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在我国,由公权力实施的惩罚类型主要是行政处罚和刑事处罚,相应地,针对违反国家对经济活动规制行为的惩罚,也存在“惩罚二元制”。在法律实践中,如何区分经济性违法行为与经济犯罪是一个相当复杂的问题。结合规制理论,可以将“破坏社会主义市场经济秩序罪”区分为单纯规制犯和非单纯规制犯。两者都违反了国家对经济活动的规制;不同的是,非单纯规制犯还侵犯了个体性法益。在我国现有法治框架下,对于单纯规制犯的刑法立法应当持十分审慎的态度,对这类行为原则上以行政处罚为宜;对属于单纯规制犯的犯罪类型,在司法适用中,应通过目的解释方法限缩其实际适用范围。
In our country, the type of punishment imposed by the public authority is mainly administrative penalties and criminal penalties. Correspondingly, there is also a “dual system of punishment” for punishing violations of state regulation of economic activities. In legal practice, how to distinguish between economic violations and economic crimes is a rather complicated issue. Combined with the theory of regulation, we can distinguish the crimes of “undermining the order of the socialist market economy” as simply regulating criminals and non-pure regulators. Both violate the state’s regulation of economic activity; the difference is that the non-simple regulation also infringes upon the individual legal interests. Under the existing framework of the rule of law in our country, we should adopt a very cautious attitude towards the criminal law legislation of purely regulated criminals, and it is appropriate for such acts to be subject to administrative punishment in principle. For the types of crimes that belong to the simple regulatory criminals, in the judicial application, Aims to limit the scope of its practical application.