The overall concept of national security has greatly enriched the connotation of national security and built a national security system in the new era. At present, there are still deficiencies in the connection between the mainland's administrative sanctions and criminal sanctions for acts endangering national security, which are mainly manifested in the lack of administrative sanctions and the lack of specialized national security administrative sanctions. As a result, there is a disconnect between the behavior regulated by administrative sanctions and criminal sanctions, which is easy to form a penalty loophole. In this regard, it is necessary to construct a "dual sanction model" in the field of national security from the perspective of a positive view of criminal law, implement the requirements of the overall national security concept, and make all-round identification and regulation of acts endangering national security in the face of the severe and complex international situation.
At present, the world is undergoing major changes unseen in a century, and the course of human history and the direction of development are ushering in a major adjustment. As the mainland enters a new era of socialism with Chinese characteristics, its comprehensive national strength has been further enhanced, and the international situation it is facing has become increasingly complex. As a result, the mainland's requirements for the construction of the national security system and its governance capacity have also been further enhanced. In recent years, the pattern of national security construction on the mainland has been continuously consolidated, and the connotation of national security has been further enriched. However, at the same time, the current construction of the legal system related to national security is still not perfect, and there are still many problems in the connection between the administrative rule of law and the criminal rule of law in national security, and there are still areas that can be improved in the construction of the national security legal system from the perspective of the overall national security concept.
I. The current state of administrative and criminal laws for national security protections
Since the Sixth National People's Congress decided to establish the Ministry of State Security, the State Security Department, as a constituent department of the State Council, has the nature of an administrative organ and the qualification of an administrative law enforcement entity. At the same time, the Criminal Procedure Law gives the state security organs the function of conducting criminal investigations. Based on this, state security organs are similar to public security organs, and they have the dual attributes of administrative and criminal justice, undertaking both daily counter-espionage and intelligence administrative work, and also having the investigation function of crimes endangering national security. Therefore, the issue of national security protection cannot bypass the connection and intersection of administrative protection and criminal protection, and the issue of the connection of the rule of law in execution is the meaning of the topic of national security development and construction under the overall national security concept.
(1) The current status of national security administrative laws
From the perspective of illegality, administrative violations are at a lower level, so as a sanction to punish general violations, the universality of administrative measures should be much wider than that of criminal sanctions. However, as far as the current legal system is concerned, although administrative laws that systematically and comprehensively regulate national security have been promulgated one after another, the number of provisions related to national security administrative sanctions is relatively small. At present, the more typical national security administrative legislation includes the Counter-espionage Law enacted in 2014, the National Security Law enacted in 2015, and the National Intelligence Law enacted in 2017. Among them, the Counter-espionage and National Security Law has made relatively basic and comprehensive provisions on national security, and is a basic and protective law in the field of national security on the mainland. Other provisions related to national security are scattered in specific chapters of legislation in special areas such as the Cybersecurity Law and the Political Security Law, such as the Guarding of State Secrets.
However, taking the National Security Law as an example, although it is a comprehensive and overall legal norm, under the guidance of the overall national security concept, it has made systematic and comprehensive provisions on all aspects of national security, in terms of specific content, it does not set specific sanctions for illegal acts that endanger national security, and only makes some general provisions, and does not set specific administrative penalties. In contrast, the Counter-espionage Law is slightly different in that it has been comprehensively revised on the basis of the 1993 National Security Law, highlighting the characteristics of counter-espionage work, and explicitly providing for administrative penalties for a variety of acts involving espionage in Chapter IV, "Legal Responsibility". At the same time, the National Intelligence Law also stipulates relevant administrative sanctions for acts related to obstruction and leakage of national intelligence.
According to the provisions of the Counter-espionage Law, the setting of administrative sanctions mainly includes the following aspects:
The administrative sanctions provided for in the National Intelligence Law are as follows:
In addition to the above provisions, article 19 of the Detailed Rules for the Implementation of the Counter-espionage Law stipulates that the relevant departments shall punish those who carry out acts endangering national security in accordance with law, and the state security organs may also give warnings. In addition, Article 24 stipulates that the state security organs may decide that persons suspected of espionage shall not leave the country for a certain period of time.
To sum up, on the whole, administrative sanctions related to national security are characterized by decentralization in terms of legal provisions, the National Security Law does not form overall sanction rules, and the sanctions that can be exercised by state security organs are not clear. For example, the Counter-Espionage Law can only regulate espionage-related acts endangering national security, and the National Intelligence Law can only punish intelligence-related illegal acts, and has failed to regulate other types of acts endangering national security.
