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The Demarcation Theory Between Civil Law And Criminal Law

Posted on:2020-08-06Degree:MasterType:Thesis
Country:ChinaCandidate:Y D CaiFull Text:PDF
GTID:2416330572994527Subject:Criminal Law
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(1)The value of the topic1.Clarify the true proposition of the study of the intersection of civil and criminal issues: the civil penaltyIn the cross-research of civil law and criminal law,there are actually two types of research,one is the comparative study of procedural law,and the other is the comparative study of substantive law.The study of procedural law is mainly the study of the procedural processing mechanism of civil procedural law and criminal procedure law for the cross-criminal case of civil punishment,and this paper mainly studies the civil penalty from the entity.In fact,there are two types of research on the comparative study of civil punishment in the entity: one is the study of the correlation between civil law and criminal law,and the other is the study of the boundary between civil law and criminal law.The correlation of civil punishment is eternal to a certain extent,but most scholars' research arguments are entangled in "a certain act in the end civil law or constitute a criminal offence",in fact,the provisions of Article 187 of the General Principles of Civil Law : If a civil subject is liable for civil,administrative,and criminal liability for the same act,accepting administrative or criminal liability does not affect the civil liability.In other words,in most cases,the actor must bear criminal responsibility as well as civil liability;it is because of serious civil violations that criminal liability is caused;the intersection of civil and criminal punishment is the norm,civil liability and criminal responsibility are crossed.It is also the norm,then the focus of our cross-criminal research should be the civil penalty.In the field of civil punishment,where should our focus be placed? The author believes that as long as the demarcation of behavior constitutes a crime.If the perpetrator's civil violation does not constitute a crime,then as long as he bears civil liability,he does not need to consider the criminal liability issue;if the perpetrator's civil violation constitutes a crime at the same time,then the criminal liability is not affected,and the perpetrator does not affect the civil liability,and the civil liability is passed.The relevant procedures can be resolved according to law.2.The key to the study of the civil penalty division: illegalityThe key to the civil penalty is the illegality,that is,the illegal basis and the illegal content.In the study of the civil penalty division,it can only be a comparison between civil and criminal offences.This is the logical premise of the study of the civil penalty division.In the civil law system,civil legal relations include civil legal acts,but civil legal acts are legal acts.We must never compare legal acts in civil law with criminal acts in criminal law.We can only use civil illegal acts(mainly including civil Comparison of breach of contract and infringement)and criminal offences,otherwise the comparative study of civil punishment will lose comparability.3.How to study the issue of civil penalty division: system divisionThe key to the civil penalty is the illegal basis and the illegal content.First of all,in the different purposes of civil law and criminal law,the purpose of the introduction of a law determines the legislative task and value orientation of this law,that is,what this law is used for,which is the fundamental reason for the difference between civil law and criminal law.Understand the root causes of civil and criminal violations,it is necessary to examine the basis of civil and criminal violations,that is,what causes and constitutes civil and criminal violations,and what is the basis for its establishment.The implementation of the illegal basis is reflected in the illegal content,that is,how to violate the law.The final result of the violation is the legal liability.The responsibility of legal responsibility is to settle the problem of illegality.At this stage,scholars' research on civil law and criminal law is basically confusing: substantive law and procedural law are not divided,or mixed together;or only discuss the macro and middle issues of the civil penalty,or only discuss the specific criminal discipline The detailed operation of the points;the nature of the civil law and the criminal law,legal liability,illegal content,etc.are mixed and discussed indiscriminately.4.A Thinking of Chinese Criminal Law Research;Comparative Study of Civil PenaltyThe study of Chinese criminal law seems to have reached the point of a kind of pan-regional externalization.The study of German-Japanese criminal law is the absolute mainstream,and it is supplemented by the study of British and American criminal law.Almost all criminal law research is printed with the imprint of foreign law.It is the main task of almost all research institutes and college scholars.Perhaps Chinese criminal law has gone too far,forgetting why it is necessary to start;there are too many criminal law arguments,and the criminal law arguments needed in practice are too scarce,forgetting that "law is a very practical discipline." The cross-research on civil punishment is precisely the study of the division of civil punishment.To some extent,it can be compared from different departmental laws,find the original appearance of criminal law,find the way the criminal law should be,and the criminal law should always reflect subjective gene.Violation of the law should be subjective.Under the current Chinese judicial system,the constitutional,illegal,and accountable elements of the criminal elements of the German-Japanese criminal law,placing subjective faults at the last level,can only make more non-criminal behavior fall into the category.The first two elements of the crime caused by objective judgment make it easy to sin,making all the actual damages have the possibility of falling into the criminal law.As everyone knows,criminal law has never solved the objective and objective damage.The objective damages of civil law,commercial law and economic law have never been smaller than the criminal results.