The Boundary And Judicial Application Of Criminal Offense And Civil Lawless

As two basic legal departments in modern legal system, the relationship between criminal law and civil law is always a key topic area, and a challenging task. At the same time, we have to face and solve the puzzles about the boundaries and relationship between criminal offense and civil lawless. Therefore, this paper attempts to make a relatively clear boundary between criminal offense and civil lawless on the basis of reference to the former academic works and experience, and hope to influence the lives of the applicable law of judicial practice.For a long time, people do not make "lawless" and "illegal" these two concepts strict distinction. In China,"lawless" and "illegal" are often used interchangeably. Strictly,"lawless" and "illegal" are qualitative differences."Illegal" emphasize on the illegal nature of the act,"Lawless" emphasize on the legality of the act itself. In this paper, the author will learn the distinction from German scholar, and think lawless include criminal lawless, civil lawless, and administrative lawless. Lawless is a superordinate concept of criminal offense and civil lawless. The deference between criminal offense and civil lawless is defined in the uniform law order, and their lawless is relative in easing of illegal monism.As important sectors, the relationship between criminal law and civil law has gone through a long process of development. From a historical perspective, such big picture in front of us is "unified" to "independent" to "blended". The boundary between criminal offense and civil lawless is very vague, and the main reason is mutual integration on the adjustment range between criminal law and civil law, specifically in the physical reasons, the procedural reasons and the conceptual reasons. Therefore, we need to clarify the boundaries between them, which have important implications both in theory and in practice.Before examining the boundary between criminal offense and civil lawless, we must show the basic position on the relationship between criminal law and civil law. In my opinion, we should discuss the boundary between criminal offense and civil lawless under the ease of illegal monism, and can not be generalized the relationship between the ancillary and independence of criminal law. This article begins with a brief review summarizes the overview of current research scholars of criminal and civil lawless boundaries, and then show my support for the theory of culpable illegality. The theory of culpable illegality is from Germany, flourished in Japan. It has its own unique theoretical system, and there are different theories in its internal. However, the different theories have a common theoretical basis---tolerance of criminal law, substantive illegality, and Illegal relativity, which is consistent with the basis position that criminal law should be adhered to. In various doctrines, I support the dualism, because it examined punishable Illegality from the qualitative and quantitative aspects. It not only affirmed the formal sense of constitutive elements deserve sex, but also allowed to do substantial investigation within the necessary range, The point of view is novel and unique! Therefore, I believe that the theory of culpable illegality could distinguish criminal offense and civil lawless very well. And despite their shortcomings, but have fundamental.Finally, the author will combine with the really cases in judicial practice to investigate the specific application of the theory of culpable illegality, so as to looking for a way out for the theory of culpable illegality.