(2) The current state of national security criminal laws
From the perspective of criminal legal regulation, the criminal law sanctions related to national security are mainly stipulated in Chapter 1 of the Criminal Law, "Crimes Endangering National Security". From Articles 102 to 113, the chapter regulates criminal acts such as subversion of state power, espionage, leakage of intelligence, and defection through more than 10 articles, and makes a more specific distinction between criminal acts endangering national security. In addition, in January 2001, the Supreme People's Court promulgated the Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Cases of Theft, Espionage, Bribery, and Illegal Provision of State Secrets and Intelligence Abroad, which has a guiding role in the identification of relevant acts.
II. The challenge of linking criminal sentences from the overall national security perspective
(1) The connotation of the connection between criminal and criminal sentences in the overall national security view
The so-called issue of the connection between execution and execution in theory can refer not only to the coordination mechanism between administrative law enforcement organs and criminal justice organs in handling cases, but also to the connection between criminal law and administrative law in the substantive regulation of relevant acts.
From the perspective of procedural cohesion, on the one hand, due to the secrecy of the national security department, in order to safeguard national security, the relevant process of handling sanctions is often not made public, resulting in unclear research on this issue. On the other hand, due to the lack of administrative laws related to national security, although issues involving national security crimes can be resolved by the Criminal Procedure Law, the state security department has never issued a procedural document similar to the "Provisions on the Procedures for Handling Administrative Cases by Public Security Organs" of the public security department, resulting in a state where national security administrative sanctions are not based on and thus causing procedural difficulties in the convergence of criminal law. However, objectively speaking, due to the inherent secrecy of national security law enforcement, it is difficult to achieve a generalized normal legal model in terms of the procedures for connecting executions, which is the inevitable result of the particularity of the field of national security. Compared with procedural issues, substantive issues can highlight the main pain points of the connection between executions in the field of national security, and are also the main aspects discussed in this paper.
(2) The absence of administrative sanctions in the national security legal system
As mentioned above, only the Counter-espionage Law and the National Intelligence Law systematically provide for administrative punishments for acts endangering national security, but the targets of many of the above-mentioned administrative punishment methods have obvious categorical characteristics due to the restrictions in the regulatory field, for example, the punishment methods in the Counter-espionage Law and the National Intelligence Law are mainly aimed at espionage and acts involving national intelligence, and cannot systematically cover all aspects of national security work. If we want to find systematic norms for endangering national security, we can only rely on the general administrative penalties provided for in Article 9 of the Administrative Punishment Law.
Although the new national security law promulgated in 2015 covers a wide range of measures, it does not stipulate any specific administrative punishment measures, resulting in the absence of systematic administrative punishment measures in the field of national security. Generally speaking, the mainland's administrative punishments for national security and security are basically based on the Counter-espionage Law, but there is still no way to catch non-espionage acts that endanger national security. If the general provisions of the Administrative Punishment Law are applied, the scope and extent of the punishment need to be reconsidered on a case-by-case basis, which is not conducive to the law enforcement by the state security organs. However, there are very few sanctions related to national security in the Public Security Administration Punishment Law, and from the perspective of legal needs, state security organs need systematic and comprehensive administrative sanction rules.
(3) The existence of punishment loopholes between criminal and administrative regulations
In the chapter on crimes endangering national security in the Criminal Law, the typology of crimes is very obvious, and the relevant provisions of the Counter-espionage Law and the National Intelligence Law in fact only correspond to the crime of espionage in Article 110 of the Criminal Law and the crime of stealing, espionage, buying, or illegally providing state secrets and intelligence for foreign countries in Article 111. For example, the crime of financing criminal activities endangering national security in Article 107 and the crime of inciting separatism in Article 103 are provided for in the Criminal Law, but it is difficult to find corresponding administrative sanctions. In terms of the classification of crimes, the crimes in the Criminal Law can be divided into felonies and misdemeanors, while the chapter on endangering national security in the Criminal Law is generally a serious crime due to the particularity of protecting legal interests. Based on this, the criterion for criminalization of crimes constituting serious crimes endangering national security should be extremely strict and judged on the basis of the principle of legality of crimes.
Due to the special nature of national security legal interests, national security crimes are different from ordinary crimes in terms of their constitutive elements. Generally speaking, if the perpetrator commits an act endangering national security, causing an abstract or concrete danger endangering national security, it can constitute a crime, and it is not required to cause a realistic result. The problem is that the infringement of legal interests of abstract or concrete dangers that endanger national security has indeed reached a considerable extent, but there are inevitably a large number of relatively minor acts endangering national security in social life, and the degree of infringement of legal interests is not sufficient to produce abstract or concrete dangers endangering national security, and only has a slight illegality. It is true that the legal interests protected by crimes endangering national security are very important, but if only serious acts are dealt with and some corners that cannot be taken into account by the criminal law are ignored, there will inevitably be a loophole in punishment.
