行政犯違法性判斷的從屬性和獨立性研究

The Dependence and Independence of the Unlawfulness Judgement in Administrative Crime

對於行政犯而言，存在著行政不法與刑事不法類型的重疊或交叉，兩者之間的界限模糊不清，導致現實中行政執法與刑事司法的銜接不暢。以往的研究或過於抽象籠統，或糾纏於各自要素上的細枝末節，無法真正厘清行政不法與刑事不法的界限。在法益保護主義的前提下，質的差異論和量的差異論並非完全對立。前置性的行政不法對行政犯的成立而言雖然不可或缺，但行政法與刑法在規制範圍、規制目的上的差異，決定了司法需要根據法益侵害的性質分別運用質的差異和量的差異妥當地劃定行政不法與刑事不法的範圍。在行政不法與刑事不法的法益侵害性質相異或者行政不法侵害法益過於抽象的場合，應直接依據質的差異論發揮法益對罪與非罪的界分功能；而在行政不法與刑事不法的法益侵害性質相同時，則依據刑法的從屬性性質以法益侵害的程度即量的差異對兩者實現有效的區分和銜接。

For the administrative crime, the criminal and the administrative unlawfulness are overlapping with each other. The distinction is too vague to connect the criminal and administrative law enforcement fluently. The previous studies in this area are either too abstract or too detailed, which are not able to draw a clear boundary between the criminal and the administrative unlawfulness. In light of the protection of legal interest, the theory of qualitive difference and the theory of quantitive difference are not totally incompatible. The administrative unlawfulness is although necessary for the administrative crime. However, the administrative and the criminal law have different purpose and range of regulation, which means that the practice should use both the theory of qualitive and quantitive difference to distinguish the criminal and the administrative unlawfulness according to the infringed legal interest in concrete situations. The theory of qualitive difference will distinguish the crime and the non-crime, when the threatened legal interest by a criminal offence axe different from the threatened legal interest by an administrative offence. It is compatible with the theory of quantitive difference to distinguish and connect the administrative and the criminal offence, when both of them threaten the same legal interest.