On Supra-law Elimination Of Illegality

Athough not regulated by criminal law, some offences happening in the real social life,such as victim’s commitment, self-salvage,conflict of duties, are not regarded as criminal in judical practice and academic study. Those named supra-law elimination of illegality in crminal theory of German and Japan, recently, are being studied by our Chinese scholars. I stand by it as well.Dealing with the source of concept of supra-law elimination of illegality in chapter one, where I point out that supra-law elimination of illegality dosen’t mean a criminal in that it dosen’t conform with the objective aspects of criminal instition and subjective aspects of criminal instition by judging sustantially. In chapter two, I deal with and make comment on the basic theory of supra-law elimination of illegality, owing to acknowledgement of legal loopholes,the theory of substantial illegality and the unity of legal order, the exisistance of supra-law elimination of illegality is recognized.And social considerable theory plays a role in explaining whether an act belongs to an supra-law elimination of illegality or not.Chapter three involves the systemic status of supra-law elimination of illegality.I put supra-law elimination of illegality in the category of objective aspects and subject aspects of criminal instition,in which the category of criminal object is regarded as guiding ideal limited to affirming wheather a act complys with the objective aspects and subject aspects of criminal instition. In the fourth chapter,I am of the oppion that we should strike a balance between protection of legal interest and human rights protection during the judical realization of supra-law elimination of illegality. The grounds for the judical realization of supra-law elimination of illegality lie in the theory of criminal instition which emphasize human rights protection. On the other hand, its procedural safeguards ask for The supreme people’s court’s approveling on the analogy of ararticle63.2of criminal law,which stesses human rights protection during the judical realization of supra-law elimination of illegality. Legislative realisation of supra-law elimination of illegality consists of the fifth chapter.I insist that supra-law elimination of illegality be regulated in Penal code. The realization of substantive regulationgs relys on mixture of regulationsgeneral regulations and concrete regulations. By referring to article63.2of criminal law, procedural regulations can be achieved by adding a criminal law amendment.Only when Supra-law Elimination of illegality is limited to solving a concreate matter can it be a a matter of coception. Once associated with other fields, Supra-law Elimination of illegality transforms into a matter of stystem. The thesis is just a useful attempt to strike a balance between a matter of function and system.