3. Construct a dual-tier sanctions model in the field of national security
(1) The dualistic sanction model for traditional public security behaviors
In the governance of violations and crimes, the mainland has adopted a dualistic cross-sanction system and legislative model that takes the amount of crime as a consideration, and the administrative and judicial organs share the task of social security punishment through "administrative punishment + criminal punishment". The dual sanction pattern formed by administrative violations and criminal acts essentially depends on the correlation between administrative violations and criminal acts in terms of constituent elements and regulatory fields, and the typical representative of them is the sanction connection between the Public Security Administration Punishment Law and the Criminal Law. The Public Security Administration Punishment Law provides for administrative penalties for acts such as disrupting public order, obstructing public safety, and infringing on personal and property rights, and intentionally injuring others may be detained for not less than 5 days but not more than 10 days, and if the criminal law meets the requirements of the criminal law, they shall be convicted and punished as the crime of intentional injury. Under such a dual sanction model, the punishment for illegal harm has been extended.
At the same time, in the dual sanction system, administrative violations and criminal violations form a dynamic balance relationship, from the perspective of administrative punishment, the necessary regulation of generalized crimes is conducive to the stability of social security, while from the perspective of criminal sanctions, only some of the more socially harmful behaviors in generalized crimes are evaluated as guilty, which is conducive to limiting the scale of criminalization and maintaining the modesty of criminal law.
(2) The construction of a dual sanctions model in the field of national security
It is worth noting that in the mainland's dual sanctions model, national security-related sanctions are in the absence mode. The Criminal Law stipulates criminal sanctions for endangering national security in special chapters, but due to different regulatory fields, there is no administrative sanction model for national security in the Public Security Administration Punishment Law, which is most closely related to the Criminal Law, and it forms a different pattern from most other illegal and criminal acts. From the perspective of the correspondence between criminal law and administrative violations, only some crimes in the criminal law have a corresponding relationship with administrative law, such as the crime of espionage in article 110, if it does not meet the requirements of participating in an espionage organization or accepting the tasks of an espionage organization or its agents, and only has the possibility and preparation for espionage acts, it is entirely possible to punish the illegal possession of documents, materials and other items that are state secrets as provided for in article 32 of the counter-espionage law, and confiscate the special espionage equipment that they illegally possess or use. Strangled espionage in the early stages. Based on the same reasoning, Article 111 of the Criminal Law stipulates the crime of illegally providing national intelligence to foreign institutions, but in terms of constitutive elements, this crime may only be constituted if the disclosure will cause damage to national security, and if the disclosure will only cause damage to national interests other than national security, it is not appropriate to convict and punish this crime. If the perpetrator is in the preparatory stage of divulging secrets, or if the leaked secrets are only related to national intelligence and do not have the nature of secrecy required by criminal law, the perpetrator may be given a warning or detained for up to 15 days in accordance with article 29 of the National Intelligence Law.
The above punishment model comprehensively punishes acts that may endanger national security through the dual violation model of "administrative sanctions" and "criminal sanctions". The benefits of using dual sanctions at the national security level are twofold. First of all, as a protective law, the criminal law plays a bottom-line role in the path of sanctions, and based on the principle of modesty, the scope of its rules can only be a small number of acts that infringe on legal interests more seriously. At the same time, as mentioned above, crimes involving endangering national security in the Criminal Law are often felonies in nature, so when convicting and sentencing the perpetrator's conduct, the grasp of the elements of the crime should be strictly limited, and cannot be arbitrarily determined. This logic of sanctions also means that even in the field of national security, the scope of regulation of crimes endangering national security is extremely limited, and criminal sanctions can only be imposed on more serious acts that endanger social security that meet the constitutive requirements, and the remaining many acts that do not infringe on legal interests and do not reach the level of crime are not convicted. At this time, the establishment and improvement of a systematic system for linking national security executions is conducive to distinguishing between criminal and administrative punishments for national security, and to include conduct that endangers national security interests that cannot be regulated by criminal law into a comprehensive sanctions system.
