罪刑法定与行政法治的关系协调

Coordination of the Relationship between the Nullum Crimen Sine Lege and the Administrative Rule of Law

应当正视行政法和刑法的共性和差异性,以良性的行政法治为基础,实现符合实质正义要求的刑事法治。刑法和行政法诸多差异的根源在于其基本原则的不同旨趣:一是"法"的指导原理不同;二是"法"的渊源范围不同。在立法层面应当注意:刑法的空白罪状援引行政法补充的合理范围;小犯罪圈模式国家刑法介入行政管理的合理限度。在司法层面应当注意:行政法的修改对犯罪构成司法认定的影响;从实质上把握犯罪与行政违法行为的界限;引用行政法规范性文件解释刑法时应当慎重审查。

We should face up to the similarities and differences between administrative law and criminal law, because the rule of criminal law in accordance with the requirements of substantive justice can only be realized on the basis of benign rule of administrative law. The origin of many differences between criminal law and administrative law is the different purports of their basic principles ： one the one hand, the guiding principle of “law” is different; on the other hand,the scope of the sources of law is different. At the legisla-tive level, we should pay attention to ： the reasonable scope of quoting administrative laws to supplement blank facts about a crime ; rea-sonable limits of intervening in administrative management by criminal law in courtiers with the model of small crime circle. At the ju-dicial level, we should pay attention to： the influence on the judicial determination of constitutive elements of a crime for the modifica-tion of administrative law; grasp the dividing line between crime and administrative illegality in essence; carefully examine their ration-ality in the quoting normative documents of administrative law to interpret the criminal law.