Research On The Judgment Criteria Of Criminal Illegality

Multi-jurisdiction cross-cases involve complex legal relations and are related to many departmental laws,which leads to the ambiguity of the judgement criteria for criminal illegality.Theoretical ambiguity often leads to the failure of judicial workers to deal with muti-jurisdictional cross cases,such as the Shuai Ying's Insurance Fraud case reported at the Southern Weekend of 2005.Although the case has been happening for more than ten years,it is often discussed as a typical case of the judgement criterion of criminal illegality in academic circles.Whether the judgment of the criminal illegality should be subordinated to the provisions of the pre-law or whether there is relativity or independence between them has led to a debate among the academic circles on the monism,relativity and pluralism of illegality.Strict illegal monism requires that the conclusion of judging illegality must be consistent even in different jurisdictions,which is a logical understanding of the unity of legal order,and will be weakening the role of criminal law.Moderate illegal monism can maintain the unity of law and order,but its theoretical basis lacks rationality,and there is no so-called law violating general illegality.The relativism of illegality advocates that the judgment of criminal illegality is mainly based on the purpose of criminal law,and the conclusion of the pre-law is only a reference factor.It is inappropriate for the main attributes of law to be regarded as the norm of judgment in the illegal relativism.The law has two attributes.It is mainly the norm of conduct,followed by the norm of adjudication.Penalizable illegality cannot properly solve the problem of the judgement criteria for illegality because it logically reverses the effect of law and the premise of law and its abstractness.The pluralism of illegality advocates that the judgment of criminal illegality should be carried out independently on the basis of criminal law,emphasizing the differences of normative purposes and value orientations in different jurisdictions.The pluralism of illegality is consistent with principle of a legally prescribed punishment for a specified crime,conforms to the “Qualitative and Quantitative” Legislative Mode of our criminal law,corresponds to the legal nature of criminal law and avoids confusion in the determination of legitimate causes.Therefore,based on the pluralism of illegality,the embezzlement of property paid for illegal reasons constitutes the crime of embezzlement,the exercise of rights can prevent the establishment of property crime,and the application of the pre-law can not prevent the application of criminal law,the innocent hedged person can exercise the right of legitimate defense against the hedger.