行政违法行为犯罪化的检视与应对

The Review and Response to the Criminalization of Administrative Offense

转型社会深化衍生出诸多社会风险,为了保障社会秩序运行安全,本来属于幕后角色的刑法逐渐走上前台,逐渐由个人权益的保障规范转化为社会治理的规制工具。在此背景下,行政违法行为犯罪化的立法活动开始彰显,以更大程度确保社会安全与运行畅通。鉴于行政法与刑法在价值追求、内在属性上的差异,行政违法向刑事犯罪转化的过程中,需认真权衡行政违法犯罪化的合理性与合法性。根据行政刑法的外在特性判断,行政违法行为犯罪化需具备以下特征:违法行为具有严重的社会危害性、法益侵害性、客观真实性和二次违法性。

In the transformation society, many social risks have been derived. In order to ensure the safety of social order, the criminal law which originally is the behind the scenes has been coming to the front stage, and gradually transformed from the protection standard of personal rights to the regulation tool of social governance. In this context, the legislative activities of the criminalization of administrative illegal acts have begun to manifest, and to ensure that social security and operation are unimpeded. In view of the difference between administrative law and criminal law in pursuit of value and intrinsic attributes, we should seriously weigh the rationality and legality of administrative offense eriminalization in the process of transforming administrative offenses to criminal offenses. According to the external characteristics of administrative crime, the administrative offense criminalization should have the following characteristics： illegal behavior has serious social harmfulness, legal interest violation, objective authenticity and two illegality.