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要求在办理经济犯罪案件中出具行政认定意见,是近年来司法实践中新出现的现象,它关系到对行政犯的行政违法性和刑事违法性的理解。行政认定的实质是行政违法性认定,虽可由行政主体出具,但评价其能否作为犯罪构成要素的是司法机关。司法机关既可采信,也可按照开放的犯罪构成要求,依据刑法条款及其指示的行政法律法规,直接进行实质的行政违法性和刑事违法性判断,而不简单地迷信于非议颇多的行政认定。在行政犯的刑事违法性判断中,行政认定可以缺位,行政违法性判断必不可缺。以行政认定作为刑事认定前置程序的弊端明显。
The requirement of issuing administrative opinions in the handling of economic crime cases is a new phenomenon in judicial practice in recent years. It concerns the understanding of administrative illegality and criminal illegality of administrative criminals. The essence of administrative recognition is the identification of administrative illegality. Although it can be issued by the administrative body, it is the judiciary that assesses whether or not it can constitute an element of crime. The judiciary can take credit either directly or according to the constitutional requirements of open criminal law and directly make substantive administrative illegality and criminal illegality judgment according to the provisions of the criminal law and the administrative laws and regulations as directed thereby, without simply superseding superstitious administrative departments Certified. In judging the criminal illegality of administrative criminals, the administrative determination can be absent, and the judgment of administrative illegality is indispensable. The disadvantages of preemptive procedure with administrative determination as criminal cognition are obvious.