“行刑衔接”视域下行政违法与刑事犯罪的界分

The Distinction between Administrative Offenses and Criminal Offenses from the Perspective of “Execution Linkage”

摘要: 我国行刑衔接机制的建设至今已有二十余年，但审视现状，“以刑代罚”、“有案不移”等问题却仍普遍存在。行政执法与刑事司法间的移送标准不清、界限不明，根本原因是没有理清行政违法与刑事犯罪的边界，实现二者的合理界分。以罪刑法定原则为指引，运用实质解释方法，综合考虑应罚性、需罚性，以“定罪–量刑–定罪”的循环审查体制反制不当定罪，以此保持刑法谦抑性，避免刑罚处罚僭越与前置至行政法领域，健全行刑衔接机制。

Abstract: China has been building the construction of the cohesion mechanism of execution for more than 20 years, but looking at the current situation, the problems of “penalties instead of punishment” and “no transfer of cases” are still prevalent. Administrative law enforcement and criminal justice transfer standards are unclear, the boundaries are unclear. The fundamental reason is not to clarify the boundary between administrative violations and criminal offenses, to achieve a reasonable division between the two. With the principle of statutory crime and punishment as a guideline, we apply the method of substantive interpretation, take into account the punishability and the need for punishment, and counteract improper convictions with the circular review system of “conviction-sentencing-conviction”, so as to maintain the modesty of criminal law, avoid the arrogation of penal punishment to the field of administrative law, and improve the construction of the cohesion mechanism of execution.