《刑法》第362条一般被视为第310的拟制规定,然而,该两条规定所保护的法益并不相同。并且,第362条的表述将“违法”行为也包括在刑法规制的范围内,实际上并不符合罪刑法定原则。但是,将第362条解释为注意规定,则实现了法条之间的协调,也恰好体现了刑法的谦抑性。 Article 362 of the Penal Code is generally regarded as the fictitious provision of Article 310. However, the legal interests protected by these two provisions are not the same. Moreover, the expression of Article 362 also includes “illegal ” behavior is also included in the scope of criminal law, in fact, does not meet the statutory principle of crime. However, the interpretation of Article 362 as a rule of attention has resulted in the harmonization of laws and regulations, which also shows the modesty of criminal law.