论行刑衔接规范的类型化及其治理面向

Typification of the Norms of the Connection between Administrative Procedure and Criminal Procedure and its Governance Orientation

行刑衔接是深化行政执法体制改革的重点内容,对行刑衔接规范进行类型化分析契合法治的需要。行刑衔接规范主体上可以分为“行刑衔接依据法规范”与“行刑衔接法规范”,前者主要指行刑衔接的依据法,是作出行政执法与刑事司法的依据所在,而后者则呈现“衔接性”“指引性”的特征,吸收“附属刑法”“空白罪状”等现有机制,重在明确行刑衔接的标准、程序与功能。“行刑衔接法规范”本身具备实体规范和程序规范双重属性,而程序规范是行刑衔接法规范的核心。通过对行刑衔接规范的识别与归类,不难洞察“小规范”背后的“大治理”,即“全面治理”“精准治理”“及时治理”“系统治理”四个治理面向,并最终归结于“良法善治”的治理面向之中。

The connection between administrative procedure and criminal procedure has become the key content of deepening the reform of administrative law enforcement system,and the type analysis of the connection between administrative procedure and criminal procedure conforms to the need of the rule of law.The main body of the norms of connection between administrative procedure and criminal procedure can be divided into"the pursuant norms of the connection between administrative procedure and criminal procedure based on law"and"the implementary norms of the connection between administrative procedure and criminal procedure".The former mainly refers to the law of the connection between administrative procedure and criminal procedure,which is the pursuance for administrative law enforcement and criminal justice.The latter presents the characteristics of"cohesion"and"guidance",absorbs the existing mechanisms such as"affiliated criminal law"and"blank charge",and focuses on clarifying the standards,procedures and functions of the the connection between administrative procedure and criminal procedure."The implementary norms of the connection between administrative procedure and criminal procedure"itself has the dual attributes of entity norms and procedural norms.And procedure norm is the core of the implementary norms.Through the identification and classification of the norms of connection between administrative procedure and criminal procedure,it is not difficult to insight into the"big governance"behind the"small norms",that is,the four governance aspects of"comprehensive governance","precise governance","timely governance"and"systematic governance",and ultimately come down to the governance aspects of"good law and good governance".