行政犯理论的代际更新与本土建构——中国经济刑法学四十年的观察主线

Inter-generational Renewal and Localization-based Establishment of the Theory of Administrative Crimes——Taking Forty Years of Science of Economic Criminal Law of China as the Main Perspective

行政犯理论的发展是洞察中国经济刑法学四十年发展的主线。我国行政犯理论先后经历从无到有、从刑法注释学到刑法教义学的发展。教义学阶段的研究重点解决注释学阶段比较法研究水平不高、理论方案穿透力有限、立法论与解释论不分等问题,针对行政犯的概念、性质、法益、构成要件与不法(违法性)判断等问题展开系统化与规范化的学术研究,同时也存在核心命题尚未形成共识、教义学研究自主性不足、忽视立法论研究等新问题。当前,理论研究应逐步摆脱对于德日理论的过度依赖,凝聚方法论共识,以中国刑法规范与司法实践为土壤,充分融入“不法重合、制裁竞合、定性与定量”等“中国元素”的考量,在解释论上形成一致的、具有指导性和可操作性的行政违法与刑事犯罪的界分方案,在立法论上理性思考行政犯的立法模式与处罚边界,建构本土化与自主化的行政犯理论。

The development of the theory of administrative crimes is the main line of observing the science of economic criminal law of China in the past forty years. The theory of administrative crimes in China has been developed from scratch, from the interpretation of criminal law to the dogmatics of criminal law. The research in the latter stage, with emphasis on overcoming the problems in the former stage such as the not-high level of comparative study, the limited penetration of theoretical schemes,the lack of distinction between legislative and interpretive theories, has been academically carried out in a systematic and normative way on the concept, nature, legal interests, constituent elements,and wrongfulness(illegality) of administrative crimes. However, it also has new problems such as the lack of a consensus on core propositions, the lack of autonomy of dogmatic research, and the neglect of legislative studies. In the new phase, theoretical research should gradually avoid the over-reliance on German and Japanese theories, reach methodological consensus, take the norms of criminal law and judicial practice in China as the foundation, fully take the "Chinese elements" such as "overlap of wrongfulness, concurrence of sanctions, qualification and quantification" into the consideration, thus forming a consistent, guiding, and operative scheme of distinguishing the administrative illegality from the criminal offense in terms of the doctrine of interpretation and rationally considering the legislative model and penalty boundaries of administrative crimes and building a theory of administrative crimes based on the criminal law of China in terms of the legislative theory.