The "Illegal" In Criminal Law Of China

In the current context of China’s criminal law, the constitutive requirements should act in many cases there are standard elements, which is based on the premise of "illegal", but understanding how the concept of "illegal", is a form of judgment or make substantial judgment, has always been a matter of criminal law scholars consider, because this question is directly related to an act of the crime or crimes.The present criminal law norms of "illegal" the regulation is not clear, and there is no corresponding judicial interpretation and legislative interpretation.In specific judicial practice, in the face of the same case, even can produce different connection with the embarrassing situation. This debate, the understanding of the nature is essentially to the crime constitution is different, the current punishment law exists mainly in form of theory or essence theory, theory of specification or ontology theory to define the nature of the crime constitution.But in the crime constitution, fact and value is always a topic that is not open around.In this paper, a case of secretly cross the national boundary border questions: whether there is no relevant exit certificates or use improper means to obtain the real ID exit all belong to "illegal" exit problem. The first part, the subject of this paper by a "smuggling case" out, put forward if the outbound used to cheat to legal documents, is to be considered "illegal" exit.The second part from the perspective of substantive judgment, see this behavior is violated by the crime situation documents, more into the subjective thoughts, is the result of unification of a subjective and objective, also known as a kind of value judgment. To conclude, the "judgment standard of illegal" caused by the inconsistency of the results is different; in the final analysis is a standard to the crime of different nature.The third part, the standard of value judgment can be appropriate to the fact judgment standard is modified, in fact judgment standard does not cover all the criminal behavior plays a role in the crime, the realization of social justice; in fact judgment standard of attack is too wide, and play a crime, will not punish the necessary actions to exclude the outside.The fourth part focused on the construction of "illegal" type system. The fifth part, in order to illegal medical practice as a case, proves the rationality of the system.The innovations of this paper, based on facts and value as the angle of view, the "illegal" the normative elements, carries on the analysis from the system. The content of this paper tightly around the problem, from the question, the analysis question to solve the problem, from the theory and the case for building the "illegal" the system of argumentation, this research has further than ever before.The shortcomings of this paper, in the construction of "illegal" system, the constitution of crime fact system, the theory of strong, due to the limited capacity of the author, the typical "illegal" type and atypical "illegal" applied to practical problems remains to be time. How to test, not a typical "illegal" type of extensive manifestation do specific research needs further exploration.