行政违法行为与行政犯罪界分研究

发布时间：2018-11-14 09:05

【摘要】：随着中国经济的发展,各种新的社会危害行为层出不穷。违法行为的社会危害性在不同的社会发展阶段其程度是不同的,这就必然会影响到处罚方式的选择。行政处罚和刑罚是我国对违法行为进行制裁最重要的两种方式,如何界定适用行政处罚还是刑事处罚对公民来说意义重大。当前无论在立法界还是实务界,其趋势都是刑罚至上,加之两者的立法衔接不协调,还有行政执法机关和司法机关之间的沟通不畅、在刑事立法时没有对行政违法行为与行政犯罪的界限进行明确划分等原因,导致大量的行政违法行为被纳入到刑法的调整范畴。本文旨在通过对行政违法行为与行政犯罪界分的研究,杜绝和防范冤假错案,切实尊重和保障人权和维护社会的公平正义。此外,在我国的现行法律体系中,行政违法行为与行政犯罪虽在理论上界限清晰,但是立法中存在竞合和冲突,在行政执法和司法实践中也存在诸多问题。对于行政违法行为与行政犯罪界分问题的争议涉及到立法和司法实践等方方面面,实务界和理论界对此也是十分关注。本文首先对行政违法行为与行政犯罪的概念和二者的关系进行了界定,分析行政违法行为与行政犯罪的差异性和联系性;然后总结分析了行政违法行为和行政犯罪在立法上和实践中存在的问题,这些问题在立法上主要是在调整范围上二者存在一定的竞合和冲突,法律规定不明确等,在实践中主要是二者衔接不通畅等;最后,对行政违法行为与行政犯罪界分提出了相关建议和具体标准,第一是在立法上完善行政违法行为与行政犯罪界分存在的缺陷:主要是在立法上明确界定行政违法行为与行政犯罪的界限、科学立法以消除二者的竞合和冲突、合理的设置刑罚及严格限制行政违法行为犯罪化;第二是在实践中有效应对行政违法行为与行政犯罪的界分:主要是采取以司法认定优先为主、行政认定优先为例外,完善责任竞合的处理机制和案件的移送制度,明确权力界限及完善监督机制。
[Abstract]:With the development of Chinese economy, all kinds of new social harm behaviors emerge endlessly. The social harmfulness of illegal acts is different in different stages of social development, which will inevitably affect the choice of punishment. Administrative punishment and penalty are the two most important ways to sanction illegal acts in our country. How to define the application of administrative punishment or criminal punishment is of great significance to citizens. At present, whether in the legislative or the practical circles, the trend is that the penalty is paramount, coupled with the incongruity of the legislative convergence between the two, and the poor communication between the administrative law enforcement agencies and the judicial organs. In criminal legislation, there is no clear division between administrative illegal acts and administrative crimes, which leads to a large number of administrative illegal acts being brought into the scope of adjustment of criminal law. The purpose of this paper is to put an end to and prevent unjust and false cases, to respect and protect human rights and to safeguard social fairness and justice through the study of the division between administrative illegal acts and administrative crimes. In addition, in the current legal system of our country, although the limits of administrative illegal acts and administrative crimes are clear in theory, there are competing and conflicts in legislation, and there are also many problems in administrative law enforcement and judicial practice. The disputes about administrative illegal acts and administrative crimes are related to legislation and judicial practice and so on, and the practical and theoretical circles are also very concerned about this. This paper first defines the concept and the relationship between the administrative illegal act and the administrative crime, and analyzes the difference and connection between the administrative illegal act and the administrative crime. Then it summarizes and analyzes the problems existing in the legislation and practice of the administrative illegal acts and administrative crimes. These problems are mainly in the scope of adjustment and there are some conflicts and conflicts between the two, and the legal provisions are not clear and so on. In practice, the connection between the two is not smooth; Finally, the author puts forward the relevant suggestions and specific standards for the division of administrative illegal acts and administrative crimes. The first is to perfect the division between administrative illegal acts and administrative crimes in legislation: mainly to clearly define the limits of administrative illegal acts and administrative crimes in legislation, and to scientifically legislate in order to eliminate the competition and conflict between the two. Setting the penalty reasonably and strictly restricting the crime of the administrative illegal act; The second is to effectively deal with the demarcation between administrative illegal acts and administrative crimes in practice: mainly to adopt judicial recognition priority, administrative recognition priority as an exception, and perfect the handling mechanism of competing responsibilities and the transfer system of cases. Clear the limits of power and improve the supervision mechanism.
【学位授予单位】：安徽财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.1

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