of the violation is assessed by many different factors and these factors are often specified in legal documents of competent state agencies . | * Level of social danger of the behavior: That behavior must pose a “significant danger” to society. The significant danger here is under the Criminal Code. | ||
* Dangerous level of behavior: To determine, it is required that competent authorities rely on awareness of the boundary between administrative violations and crimes, which have been specifically stipulated in the criminal code , decrees , and circulars guiding in the laws. Specific case. The level of damage is expressed in different forms such as the level of injury, value of damaged property , and value of illegal goods. | |||
* Consequences of behavior: Consequences caused by illegal administrative acts to society ( social damage ). Illegal acts of administrative law at different levels are dangerous to society , they can cause or contain the risk of causing material , mental and other damages to society. festival. The level of danger to society of an administrative violation is assessed and determined through the level of actual damage or risk of causing damage to society that the act causes. | * Consequences of behavior: The consequences of crime are one of the objective signs that constitute a crime , the damage caused by socially dangerous behavior to social relations protected by the Criminal Law, and are important to understand. Determine the nature and level of danger of the crime. The greater the harmful consequences, the higher the danger of the crime. Including physical damage and mental damage. – Physical damage is damage that can be measured and determined at a certain level such as death, injury with a percentage of health damage, property damage expressed in money, etc. – Moral damages are other damages whose amount cannot be determined, such as slander, humiliating others, etc. | ||
* Cause and effect relationship between behavior and consequences: The damage to society is in fact an inevitable consequence of illegal acts of administrative law, caused by illegal acts of administrative law. As stated above, the consequences of administrative violations can be actual damages or the risk of causing damage to society. In some cases, for some specific administrative violations, lawmakers stipulate that the subject’s behavior is only considered an administrative violation when that behavior has caused actual damage. In these cases, determining the cause and effect relationship between an illegal act of administrative law and the consequences (social damage) it causes is extremely necessary to confirm that there has been an administrative violation. main or not. | * Cause and effect relationship between behavior and consequences: The harmful consequences of crime are significant in determining the stage of completion of the crime. A crime with a material component is considered completed when the dangerous act has caused harmful consequences. A formal crime is considered completed when the offender commits an act dangerous to society according to the provisions of specific articles in the Penal Code. The cause and effect relationship between criminal behavior and consequences is a relationship between phenomena in which a phenomenon called cause (objective behavior) gives rise to another phenomenon called result (is objective behavior). consequences of crime). | ||
* Other signs such as time, location, method, tricks, tools, means, etc. to perform the act: For example : Clause 2, Article 6 of Decree No. 167/2013/ND-CP dated November 12, 2013 of the Government stipulating sanctions for administrative violations in the field of security, order and social safety; Prevention of social evils; fire prevention and fighting; Domestic violence prevention and control stipulates penalties for violations of regulations on ensuring public tranquility, including the use of loudspeakers, gongs, drums, whistles, trumpets or other means. to promote in public without permission from the competent authorities . show behavior | * Other signs such as time, location, method, tricks, tools, means, etc. to perform the act: Signs of time and place in the objective aspect of the crime structure indicate that the crime was real at a certain time and place. This is one of the issues that must be proven in a criminal case . Most crimes in the Penal Code do not specify time or location, so no matter what time or location the crime occurs, it does not affect the determination of the crime. Except for specific crimes of the Penal Code that stipulate time and location, time and location are characteristic signs and are required to determine the crime, such as the crime of illegal activities in mountains or forests. remote area, the crime of smuggling must have a location that is across the border , if I kill someone while on duty , there must be a time when I am on duty , etc. Methods and tools for committing crimes are one of the objective signs. Most crimes in the Penal Code do not stipulate methods and tools as specific signs to determine crimes, so in this case, method and tool signs are not mandatory signs. However, in the Penal Code, there are some crimes that stipulate the methods and tools of the crime as characteristic signs to determine the crime such as Point a, Clause 1, Article 104: using dangerous weapons to cause damage to many people. ; Point a, Clause 1, Article 93 stipulates murder by a method capable of killing many people, etc. Thus, signs of methods and tools of the crime are one of the signs that must be proven in criminal cases. However, to determine a crime, it is necessary to comply with the provisions of the law. | ||
Subjective side | Administrative violations have two forms of errors: intentional errors and unintentional errors. Violations that are directly or indirectly intentional or unintentional due to overconfidence or negligence are all handled the same. | Crime has four forms of fault: direct intentionality and indirect intentionality, unintentional fault due to overconfidence and intentional fault due to negligence. Thus, because the socially dangerous nature of the behavior of each case of error is different, and crime is the most serious type of law violation, four forms of error are stipulated to help accurately resolve criminal cases. the. | |
Object | The objects of administrative violations are social relationships that are protected by administrative law but are violated by administrative violations , causing damage or threatening to cause damage. The main object is the sign to recognize: Administrative violations are acts that violate the state administrative management order regulated and protected by administrative law . | The object of crime is the social relationship protected by the Criminal Law, which is violated, damaged or threatened by criminals. | |
Subject | Subjects of administrative violations are individuals and organizations with administrative liability capacity , meaning that according to the provisions of administrative law, they must be responsible for their illegal acts. For individuals, they must be of a certain age and have full ability to perceive and control their behavior. | According to the Penal Code, the subject of a crime can be an individual or a commercial legal entity. | |
Competent agency handles handling | Depending on each specific case, the case will be assigned to many competent agencies and people, mainly state administrative agencies. The Court’s sanctioning of administrative violations is only applied within a very narrow scope . | Can only be adjudicated by the Court | |
Processing procedures | Procedures for sanctioning administrative violations largely involve unilateral power on the part of state administrative agencies, although the law stipulates the right to complain and denounce subjects who are handled for administrative violations. | Offenders are prosecuted before the Court according to judicial proceedings, with the participation of lawyers to ensure to the highest extent the rights of citizens to only be convicted by criminal judgment when there is sufficient evidence. sufficiently, clearly and after open and fair litigation procedures | |
Penalty regime | Light. Mainly targets the physical and mental factors of violators (warnings , fines …) | Heavy. Mostly punishment involves deprivation of the offender’s freedom | |
Illustration | – The act of using loudspeakers, gongs, drums, whistles, trumpets or other means to promote in public places without permission of the competent authorities. (Regulated in Clause 2, Article 6 of Decree No. 167/2013/ND-CP ); – Violations of regulations on driving vehicles through irrigation works causing damage to irrigation works. (Regulated in Point b, Clause 2, Article 18 of Decree No. 104/2017/ND-CP dated September 14, 2017) | – The act of using force or threatening to use force immediately or causing the attacked person to fall into a state of being unable to resist in order to appropriate property owned or managed by them. ( The crime of robbery is stipulated in Article 168 of the 2015 Penal Code ). – The act of using force, threatening to use force, or taking advantage of the victim’s defenseless state , or using other tricks to have sex or perform other sexual acts against the victim’s will. ( The crime of rape is stipulated in Article 141 of the 2015 Penal Code ). |