“两法衔接”与我国行政刑法的新建构

The Effective Connection between Administrative Enforcement and Criminal Justice after the Abolishment of the Reeducation-Through-Labor System——With the Discussion about the New Construction of the Administrative Criminal Law

劳教制度废止后,面临着重新思考和组合行政执法与刑事司法衔接的重要任务。本文基于我国司法改革的进程,以及长期以来行政执法与刑事司法衔接上遇到的瓶颈,包括我国刑法"一元结构"暴露出的弊端,提出了"独立于刑法之外"的行政刑法新建构(或称特别行政处罚法)。并指出,废除劳教制度的理由并非其功能不合理,而是其合法性和程序公正上受到质疑。由于我国刑法只是"刑罚"的"一元结构",没有针对危险犯的"保安处分"从而削弱了刑罚与行政罚的衔接功能。尤其在我国刑法"既定性又定量"构罪标准的前提下,使得行政执法与刑事司法的衔接障碍长期凸显,事实上其交叉地带非常需要一种缓冲或过渡,以有效处罚那些不构成犯罪但属于刑事性质的行政违法行为及其危险犯。故本文提出了在刑法之外来建构"行政刑法"以及人身自由罚与财产罚"司法化"的新思路,包括未来行政刑法(或称特别行政处罚法)中"法官独任"审判与"行政直诉"的新建构。以打造具有中国特色的"二元结构"的行政与刑事制裁体系,从而有效加强行政执法与刑事司法的衔接,进一步推动我国的刑事法治进程。

After the abolishment of the reeducation through labor system, we are facing an important task of reconsidering connecting the administrative enforcement to the criminal justice. Based upon the process of our criminal justice, and the long existing bottleneck of connecting the administrative enforcement to the criminal justice, including the defects exposed from the monistic structure of our criminal penalty system, this article puts forward a new construction of administrative criminal law independent of the criminal law, which is also called the special administrative penalties law. It also suggests that, the reason of abolishing the reeducation through labor system is not for its function, but for its questionable legality and procedure justice. Because of the monistic structure of the criminal penalties in our criminal law, we do not have "security measures" specially aimed at the potential damage offences, which reduces the effective function of connecting the criminal penalty to the administrative penalty. Furthermore, on the premise of our current crime constitution standard of quality and quantity, the obstacle to the connection between administrative enforce and criminal justice has long been existing, and in fact, it is necessary to have some buffers or transitions in the intersects, so as to effectively punish those administrative malfeasance which has criminal nature but cannot constitute a crime and its potential damage offence. Therefore, this article suggests a new thought of constructing the "Administrative Criminal Law" and the judicialization of the personal penalties and property penalties out of the criminal law, and the construction of the "sole judge" and "direct administrative appealling" in the future administrative criminal law(or referred to as the special administrative penalties law). The purpose of this article is to set up a dualistic administrative and criminal penalty system with Chinese characteristics, to strengthen the effective connection between administrative enforcement and criminal justice, and to promote the process of the rule of law in our country.