經濟刑法的歸責根據及其立法實現

以懲罰邏輯取代市場邏輯，會造成經濟刑法的法益保護困境，這與刑法理論對經濟刑法的歸責根據的認識有關。自然犯與行政犯各有其特殊的歸責根據，並不存在一種歸責理論“包打天下”的可能。行政犯的歸責根據是答責性的功能責任論，它將刑法的歸責根據借助於刑罰目的而轉化為功能性論述，在應罰性基礎上需要考察需罰性，實現了刑罰目的的功能化，能夠有效防止行政犯的過度擴張。法益恢復是功能責任論主張的再社會化意義上的特殊預防，具有拓展經濟刑法的出罪事由、破解刑事不法與行政不法的區分難題、滿足經濟刑法之法益衡量的需求等制度價值。經濟犯罪作為行政犯的種屬，其認定具有強烈的政策導向，更應當以功能責任論確定其歸責根據，把法益恢復的努力作為法定免責事由。法益恢復是免責事由，不應當將其作為個罪的構成要件對待。

Replacing market logic with punishment logic will lead to the dilemma of protecting the legal interests of economic criminal law, which is related to the understanding of the basis of imputation of economic criminal law in criminal law theory. Natural offenders and administrative offenders have their own special grounds for imputation, and there is no possibility that a theory of attribution can “conquer the whole world”. The basis of the attribution of responsibility for administrative offenders is the theory of functional responsibility, which transforms the basis of criminal law into a functional discourse with the help of the purpose of punishment, and needs to examine the necessity of punishment on the basis of punishability, so as to realize the functionalization of the purpose of punishment and effectively prevent the excessive expansion of administrative offenders. The restoration of legal interests is a special prevention in the sense of resocialization advocated by the theory of functional responsibility, which has institutional values such as expanding the causes of crime in economic criminal law, solving the problem of distinguishing criminal lawlessness from administrative lawlessness, and satisfying the needs of measuring the legal interests of economic criminal law. As a species of administrative offender, the identification of economic crimes has a strong policy orientation, and the basis for attribution of responsibility should be determined based on the theory of functional responsibility, and efforts to restore legal interests should be regarded as a statutory reason for exemption. The restoration of legal interests is a cause for exemption and should not be treated as a constitutive element of a crime.