行政犯中关于“行政违法性”与“刑事违法性”的衔接问题在学界引起广泛的讨论,刑事案件审理实务中存在行政犯的违法性仅以前置法为判断依据,忽略其刑事违法性的现况。行政违法性与刑法违法性并非只有“量”的差异,关键差异在于保护的法益不同。前置法的违法性对于行政犯构成要件的成立属于必要不充分条件,在行政违法性的基础上仍需要以法益为基础考量刑法本身的违法性。从上述行政犯应然的判断角度出发,胡某艳生产、销售伪劣产品罪一案,仅因为其生产、销售的假药仅违反了行政法,难以直接确定其生产、销售的兽药属于刑法上的假兽药或者伪劣产品,认为其行为不成立犯罪更为妥当。The problem of the connection between “administrative illegality” and “criminal illegality” in administrative offenses has caused wide discussion in the academic community. In the trial practice of criminal cases, the illegality of administrative offenses is only based on the preposition law, ignoring the current situation of criminal illegality. The difference between administrative illegality and criminal illegality is not only in “quantity”, but also in the difference of legal interests. The illegality of the preposition law is a necessary and insufficient condition for the establishment of the constitutive elements of administrative offenses. On the basis of administrative illegality, it is still necessary to consider the illegality of criminal law itself on the basis of legal interests. From the above judgment angle of administrative offenses, in the case of Hu’s production and sales of fake and inferior products, it is difficult to directly determine that the veterinary drugs she produces and sells are fake veterinary drugs or fake and inferior products in criminal law, and it is more appropriate to consider that her behavior is not a crime.