(2)Ideas and main points of viewThe division of the civil penalty is mainly based on the illegal basis and content.The civil law is mainly objective and illegal.The criminal law is mainly subjective and illegal.This is the cornerstone of the boundary between the two.The civil law and the criminal law are divided first.From the macroscopic point of view,the purpose of civil law and criminal law is to divide the civil law.The purpose of civil law is to protect the legitimate rights and interests of civil subjects and adjust civil relations.The purpose of criminal law is to "punish crime and protect the people." From the point of view of the purpose,the civil law protects the personal relationship and the property relationship between equal subjects,while the criminal law protects the people by punishing crimes to maintain social order and protect the people.Because of different purposes,the nature of the two laws is different,the private law of civil law and the public law of criminal law,the citizenship of civil law and the national nature of criminal law,the first nature of civil law and the second nature of criminal law,the development of civil law and criminal law.The closure,the formality of civil law and the substantiveity of criminal law,the restoration of civil law and the punishment of criminal law,the norms of behavior of civil law and the norms of criminal law.The comparison between the nature of civil law and criminal law is based on the comparison of the nature of civil law and criminal law.Because the purpose and nature of civil law are different,it leads to different legal basis: civil law is mainly objectively caused by illegal law,criminal law is mainly subjectively caused by illegal law,illegal law in civil law is used for pricing,and illegal law in criminal law is used for punishment.Through the comparative study of subjective and objective between civil law and criminal law,we can better understand that the behavior of criminal law is worthless,and the result of civil law is worthless.Through the study of pricing and punishment,we can better understand the limits of restorative justice in criminal law.The violation of law is based on the implementation of illegal content,mainly in the subjective and objective aspects of illegality.The requirements and judgments of intentional and negligent in civil law and criminal law are different.The purpose and motivation of illegality are different for illegal purposes.In objective terms,civil law and The criminal law has different requirements and meanings for behavior,results,causality,and objective accompanying situations.In the civil law and the criminal law,the judgment criteria of "intentional" and "negligent" are inconsistent.It is not possible to mix the two through the use of the doctrine.The "intentional" and "negligent" requirements in the civil law are low,mainly because they have an understanding of the behavior.In the criminal law,"intentional" and "negligent" must have "malicious" that "endangers society." Some violations of the law in the civil law are not behaviors,such as alternative responsibilities,such as the responsibility caused by parabolic objects at high altitude.Some behaviors are beneficial,but they infringe on the rights and interests of others and still bear civil liability.The behavior in criminal law must be malicious and evil.Because the illegal law in the civil law is mainly objective,the result and causal relationship are necessary,but the criminal law is subjective,the result is not necessary,and the causal relationship is not a constituent element of the crime.Objective attachments have little meaning for civil law,but they can reflect the subjective malignancy of criminals.The purpose and motivation are crucial to the conviction and sentencing in criminal law,and have little value for civil law.Finally,the implementation of criminal responsibility,the impact of criminal liability on civil liability,and the impact of civil liability is objective and unavoidable,but its legitimacy must be strictly limited,civil liability and criminal liability in the nature of responsibility,commitment,and commitment The subject,the degree of compulsory,the discretion,execution,elimination,and distribution of responsibilities are all different.Because civil violations are inevitable in the daily economic society,there is nothing wrong with it.It is morally neutral,mainly property liability.It is the responsibility of the parties.Civil liability can be negotiated and can be enforced first.Criminal violations(crimes)are often acts.The external manifestation of human anti-social and ethical subjective psychological attitudes is the actor's responsibility to the state.It is strictly compulsory and can only be blamed,mainly personal responsibility.Responsibility needs to be determined for future personal danger,etc.
Keywords/Search Tags:Civil penalty boundary, Nature boundary, Purpose boundary, Illegal basis, Illegal content, Legal responsibility
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