Illegality Judgment Moderated The Advocacy Of Monism

This paper stands in the order of law unified position,trying to explain and solve the "punishment inconsistent"(including civil law and criminal law and legal,illegal criminal law and civil law legal,illegal)problem,including: in the performance,"the existence of criminal and civil inconsistent" phenomenon in violation of law;regression judgment criminal illegality,judgment,whether should pay attention to coordination and use of civil law such as concept and justifications;in the whole legal order,the punishment is not consistent,whether can exist in law can not consistent,when can be inconsistent;at the theoretical level,to ease the monism of illegal benefits and pluralism are illegal in the practice of solving problems;the problems on how to explain and solve the "civil law and criminal law and legal,illegal criminal law and civil law legal and illegal" phenomenon.First of all,this article from the "according to the types of punishment inconsistent" will be divided into two categories: one is the purpose of criminal and civil protection agreement but due to different legal provisions and appear inconsistent,two is not the same purpose of criminal and civil protection differs,and put forward the reasons of inconsistent illegality in on how to determine the punishment.Secondly,the judgment of illegality is divided into two aspects: the definition of the law and how to coordinate it.First,the definition of illegal,criminal law needs to return to the "illegal",criminal illegality should stand in the law against the results of priceless angle,while only some serious damage to society of criminal law regulation of interests,but also suffer the restriction of criminal law,the basic unit in addition to the protection of personal rights and interests,but also pay attention to the protection of social order and maintain social stability.And other areas of law such as civil law violations and criminal law is more extensive,more mild,pay more attention to the protection of private interest.At the same time,there are provisions in other jurisdictions,which are in coordination with the criminal law,that is,the law of force breaking the law is invalid.In most cases,the rules of "attention" are applied to protect the order of law.Secondly,in coordination,people should adhere to the unity of law and order,and there is no contradictory explanation.That is to say,in terms of jurisprudence,"penalty is not consistent".Again,in theory,illegal pluralism only from the single method of domain,causing the expansion of criminal law,the application of reverse order is too strong,"explained the concept of civil law" in criminal law and other issues.To ease the monism of illegal more in line with the development of practice: "judge structure" double can focus on the coordination of criminal and civil legal inheritance monism that super regulations of illegal resistance but reason,while avoiding the relative concept of law,in order to solve the problem of "punishment inconsistent" is more convenient.Finally,in explaining and solving the "punishment inconsistent",on the legislative level,to some of the seemingly legitimate civil law behavior ",through the whole legal order,in accordance with the field of criminal behavior elements,to explain its illegal behavior is a crime,is no longer a legal act;in in judicial practice,to solve the problem,to the overall perspective,the" general law of punishable illegality "in the criminal law,illegal judgment,judgment is added to the judgment of illegality in the constitution,the form of illegality judgment,avoid the provisions in the law level,different;in addition to considering the punishable illegality,but also consider the illegal resistance of different jurisdictions have a legitimate reason to achieve yuan.According to the "finds a crime according to the criminal law and civil law,there may be legitimate",to take three steps,according to the local law on the conduct of each domain of law protection is the purpose of the same class and existing relationships;for the same kind of legal interests,adhere to the concept of unity andunification of law the protection of;for different purpose of protection,take a careful analysis of behavior in various law purpose and weighing benefits,so as to solve the "punishment inconsistency" problem.