附属刑法:实现刑法参与国家治理的有效形式

目前我国立法机关存在将有关行政法等部门法律直接引向犯罪的趋势。这不仅导致了附属刑法的弱化,甚至使附属刑法的作用被忽视,还对我国司法实务的操作造成了不便,将本不该由刑法规制的行为错误地划分为犯罪。为了解决这个问题,有学者开始关注我国并不存在的附属刑法。附属刑法本身具有实现维系刑法典稳定、衔接刑法与各部门法、为刑法提供持续性保证的功能。其具有实在内容、又以刑法典为基础和本源,故附属刑法是可以修正刑法典并达到刑法对社会治理作用的有效形式。

Accessory Criminal Law:An Effective Form of Achieving Criminal Law to Participate in National Governance

At present,the legislature of China has a tendency to directly introduce laws related to administrative law and other departments to crimes,which not only leads to the weakening of the accessory criminal law,but also forces the role of the subsidiary criminal law to be neglected,and also causes inconvenience to the operation of judicial practice in China.It is not a crime to be classified as a crime by criminal law.To solve this problem,some scholars have begun to pay attention to the accessory criminal law that does not exist in China.It has the function of maintaining the stability of the criminal code,connecting the criminal law and various departmental laws,and providing a continuous guarantee for the criminal law.Thus the accessory criminal law has its substantive content and is based on the criminal code and its origin.Therefore,the subsidiary criminal law is an effective form that can amend the criminal code and achieve the role of criminal law in social governance.