治安管理处罚法与刑法的外在冲突与内在协调

The External Conflict and Internal Coordination Between Public Security Administration Punishment Law and Criminal law

治安管理处罚法与刑法的内容存在相当深的竞合。但是它们的关系应该理解为相互衔接,而非重叠的。分别设置在治安管理处罚法和刑法中的相同行为,只有以实质解释论为依托,以行为的社会危害程度为基础,才可以界定行为的性质,才符合立法的意旨。解决治安管理处罚法与刑法冲突的最好办法是立法,新的立法应该以行为模式作为一般违法行为与犯罪的分水岭。

The contents of Public Security Administration Punishment Law are tightly linked with Criminal Law. Yet, the relationship between the two should be understood as interlinked instead of overlapping. The same behavior stipulated in the two laws must be interpreted according to the theory of substantial explanation and the nature of the conduct must be determined according to the degree of the harm done to the society. The best way to resolve the conflict between the Public Security Administration Punishment Law and the Criminial Law is to make new laws which take the patterns of conducts as the dividing line of common unlawful practices and crimes.