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刑罚应处罚的危害行为的范围,属于刑事政策的话题。坚持现行刑法关于犯罪的定义,还是将治安违法行为和部分行政处罚行为一并归入刑法中的犯罪当中,是值得认真研究的基础性问题。将何种行为定位为犯罪,实际上涉及到刑罚权的边界问题,而刑罚权的运作受到国家政权组织形式、法治模型选择、公权力制约以及法治的适宜性等多方面的共同作用。无论从分权的角度,还是基于法治的判断,乃至文化、国情等维度进行衡量,现行刑法对犯罪定义的基础性界定,仍具有其合理性和正当性。
Penalties should be punished for the scope of the harmful acts, the topic of criminal policy. Insisting on the definition of crime in the current criminal law, or putting the law and order and part of administrative punishment together in the criminal law of criminal law, it is a basic issue deserving to be seriously studied. The criminalization of what kind of behavior will actually involve the boundary issue of the right of punishment, and the operation of the right of punishment is influenced by the forms of the state political power, the choice of rule of law model, the restriction of public power and the suitability of the rule of law. Whether from the perspective of decentralization or from the judiciary based on the rule of law or even from the perspective of culture and national conditions, the basic definition of criminal definition in current criminal law still has its rationality and legitimacy.