犯罪与治安违法行为的“但书”界分——以“法规竞合”现象为中心

On the Distinguishing of Crime and Public Security Violation by Proviso——Take the Phenomenon of Legal Coincidence As the Center

犯罪与治安违法行为的界分是一个理论和实践难题,特别是在《刑法》和《治安管理处罚法》对相关违法行为的规定出现"竞合"的情况下,一般只能运用《刑法》第13条中的"但书"对其进行合理界分。但是,在"但书"的适用上,学界的认识却并不统一,司法实践中的做法也较为混乱。由此,必须要在理论上予以澄清。"但书"的适用不能脱离犯罪构成,也不应综合考察各种主客观因素,只能在犯罪构成体系之下进行客观判断。在实践中,应当明确"情节显著轻微危害不大"的规范构造与实质内涵,并采取有序的逻辑步骤,将其适用于具体案件的判断。

It is a theoretical and practical problem to distinguish the crime and public security violation. Especially in the case that the criminal law and the law of public security administration have overlapped the provisions of some illegal acts, only the proviso in article 13 of the criminal law can be used to reasonably divide them in general. However, in the application of the proviso, the academic opinions are not uniform, and the handlings of judicial practice are also chaotic. Therefore, it must be clarified in theory. The application of the proviso should not be separated from the constitution of crime, nor should overall considerate various subjective and objective factors, and only make objective judgments under the system of criminal constitution. In practice, it is necessary to clarify the structure and connotation of the ＂circumstance is obviously slight and harm is not serious＂, and take the logical step to apply it to the judgment of specific cases.