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随着我国法制建设的发展,立法数量越来越多,法律相互冲突打架的情况越来越严重。法律之间的矛盾冲突,已成为损害公民、法人和社会组织权利,妨碍法制建设的突出问题。一般意义上的法律冲突,是指“两个或两个以上的不同法律同时调整一个相同的法律关系,而在这些法律之间产生矛盾的社会现象。一般说来,只要各法律对同一问题作了不同规定,而当某种事实又将这些不同的法律规定联系在一起时,法律冲突便会发生”[1]。法律冲突是法治的一种消极的因素,它的存在会极大地损害法律的尊严,造成法律实施过程中的混乱,削弱法律实施的效果。“法律将容忍一种实际困难,而不能容忍不一致性和逻辑上的谬误。”[2]因此,立法者在制定法律规范时,应尽量避免法律之间的冲突,保证法制的统一和尊严。由于我国当前在立法技术、立法程序、立法主体等问题上存在许多不足,因而法律冲突现象在我国法律体系中并不鲜见。《治安管理处罚法》出台之后,刑法与治安管理处罚法的冲突很快成为理论界和实务界关注的焦点之一。本文旨在围绕这一问题进行追根溯源的探寻,进而提出协调二者的
With the development of the legal system in our country, there are more and more legislatures, and the conflicts between laws and conflicts are getting more and more serious. The contradictions and conflicts among laws have become prominent issues that undermine the rights of citizens, legal persons and social organizations and hinder the construction of the legal system. In the general sense, the law conflicts mean that “two or more different laws adjust one and the same legal relationship at the same time, and there is a contradictory social phenomenon between these laws. Generally speaking, as long as the laws on the same issue Different provisions have been made, and when certain facts in turn tie these different legal provisions together, a legal conflict can occur ”[1]. Conflict of law is a negative factor of the rule of law. Its existence will greatly damage the dignity of the law, cause confusion in the process of law enforcement, and weaken the effect of law enforcement. "[2] Therefore, legislators in the formulation of legal norms, should try to avoid conflicts between laws to ensure the unity of the legal system and dignity. Due to the current problems in legislative technology, legislative procedure and legislative body, there are many problems in our country. Therefore, the phenomenon of legal conflicts is not uncommon in our legal system. After the law on public security management was promulgated, the conflict between the criminal law and the law on public security management soon became one of the focuses of theorists and practitioners. The purpose of this article is to explore the issue of tracing back and forth to this issue, and then propose to reconcile the two