行政许可制度的刑事保障问题探讨

刑法对违反行政许可制度行为的规制,首先要求行政法与刑事法均具有明确规定。关于两种法律规定如何衔接,不仅要从字面文义的角度进行理解,更应从行政与刑事立法的根本目的考虑,才能准确界定被许可人违反许可规定所应承担的法律责任。基于行政法所具有的服务功能,行政许可虽然形式上体现为公权力对私权利的控制,但实际上是为保障权利更好的行使,因此应淡化许可的禁止色彩,不能简单参照行政许可的立法设定范围来确定刑事入罪的范畴。

Discussion on Problems of Criminal Protection in Administrative License System

The regulation for the violation of Criminal Law to administrative license system firstly required to make specific provision both in Administrative Law and Criminal Law. We should understand how the two laws link up not only in literal but also in its fundamental goal of administrative and criminal legislation, by which we can accurately define the legal responsibility about the violation of administrative license system. Basing on the service function of Administrative Law, the administrative license embodied formally the public power from the control to private rights. In fact, it ensured rights in the better performance. Therefore, we should downplay the ban characteristics of administrative permission, and not simply determine the scope of criminal crime referring to the scope of legislation of administrative license.