A Study On The Illegality Of Punishment

The theory of culpable illegality is the study of the substantiality of the illegality in the criminal law. It proposes that illegality has different degrees. The theory of culpable illegality is based on the idea of the modest restraint of criminal law. It pursues the goal of preventing the abuse of the state’s power with regard to criminal law. As to addressing each case, the theory seeks for propriety. The culpable illegality theory explains that an offense is punishable by the harsh criminal law, and that the different degrees of illegality have their corresponding penalties, both qualitatively and quantitatively. In the Japanese criminal law, though there are still debates on non-value consequence and non-value acts, and debates on relaxed illegality monism and relativity of illegality, the culpable illegality notion stands out. As to the application, the theory of culpable illegality focuses on the function of decriminalization. This function has drawn the attention of legal scholars in China.The elements of a crime, in Chinese criminal law, are both qualitative and quantitative in the legislation, while the Japanese counterparts are qualitative in legislation and quantitative in judicature. There is an obstacle to the direct transplant of the theory of culpable illegality because of the differences in legislature, elements of criminal, etc. between the two countries. While the Japanese theory shall be recognized, it is still a question as to whether the theory shall be adopted and how it shall be adopted in China.This paper covers three parts:The first part introduces the theory of culpable illegality in the Japanese criminal law. It talks about the origin of this concept and its development. The representative cases are presented for purpose of explaining the application of the theory in practice. This case has made clear that the theory of culpable illegality has great impact on the traditional Japanese criminal law in that the modest restraint of criminal law is shown and the idea of substantial illegality is established.The second part discusses the controversial issues regarding the theory of culpable illegality. The discussion will follow two lines:Dr. Chihiro SAEKI’s doctrine and Dr. Hideo FUJIKI’s doctrine. This part will explain the relationship between culpable illegality and uniformity of law and order, the position of the system of culpable illegality, the criteria of culpable illegality and the differentiation of culpable illegality and social equivalence.The third part focuses on what lessons we can learn from the theory of culpable illegality. This part discusses the similarity between provisos in the Chinese criminal article13and the theory of culpable illegality. It points out that the theory has its significance in the current crime element system and stratified crime theory system.