The Relative Independence Of The Evaluation Of Criminal Law

In the long history of the legal system, the relationship between the criminal law and the pre law can be described as a primitive problem that scholars pay attention to. For legislators, which is worth pondering that how to accurately set the crime circle and how to promote rather than interfering the development of pre law behaviors. For justice, it is a long-lasting problem that how to according to the laws and regulations of criminal law to evaluate the behaviors, and whether the evaluation of criminal law is independent.Three typical cases in judicial practice, is presented in this paper intends to raise three issues to be studied in this paper: First, whether the interpretation of criminal judgments on the same terms is independent? Second, whether it is independent of the criminal law illegality judgment? Whether they need to have a pre-law Illegality premise? Third, if the evaluation of criminal law is independent, whether it is contrary to the unity of the legal order? And then through further in-depth analysis of these three issues in this paper,we may come to a conclusio that the evaluation of criminal law is relatively independent. Firstly, the interpretation of the criminal law is not limited to the results of the pre-law interpretation. Secondly, illegal judgment is relative, in our country, the criminal law illegality judgment is not to pre law of illegality judgment results as the basis.This paper mainly includes the following four parts:Part I: By analyzing the three cases to put forward the three issues,and then analyze the reasons for the problems. This part can be divided into two sections. The first section is mainly through the analysis of three typical cases in judicial practice is presented in this paper intends to raise the issue which will be studied in this paper, that is, whether the evaluation of criminal law is independent. The second section is the analysis of why there are a large number of criminal civil crossed suspected causes existed in judicial practice? we argue that the reason mainly lies in the specification of the purpose and effects of legislation and regulation. In addition, the trend of the extensively of our criminal law legislation blur the boundaries between the criminal law and the pre law, so that this problem is more seriously.Part II: This part is the in-depth analysis of the first question ”whether the interpretation of criminal judgments on the same terms is independent? “. And this part can be divided into three sections. First,by the analysis of the "secondary standard" properties and the "unified" criminal law legislative mode in our country, thus we can fand that the terms between criminal law and pre law are the same in some degree. Second, by analysing the the independence of criminal law,and the difference of the legislative purpose, value, evaluation of the standard terms between criminal law and pre law, we may fand that the evaluation of criminal law does not necessarily according to the pre-law and strict interpretation, which can be on the terms of the purpose of the criminal law explanation based on text meaning. Section three based on the first case that presented in Part I, and then have an in-depth analysis, thus the case will further confirmed that the interpretation of criminal law on the same terms is relatively independent. And pre standard judgment only has the reference function.Part III: This part is the in-depth analysis of the second question ”whether it is independent of the criminal law illegality judgment? “. This part consists of four sections. Section A, by analysing the difference between “the principle of relative judgment by law” and “the principle of multiple judgment by law ”,which was the theory of the illegality on the relationship in different legal unit in in German and Japanese criminal law theory. On comparing German-Japanese criminal Law theory of illegality with our criminal illegality, we found that the introduction of Germany-Japanese criminal Law illegal relativity theory is necessary. Section B, based on our criminal law, through the analysis of the legislative pattern and the structure of the crime, we may fand that in our country, illegal judgment on the criminal law is relatively independent, pre-law illegal judgment Internalized in the process of criminal law illegal judgment. Section C be analyzed from the perspective of the pre-law. first of all, in our country, the civil tort liability of illegal judgment which is not set, it is difficult to become the basis pre-judgment to the criminal illegality judgment; secondly, through the analysis of the case 2 that presented in Part I, which indicating that the criminal illegality judgment cannot be directly according to the results of the pre-law illegal judgment. Section D is also analyzed from the perspective of the pre law, the effectiveness and legitimacy of the legal acts of the pre-law are two separate questions, so the effectiveness evaluation and judgment of illegality is phase separation, both can not be exactly the same. Thus which behavior was effective in pre law does not necessarily exclude the criminal illegality.Part IV: The last part is the deep analysis of the third problem of "whether it is contrary to the unity of the legal order?". The unity of law order can be understood from different levels and can draw different conclusions. we believe that the unity of legal order is relative, not absolute, is a unity on the view of purpose system, which does not require the elimination of all the contradictions. The unity of law order just require the evaluation of criminal law within the norms of purpose, and did not violate axiom and justice.