也论行政犯的性质及其对行政刑法定位的影响

Re - discussion of the Nature of Administrative Crime & Its Influence on the Status of Administrative Criminal Law

行政犯的性质问题实质上是一个行政犯与刑事犯以及秩序违反行为的关系问题,行政犯包括对法益的侵害或威胁,属实质性的违法,是对派生性生活秩序的违反,其理念在行政上的合目的性;而刑事犯的理念在于社会正义;应被科以罚金或其他秩序罚的行政法规违反,并不是对行政法规的直接攻击,而是对顺利达到其行政目的而规定的一定义务(即行政义务)的违背。因而应当根据行政犯的特殊性相应适用与普通刑法的一般原则所不同的行政刑法原则。

The essence of the problem of administrative crime is whether it falls within the ambit of the administrative law or the criminal law, or is a violation of social order. Administrative crime consists of a violation or threatening of legal interests. It is a substantial violation of law and is against the derivative social order. What it intends to protect is consistent with the objective of administration. On the other hand, a criminal wrong is a violation of social justice. Though administrative crime is an offense that consists of a violation of an administrative rule or regulation and carries with it a fine or other punishment, it is by no means a direct attack on administrative rules or regulations, but it is a violation of certain duties (administrative duties) provided by administrative laws. With its characteristics, special administrative crime principles should be adopted that are different from the general rules of the criminal law.