Between Procedure And Substance:Research On The Issues Of Criminal-civil Intersection In Property Crime

Although criminal law and civil law have their own legislative purposes and normative structure,but in recent years,with the high incidence of property crimes,legal theory and practice have focused on the criminal-civil intersection problems in property crimes.At present,the academic circle mainly focuses on the procedural aspects of the criminal-civil intersection problems in property crimes,although the substantive aspects are slightly involved,but there is always a lack of due attention.However,the substantive aspect is an important part of the criminal-civil intersection problems in property crime,whose existence not only highlights the particularity of the subject itself,but also reflects the two-way interaction between the procedural dimension and the substantive dimension under the subject.In view of this,this paper focuses on the study of the criminal-civil intersection problems in property crimes.According to the basic logic of the procedure from procedure to entity,the specific problems are typed into conceptual framing,illegal judgment,normative convergence and procedural reflection,and discussed them separately.Firstly,the criminal-civil intersection is essentially a substantive issue,so the choice of procedure serves to solve substantive problems.Starting from the substantive issues,we can classify the criminal-civil intersection cases of property crimes into two categories,namely "pre-requisite relationship" and "conflict relationship".According to whether the treatment of substantive problems is influenced by the procedure,the trial mode of the property crime cases can be divided into three types,that is “criminal first civil second”,“civil first criminal second” and “separation of criminal and civil”.Among them,the former two modes correspond to the substantive problem dealing with the criminal-civil intersection cases in property crimes affected by the procedure successively,and the third mode corresponds to the substantive problem dealing with the criminal-civil intersection cases in property crimes not affected by the procedure successively.Procedure and substance are two-way interactive relations.The treatment effect of substantive issues can reflect whether the procedural arrangements are reasonable or not.Through procedural disputes,specific substantive issues in the criminal-civil intersection of property crimes can also be derived.Secondly,it is an ideal way to resolve the divergence of property concept between criminal and civil on the basis of the concept of property in civil law.It is neither necessary nor realistic to construct a new concept system of property according to the characteristics of criminal law itself.The main purpose of building the dual standard of property concept is to expand the criminal circle in the name of protecting the legal interests of property,but it is difficult to overcome two fundamental drawbacks,that is,to give legitimate basis for illegal possession will cause permanent trauma to the overall legal order,and to expand the criminal circle through judicial channels will melt the external control function of the concept of legal interests.The tension between departmental laws is inevitable in any legal system.Taking civil law as the basis of defining the scope of property concept in criminal law is not to impose shackles on criminal law,but to allow criminal law to play an appropriate independent evaluation role on the basis of following the overall legal order.The fundamental purpose of doing so is to reach a consensus on property concept between criminal law and civil law.Thirdly,to delimit the boundary of property crime,we should not only find the basis from the angle of self-restraint of criminal law,but also find the reason in the preceding norms.The theoretical essence of the debate between "unity" and "pluralism" in the judgment of illegality is to establish the legal status of the preceding norms on the basis of insisting on the unity of legal order.That is to say,the judgment of criminal illegality has dual nature.Violation of the preceding norms is the precondition of the judgment of criminal illegality.The significance of the division between mala in se and mala prohibita lies in that the essence of the illegality of mala in se is the infringement of legal interests,and its own evil naturally possesses the essence of illegality.However,the prohibition of evil by mala prohibita is a violation of legal norms,which must be reflected by the corresponding legal norms.Accordingly,mala in se and mala prohibita have different illegality structures.That is to say,in mala in se,violation of pre-norms is the premise fact of its constituent elements,which must be determined before the judgement of its constituent elements.In mala prohibita,violation of pre-norms is the content of the judgement of its constituent elements.Thus,the method of dividing the boundary between natural property offenders and criminals is to prevent its improper expansion by identifying the substance of the content of property offenders' legal interests;the method of dividing the boundary between legal property offenders and criminals is to start from reflecting on the mode of "punishing before the people",and to avoid its degeneration into "pocket crime" by strictly explaining the preceding norms as its constituent elements.Again,there are two ways to fill in the loopholes of criminal norms in property crimes: one is to construct rules to fill in the loopholes of criminal norms from the perspective of doctrine,so as to provide a logical basis for solving typological problems;the other is to summarize the experience of filling in the loopholes of criminal norms from the perspective of empiricism,so as to provide specific reference for individual cases to resolve differences.The two paths are different and complementary.To deal with the loopholes of criminal norms in property crimes,we should start with the causes of loopholes.Accordingly,it can be divided into the loopholes of criminal norms based on legislative reasons and the loopholes of criminal norms based on judicial interpretation,and then two corresponding solutions can be formed: for filling the loopholes of criminal norms based on legislative reasons,the path of doctrine can only alleviate the loopholes but not completely eliminate them,and the ideal way is to make necessary adjustments to the content of legislative provisions.To fill the loopholes of criminal norms based on judicial interpretation,we should change the Realistic Orientation of judicial interpretation as a "sub-law",reduce the dependence of judicial practice on judicial interpretation,and prohibit judicial interpretation from breaking through the boundaries of statutory provisions in the name of filling the loopholes.Finally,the Criminal Procedure Law is not a "damage filling law",and the protection of legal interests is not necessarily biased toward the interests of victims.To clarify the basic relationship between civil and criminal litigation systems is the key to deal with intersectioncase between criminal and civil procedures.Although the relief of private property rights can be more effectively guaranteed by means of public power,it will undoubtedly cause irreparable harm to the substantive country ruled by law by means of overdraft,incidental litigation and reversal of the logic of adjudication.The former results in the self-contained system of incidental litigation,which disintegrates the civil litigation system already constructed;the latter leads to the over-elevation of the victim's interests,which makes the concept of the legitimacy of the state's right to seek punishment weighed in criminal proceedings.To correctly define the basic relationship between civil litigation and criminal litigation system,we must clearly recognize the core difference between civil litigation based on corrective justice and criminal litigation based on distributive justice.We should lock the value balance of the relationship between the state and the offender,the offender and the victim in the criminal-civil intersection case in their respective contexts,and establish the main solution of criminal litigation.The basic concept of the relationship between the decisive state and the criminal opens the gap between the " pre-requisite relationship " and the criminal-civil intersection case,and avoids equating the "pre-emptive relationship" with the "criminal first civil second".