如今司法实践在处理行政犯时,往往过度依赖前置性的行政法律,忽略违法性的独立判断,认定行政违法为犯罪行为,扩大行政犯的成立范围,造成刑罚权的扩张,违背刑法谦抑性的原则要求。本文旨在探讨行政犯的违法性判断,分析行政犯概念及其双重违法性,并提出在司法实践中如何准确界定行政犯的违法性的具体路径。为了避免扩大刑法入罪范围、滥用刑法,稳固刑法权威性,应当以品质差异说为指导,以刑法的保护目的为出发点,以法益侵害性为指导原则,进行行政犯违法性的具体判断。通过这种方式,可以确保刑罚的法定性,避免行政违法多数上升为刑事违法,从而保护法益并发挥刑法的保护功能。Today’s judicial practice, when dealing with administrative offenders, often relies too much on preemptive administrative laws, ignores the independent judgment of illegality, identifies administrative violations as criminal acts, expands the scope of administrative offenders, leads to the expansion of penal power, and violates the requirements of the principle of the modesty of criminal law. This article aims to explore the illegality judgment of administrative offenders, analyze the concept of administrative offenders and their dual illegality, and propose a specific path on how to accurately define the illegality of administrative offenders in judicial practice. In order to avoid expanding the scope of criminal law, abusing the criminal law, and stabilizing the authority of criminal law, the specific judgment of the illegality of administrative crimes should be made based on the theory of quality differences as the guide, the protection purpose of the criminal law as the starting point, and the infringement of legal interests as the guiding principle. In this way, the legality of the penalty can be ensured, and most administrative violations can be prevented from being upgraded to criminal violations, thereby protecting legal interests and
