行刑銜接機制的基本問題

行刑銜接包括由“行到刑”、由“刑到行”等環節的銜接以及對各種銜接的監督。由“行到刑”的銜接旨在克服“以罰代刑”現象。“以罰代刑”並非指所有對構成犯罪但不予刑罰處罰而只作行政處罰的情形，而僅指那些情節嚴重應當給予刑罰處罰的犯罪行為但只作行政處罰的情形。對於沒有達到刑事證明標準，以及犯罪情節輕微不需要科處刑罰的案件，應當允許代之以行政處罰，而且，公安機關與行政執法機關都可能直接適用《刑法》第37條給予行政處罰。由“刑到行”的銜接旨在克服“以刑替罰”現象，為此，在行刑銜接工作方面，刑事追訴機關不能輕易先行介入，應當摒棄刑事絕對優先的觀念與做法，行政執法機關應當遵循由行到刑的移送標準，檢察機關應當加強對刑事立案的監督。

The connection between administrative procedure and criminal procedure includes the connections from administrative procedure to criminal procedure, from criminal procedure to administrative procedure, and the supervision of various connections, etc. The connection from administrative procedure to criminal procedure aims to overcome the problem of substituting administrative penalties for criminal punishment. Substituting administrative penalties for criminal punishment does not refer to all circumstances that constitute crimes but are only given administrative penalties instead of criminal punishment, but only refers to those circumstances that are so serious as to meet the standards of the criminal punishment but only the administrative penalties are given. For those cases that do not reach the standard of crimes and where the circumstances are minor which do not need to impose criminal punishment, using the administrative penalties in replacement of criminal punishment should be allowed. Moreover, both the public security organs and the administrative agencies may directly apply Article 37 of the Criminal Law to impose administrative penalties. The connection from criminal procedure to administrative procedure aims to overcome the problem of substituting criminal punishment for administrative penalties. Regarding the connection between administrative procedure and criminal procedure, criminal prosecution agencies should not intervene in all cases before administrative agencies, and we should abandon the idea of the absolute priority of the criminal procedure. The administrative agencies should follow the transfer standards from administrative procedure to criminal procedure, and the prosecutors should enhance the supervision of docketing of criminal cases.