结果持续型违法行为“继续状态”之拟制

Continuous Nature’s Fiction of the Results Sustained Offence

对于行为本身即时结束,但后续有状态与结果在继续的结果持续型违法行为是否属于《行政处罚法》第36条第2款中规定的“违法行为有继续状态”的问题,学术界存在都不属于与全部属于两种观点。解决实践问题时应运用“在社会危险性方面,即时结束的行为后续结果与状态的继续仍可造成与行为实施时相当的侵害性与危险性,甚至还会逐渐增大;在主观方面,行为人直接以行为结束后结果与状态的维持作为其行为的目的”的拟制标准,只有符合标准的结果持续型违法行为才可纳入法条调整范畴,以对法条规定进行有限度的扩大理解。

There are two views in the academic circles on whether the continuous offence with the result that the act itself ends immediately but the subsequent state and result continue belongs to the“continuous state of offence”stipulated in paragraph 2 of Article 36 of the“Administrative Punishment Law”.When solving practical problems,we should use the drafting standard of“in terms of social risk,the continuation of the follow-up results and state of the behavior immediately ended can still cause the same aggression and risk as that when the behavior is implemented,and even gradually increase;in terms of subjectivity,the perpetrator directly takes the maintenance of the results and state after the behavior as the purpose of his behavior”.Only the result continuous offence that meets the standard can be included in the scope of law regulation,so as to expand the understanding of the provisions of the law to a certain extent.