In addition, the legal interests of national security have their own particularities. Most of the infringements on the legal interests of property can be corrected in the form of making up for them after the fact, and the infringements on the legal interests of the social and economic order can also be changed through reasonable adjustment methods. However, the legal interests of national security are typically secret and irreparable, and the infringement of national security legal interests will directly or indirectly lead to damage to a series of interests such as national political security, military security, and economic security. Therefore, based on the requirements of the overall national security concept and taking the protection of national security interests as the starting point, the thinking on sanctions for acts endangering national security should be shifted from the concept of punishment to the concept of prevention. In other words, under the current situation of complex international situation and grim national security situation, criminal sanctions play little practical role in national security, and subsequent sanctions against the perpetrator can only be a kind of best effort to make up for it. Therefore, our legislation and law enforcement cannot evade administrative sanctions, and the acts regulated by administrative sanctions often do not reach the level of infringement of legal interests and do not reach the level of criminal offenses, and the consequences are not very serious, or only in the preparatory stage, and criminal means cannot be intervened, and the harmful acts endangering national security that do not reach the level of criminal regulation are curbed at the initial stage through administrative sanctions, and in essence, the effect is far greater than that of imposing criminal punishment on the perpetrator after the occurrence of a criminal offense endangering national security. Rationally distinguishing and adjusting the sanction means for acts endangering national security through a complete system of linking national security administration and criminal law is not only necessary to combat harmful acts, but also, in a deeper sense, an important means to discover, prevent, and regulate early acts endangering national security, and is of far-reaching significance to the ultimate goal of national security protection.
(3) The construction path of the dual sanctions model for national security
If we want to fundamentally solve the problem of the connection between execution and execution of national security, it is within the power of illegal interpretation. Although under the ideological standpoint of legal doctrine, the dilemma of law enforcement cannot be arbitrarily resorted to legislation, but in the case that the overall pattern is not yet perfect, it is necessary to appropriately supplement the legislation. In terms of the choice of the path for constructing the dual sanctions model of national security, the method of "timely legislation and comprehensive interpretation" should be adopted to improve it.
1. Approaches to timely legislation
At present, the mainland has formed a "one body, multiple wings" type of legislation with the national security law as the main body and the security laws of various specific departments supplementing it, in which the provisions on administrative sanctions in specific laws such as the Counter-espionage Law and the National Intelligence Law have tended to be perfected, but the overall and systematic norms of administrative sanctions are still incomplete. In this regard, the national security law should add the power of systematic administrative sanctions by state security organs.
First of all, a general provision should be added to clarify the existence of rights, for example, a provision clarifying the power of administrative sanctions of the state security organ should be added - "where the perpetrator commits an act endangering national security that does not constitute a crime, the state security organ shall give an administrative punishment." ”
Second, the national security law should also clearly state the scope of sanctions that state security organs may impose, such as "state security organs have the right to impose the following types of administrative punishments for acts endangering national security: (1) warnings, circulars of criticism; (2) Fines, confiscation of unlawful gains, or confiscation of illegal property; (3) Restricting the carrying out of relevant activities or ordering the cessation of relevant conduct; (4) Administrative detention; (5) Other administrative punishments provided for by laws and administrative regulations. "In terms of types, the types of administrative sanctions that may be imposed by state security organs are clarified.
Third, it should correspond to the acts in the criminal norms, and provide for possible acts endangering national security that do not require separate legislation, but have not yet been clarified with the consequences of administrative sanctions, so as to fill the loopholes in punishment. For example, a provision is added: "Where the circumstances of the financing of acts endangering national security are relatively minor and not sufficient to commit a crime, the state security organs shall impose administrative detention of not more than 15 days or a fine appropriate to the circumstances." This corresponds to the crime of financing criminal activities endangering national security under article 107 of the Criminal Code.
It is worth noting that even though the Counter-espionage Law provides for a number of administrative penalties, there are no administrative sanctions related to funding, and there are objectively loopholes in punishment. For such acts, which are already provided for by relevant special laws, they may need to be supplemented or explained, and they can be improved in specific laws, and there is no need to rise to the perspective of comprehensive laws.
2. Balance of comprehensive interpretation
In addition to making timely amendments to the National Security Law and some parts, in the process of constructing a dual national security sanctions system, it is also necessary to make a comprehensive interpretation of the execution boundary. When distinguishing between administrative and criminal violations, strictly grasp the principle of determining the constituent elements and make accurate judgments. At the same time, Guiding Cases can be released in a timely manner to form all-round research and guidance on the regulatory boundaries of national security cases, and to balance administrative and criminal sanctions.
