论行政处罚与刑事处罚的衔接机制

发布时间：2018-12-08 17:35

【摘要】：法治为经济建设提供保驾护航的作用。伴随我国社会主义市场经济的大发展大繁荣,法治建设中的各种瘸腿现象开始显现,特别是在行政处罚与刑事处罚衔接机制上表现尤为突出,严重影响了对破坏社会主义市场经济秩序犯罪的打击力度和效果。解决这些问题,建立通畅高效的行政处罚与刑事处罚衔接机制,成为整顿和规范市场经济秩序,建立和完善社会主义市场经济体制的题中之义。从理论上看,目前学界对诸如行政违法与行政违法的界限划分、行政处罚与刑事处罚能否双重适用以及两者的处理顺序等一系列关乎行政违法与行政违法之间关系的核心问题尚存争议。这些问题又进一步反映到立法和司法实践层面上,造成诸多混乱。在立法上,虽然我国从2001年开始整顿和规范市场经济秩序工作起,就明确提出了建立行政处罚与刑事处罚衔接机制的概念,但直到今天,依然没有专门的法律对其进行规范,而是只能散见在一些单行行政法规,或是少数单行法律涉及其中个别规定等。立法上的缺陷导致实践中的诸多问题,如据统计发现,近年来破坏社会主义市场经济秩序、妨害社会管理秩序以及知识产权领域的违法犯罪案件不断增多,行政处罚机关查处的案件也随之逐年增长,但移送司法机关追究刑事责任的案件却明显不多,移送后最终追究刑事责任的案件也较少,还存在各部门信息沟通不畅、案件移送不及时、协作配合不规范等问题,更严重的是,致使“以罚代刑”现象比较普遍,成为一大顽症。因此,要加强完善行政处罚与刑事处罚衔接机制的相关立法、建立信息共享机制、强化案件转移、加强立案监督、提高惩治职务犯罪力度等工作,从根本形成打击合力,依法惩治犯罪分子,方能保障社会主义建设事业顺利进行。
[Abstract]:Rule of law provides the function of escort for economic construction. With the great development and prosperity of the socialist market economy in our country, all kinds of lame legs in the construction of the rule of law begin to appear, especially in the connection mechanism of administrative punishment and criminal punishment. Has seriously affected to the socialist market economy order crime attack strength and the effect. To solve these problems and to establish a smooth and efficient linking mechanism between administrative punishment and criminal punishment has become the key to rectifying and standardizing the order of market economy and establishing and perfecting the socialist market economic system. Theoretically, at present, the academic circles divide the boundaries between administrative violations and administrative violations. Whether the administrative penalty and the criminal punishment can be applied double and the order of handling of the two are a series of core issues related to the relationship between the administrative violation and the administrative violation. These problems are further reflected in the legislative and judicial practice, resulting in a lot of confusion. In terms of legislation, although our country has clearly put forward the concept of establishing a link mechanism between administrative punishment and criminal punishment since the beginning of rectifying and standardizing the order of the market economy in 2001, until now, there is still no special law to regulate it. But only scattered in some separate administrative regulations, or a small number of separate laws involving individual provisions and so on. The defects in legislation lead to many problems in practice. For example, according to statistics, in recent years, the violation of the socialist market economic order, the obstruction of the social management order and the increasing number of illegal and criminal cases in the field of intellectual property, The number of cases investigated and dealt with by administrative punishment organs has also increased year by year. However, the number of cases transferred to judicial organs to investigate criminal responsibility is obviously small. There are also fewer cases of final investigation of criminal responsibility after transfer, and there is still a lack of information communication among various departments. The transfer of cases is not timely, cooperation and cooperation is not standardized, and more serious, the phenomenon of "punishment by punishment" is more common, becoming a stubborn disease. Therefore, it is necessary to strengthen the relevant legislation to perfect the link mechanism between administrative punishment and criminal punishment, to establish a mechanism for information sharing, to strengthen the transfer of cases, to strengthen supervision on filing a case, to increase the intensity of punishing job-related crimes, and to fundamentally form a resultant force of attack. Only by punishing criminals according to law can we guarantee the smooth progress of socialist construction.
【学位授予单位】：延边大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.1

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