Selected Papers of The Jurist (法学家), Volume 3
Renmin Chinese Law Review: Selected Papers of The Jurist
Edited by Jichun Shi
Chapter 8: Must the judgment of illegality be conducted unitarily? From the perspective of the entity relationship between the criminal law and the civil law
It is a disputed theoretical question whether the judgment of illegality should be understood unitarily or be respectively understood among different legal fields, related to the combination between ‘considerations on questions’ and ‘considerations on systems.’ The criminal law is thought to be the last safeguard law, but that does not mean it should unitarily comply with some ‘front laws’ such as the civil law and should be monistically conducted on the judgment of illegality. The analysis of the entity relationship between criminal law and civil law reveals that the ‘quantity field of illegality’ specially possessed by the behavior type in criminal law makes ‘punishable illegality’ hard measure independently; the ambiguity of the judgment of illegality in civil law makes it hard to be referred to by criminal law; and the concept of ‘general illegality’ which maintains the identity of the judgment of illegality of criminal law and civil law has defects. The real meaning of the identity of legal order is the uniformity of value judgment and justice. Both the differences of the legislative purposes among different legal fields and the versatility of the behaviors of the judged objects decide that the illegality of criminal law can be judged relatively.
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