Fourth, dualistic sanctions under the positive criminal law concept
As far as the traditional dual sanctions for social security are concerned, based on the recurrence of behaviors and the comprehensiveness of administrative regulations, the traditional dual sanctions should focus on limiting the scale of criminalization, expand the scope of administrative punishment as much as possible, and give full play to the restrictive function of the dual sanctions system. In the dual sanctions model of national security, the boundaries of execution need to be redrawn, and the main function of the dual sanctions model should shift to filling loopholes rather than restricting criminalization.
Even in today's increasingly developed risk society, the idea of comprehensively affirming a positive view of criminal law is often criticized, but for specific problems and different fields, an appropriate attitude of upholding a positive view of criminal law is conducive to the realization of social governance and legislative purposes.
The concept of positive criminal law has multi-level meanings, and in terms of concept, the concept of positive criminal law advocates that criminal law should widely participate in social governance. At the legislative level, it advocates the creation of new crimes and the expansion of the scope of punishment; At the judicial level, it advocates active and active interpretation of the law and plays the function of expanding interpretation. This paper argues that in the connection between the execution of acts endangering national security, a positive view of criminal law should be upheld in the judiciary, and the subjective initiative of the criminal law should be appropriately brought into play to punish the relevant acts. At present, the security situation at home and abroad is still complex and changeable, and the task of safeguarding national security is arduous. Under the guidance of the overall national security concept, criminal sanctions shall exert a certain degree of initiative and actively crack down on crimes endangering national security. However, it should be noted that upholding a positive view of criminal law in the judicial sense does not mean that crimes can be arbitrarily determined in violation of the principle of legality of crimes, nor does it mean that the boundaries of legal interpretation can be broken and interpreted by analogy.
This paper argues that upholding the concept of positive criminal law in national security governance mainly includes the following aspects:
First, it is necessary to adapt to the development of the international situation and expand the criteria for the identification of means. The wording of criminal law provisions is often limited by the times, and cannot be amended frequently due to the stability of the law. In recent years, the means of espionage at home and abroad have gradually become more and more diverse, and the awareness of camouflage technology and legal evasion has been significantly enhanced. Therefore, when convicting and sentencing relevant conduct, it is necessary to base on the law itself and in conjunction with the legislative purpose, pay special attention to the identification of diversified means of endangering national security, appropriately expand the interpretation within the limits of the legal interpretation, and implement effective sanctions and crackdowns on the relevant harmful conduct.
Second, it is necessary to attach importance to the criminal punishment of attempted offenders. In the context of criminal rule of law, because the attempted offender has not yet reached the harmful result, the infringement of legal interests caused has not reached the seriousness, so the sentence is to be mitigated or mitigated at sentencing. In the case of attempted misdemeanors, there is no punishment in most cases, such as attempted theft in judicial practice.
Under the usual dual punishment system, some faults without results and acts with only abstract danger are often the objects of administrative punishment. However, based on the preventive requirements for the protection of national security legal interests, the criminal law, as a safeguard law, has continuously moved its evaluation radius forward, which is a manifestation of the initiative of a positive view of criminal law. The legal interests of national security are directly related to the development of the country and the national economy and people's livelihood, and need to be paid special attention to and prevented. Therefore, when imposing criminal sanctions on acts endangering national security, a positive view of criminal law should be upheld, and the evaluation radius of the criminal law should be moved forward, and even if it is an attempt, even if it does not cause a relatively serious constituent element, it should be decisively punished, so as to curb any conduct that may endanger national security.
Third, it is necessary to uphold a positive view of criminal law in terms of punishment. Acts that endanger national security have not only real consequences, but also potential consequences. The results of a series of means endangering national security, such as the leakage of state secrets and intelligence, and incitement to the public, may often appear at some point in the future, and have immeasurable potential security risks, so the conviction and sentencing of acts endangering national security should not only consider the results caused by the acts, but should comprehensively consider the results of the conduct by combining the means and conduct and the relevant impact. Conduct that might cause a serious threat to national security should be resolutely punished heavily, so that the punishment is commensurate with the crime and the general preventive effect of national security can be achieved.
epilogue
The overall concept of national security has greatly enriched the connotation of national security and provided practical and effective guidance for the construction of the national security legal system. In view of the mainland's traditional dual sanction model, when the world is undergoing great changes unseen in a century and the international situation is becoming increasingly complex, the construction of a dual sanction model in the field of national security with a positive criminal law concept is conducive to distinguishing between administrative and criminal violations and accurately cracking down on acts endangering national security. At the same time, it will help improve the regulatory system for illegal acts of national security, implement the overall national security concept, fill the loopholes in punishment, ensure national security, and provide a strong guarantee for the construction of socialism with Chinese characteristics.