避免把行政违法当犯罪处理，是行政犯违法性问题的落脚点。行政犯具有双重违法性是学界的共识，但行政犯定义本身颇具争议性，实有必要重构。照应我国实定法制度，行政犯应被界定为违反行政法上义务（行政违法）侵犯中间性法益的犯罪（刑事违法），制裁竞合性、行刑衔接性是其两点特征。质·量差异理论是分散式刑法立法、刑行分立法语境下，讨论刑事不法与行政不法之观念论差异的立法政策理论。我国学界对该理论的运用比较随意，对号入座的各观点存在的共通问题是立法论、解释论的视角混淆，以及本体论、判断论的方法错位。立于我国统一化刑法立法、刑行衔接式法制度，站在解释论立场，应当讨论的是行政犯与其“对应行政违法”的实定法差异，并以此作为确定行政犯违法性内容的统率标准。量的差异贴近我国立法现实，有合理存在根据；“量差”比“质差”更具包容性与解释力；量差说也是具有“理论潜力”的一种学说。“量差”前提下，从违法判断论争议格局中总结出的相对性判断立场，要运用到行政犯构成要素的具体解释中才更具实益。理论与实务的“痛点”集中在行政规范要素和行政行为要素的判断。该问题处在刑法与行政法交错地带，在视角和方法上，不应做刑法理论的单向推演，也要行政法理论的参与互动，理论主张也要在典型、类型案例分析中得到检验。对于行政规范要素，要检讨的问题是其可否根据行政法上的界定被具体化，对此，不应预设刑法、行政法的对立立场，而应在刑法上的法益与行政上的目的间进行一定衡量，只有在两者明显不合致的场合才得以法益保护为理由做刑法上的独自解释。对于行政行为要素，首先要检讨的是违法行政行为仍否为行政犯的成立前提，但不必空泛讨论行政行为公定力得否拘束刑事审判，而应综合分析、类型处理，个别地检讨行政犯构成要件符合性、违法性问题。然后要检讨的是三种行政行为要素的体系定位与具体适用：（1）行政许可应定位为构成要件阻却事由，权利滥用取得的行政许可属一般违法程度的行政行为；（2）行政处罚只能是影响责任刑的责任要素，应对刑法中的行政处罚予以实质解释，防止“违法不足责任补”的不良现象；（3）行政命令则属于违法要素，司法适用中应具体判断行政命令是否“提示”了行为的法益侵犯性。

It is the foothold of discussing the illegality of administrative offense to avoid treating administrative offense as a crime. It is a consensus that administrative crime has double illegality, but the definition of administrative crime itself is controversial, so it is necessary to reconstruct it. According to China's substantive law system, administrative crime should be defined as the crime of violating the obligations of administrative law (administrative violation) and infringing legal interests (criminal violation). The concurrence of sanctions and the convergence of execution are its two characteristics.The theory of quality and quantity difference is a legislative policy theory to discuss the difference between criminal lawlessness and administrative lawlessness in the context of decentralized criminal law legislation and separation of punishment and execution. Scholars in our country use this theory witout suficient prudence. The common problems of different views are the confusion of the perspectives of legislation and interpretation, and the dislocation of the methods of ontology and judgment. Based on the unified legislation of criminal law and the system of linking criminal law with execution in our country, and from the standpoint of interpretation theory, what should be discussed is the difference between administrative crime and its "corresponding administrative violation" in substantive law, which should be taken as the command standard to determine the illegality of administrative crime. The difference of quantity is close to the reality of our country's legislation, and there is a reasonable basis for its existence; "quantity difference" is more inclusive and explanatory than "quality difference"; the theory of quantity difference is also a theory with "theoretical potential".Under the premise of "quantity difference", the relative judgment position summarized from the dispute pattern of illegal judgment theory should be applied to the specific explanation of the constituent elements of administrative crime. The "pain point" of theory and practice focuses on the judgment of the elements of administrative norms and administrative behavior. This problem lies in the crisscross zone of criminal law and administrative law. In terms of perspective and method, we should not make one-way deduction of criminal law theory, but also participate in the interaction of administrative law theory. Theoretical propositions should also be tested in the analysis of typical and type cases. As for the elements of administrative norms, the question to review is whether they can be specified according to the definition of administrative law. For this, we should not presuppose the opposite position of criminal law and administrative law, but should weigh the legal interests of criminal law and the administrative purpose. Only when the two objects are obviously incompatible can we make an independent interpretation of criminal law on the basis of the protection of legal interests. For the elements of administrative act, the first thing to review is whether the illegal administrative act is still the premise of the establishment of administrative crime. However, it is not necessary to discuss whether the public power of administrative act can restrict the criminal trial. Instead, it is necessary to comprehensively analyze and deal with the types, and individually review the conformity and illegality of the constituent elements of administrative crime. Then we need to review the system positioning and specific application of the three elements of administrative behavior: (1) administrative license should be positioned as the cause of lacking the crime constituent elements, and the administrative license obtained by abuse of rights belongs to the administrative behavior of general illegal degree; (2) administrative punishment can only be the responsibility element that affects the criminal responsibility, so we should give substantive explanation to the administrative punishment in the criminal law, so as to prevent the phenomenon of "responsibility completing the illegality " ;(3) administrative order is an illegality element, so we should judge whether the administrative order "prompts" the infringement of legal interests in judicial application.