The Research On The Dualistic Paradigm Of Anti-value Acts

In the criminal law of Germany, Japan, and even Taiwan area, there has always been an opposition between anti-value acts and anti-value results about the origin of illegality. With the introduction and wide spread of German and Japanese theory of criminal law, the theory of anti-value acts and anti-value results is becoming a hotspot in criminal law theory circles of China. Our mainland scholars are also paid their attention to the two theories, but no schools formed yet. While the anti-value results theory is the general theory in China.The theory of anti-value results is limited to judge the value of factual, visualized consequences after acts, but has no consider about the actor and the subjective intention during the action, which will inevitably lead to the violation of criminal law theory vs. the judicial practice and the common value, and may lessen the authority of criminal law. In China, some scholars have tried to advocate the theory of anti-value acts according to China's historical tradition and the current situation. However, the theory of anti-value acts has disadvantages as well.Therefore, this paper has gone into a deep and systemic research on the theory of anti-value acts and anti-value results, and deliberates the illegality dating back to the origin through an objective view to restore what anti-value act and anti-value result are. On that basis, the author believes that the dualistic paradigm of illegality based on anti-value act is the most proper theory to current China. This paper considers that anti-value act is a common element in the illegality structure, while anti-value result is the special one. Each established crime must have anti-value act, or it has no illegality. While anti-value result has different functions in different kinds of crime, it hasn't the universality. The dualistic paradigm of anti-value acts based on anti-value act can overcome the disadvantages of unitary theory of anti-value act and anti-value result, and can well solve the problems like the foundations of elimination of misfeasance, occasional defense( occasional necessity), the punishment principle of preparatory crime and impossible attempt, etc.