妨害公务罪的认定:基于一个强制拆除案

Determination of the Crime of Obstructing Public Service:Based on a Case of Forced Demolition of Private Property

城镇化进程中符合妨害公务罪构成要件的公务主要集中在妨害行政执法行为,注定了妨害公务罪的判断要从刑法和行政法上“双向奔赴”进行,不可割离。公务合法性的判断应该采用形式加实质说,坚持行为时标准,事后通过行政诉讼或行政复议等救济途径解决的公务合法性问题不应溯及行为时。在法秩序统一性视野下,对行政诉讼裁判为违法的行政行为,刑事诉讼中需要对行政行为是否合法进行实质审查,不能唯前置法是从。

The official duties that meet the elements of the crime of obstructing public service in the process of urbanization are mainly focused on obstructing administrative law enforcement,which predestines the judgment of the crime to be made from criminal law and administrative law that cannot be separated.The judgment of the legality of official duties should adopt the form-plus-substance theory and adhere to the standard at the time of the act,and the legality of official duties resolved afterwards through administrative litigation or administrative reconsideration should not be retroactive to the time of the act.In the view of the unity of the legal order,as for the administrative act of the administrative litigation judged as illegal,the criminal proceedings need to review the substance of the administrative act of lawfulness,not only the antecedent law.