行政刑法的基本立场——以行政责任和刑事责任的统一为视角

从对行政责任和刑事责任理念的梳理来看,二者对行政刑法责任具有相当影响,但行政刑法责任是行政责任和刑事责任之有机统一的观点具有表面性和形式化。行政刑法产生于市民刑法的背景使得行政刑法的责任必须在市民刑法的语境下进行解读,只有如此,才能真正厘清行政刑法责任之限制权力和人权保障、刑罚均衡和人道之基本立场。在市民刑法成为我国刑法应有转向的背景下,行政刑法应构成刑法的主体,刑法的转向实际上在相当程度上就是转向行政刑法的过程。我国经济犯罪形式的行政刑法之完善亦应在市民刑法理念下进行。

The Basic Standpoint of Administrative Criminal Law --from the perspective of unity of administrative responsibility and criminal responsibility

From the understanding of concepts of administrative responsibility and criminal responsibility, both of them have considerable influence on administrative criminal law responsibility. But the opinion that administrative criminal law responsibility is organic unity of administrative responsibility and criminal responsibility is superficial and formalized. Administrative criminal law responsibility should be interpreted under the context of civil criminal law because administrative criminal law comes out of civil criminal law. Only in this way, can we clarify the basic standpoint of restrictive power and human rights protection of administrative criminal law responsibility, balance of penalty and humanity. On the background of civil criminal law＇ s conversion into criminal law in China, administrative criminal law should constitute principal part of criminal law, and the conversion of criminal law is mainly a process of converting into administrative criminal law to a considerable degree. Administrative criminal law in form of economic crime in China should also be perfected in the concept of civil criminal law.