Research On The Judgment Of Criminal Illegality Under The Perspective Of Unity Of Legal Order

The relationship between criminal law and other departmental laws has been a long and difficult question to determine in theory and practice.The reason is that the related problems involve several departmental laws with different normative purposes,value orientations and operation modes.There is an insurmountable gap between different disciplines in terms of knowledge and epistemology,but the legal system as an order community inevitably requires its sub-systems to be unified as much as possible.Therefore,on the occasion of normative concurrence,there may be irreconcilable contradictions in the aspect of interpretation of concepts,evaluation of norms and identification of responsibilities.What attitude should the legal order adopt?How to look at the difference between different departments? What role does the criminal law play in the competition with other departments? Can a methodology be developed to deal with specific issues? This is the problem consciousness of this article and the article's vein.The first chapter is about the unity of law order.There is no doubt that the unity of the legal order has long been a fixed principle of interpretation,but some scholars in China often interpret it at will without studying it's true meaning,then made this concept abused.So,it's necessary to clear the source and find the ture meaning of the unity of law order.From the perspective of distinguishing between "ought to be" and "true to be",we should see that explain and resolve the contradictions in the system as much as possible is the core purpose.It is difficult to establish the commonproposition of "normative contradiction must be eliminated" in the German academic circle,and there are also many drawbacks in Welzel's "illegality unification and illegality judgment independence".Japanese scholar tetsuhisa kyodo proposed a teleological mode of understanding,that is,the unity of legal order refers to the "purpose-means" without contradiction,which is the proper meaning of the unity of legal order.Based on this idea,Chinese scholars put forward the unified theory of "system-purpose",but this theory overturns the function of the purpose element,which is also not sufficient.Teleology should be further deepened.First,it should be emphasized that the unity of law and order should be judged from the perspective of the whole law and order rather than individual departments.Secondly,the unity of legal order refers to the unity of interest judgment.The second chapter discusses the related problems of the illegal relationship theory.As for the judgment of criminal illegality,the academic circle has been known as the dicuss between alleviate illegal monism theory,illegal relativism theory and illegal pluralism theory.Alleviate illegal monism theory is most agreed,but it has many logical contradictions and deep flaws,so needs a comprehensive clean up.The difference between the illegal relativism theory and illegal pluralism theory lies in whether to recognize the minimum logical relation between the judgment of criminal illegality and that of other departments.Among them,it mainly involves the understanding of the modesty and restraint of criminal law and the function of the antecedent law's allowing judgment.The modesty and restraint of criminal law and the second illegality theory are two different levels of issues,and there is no derivation between them.The admissibility judgment of the antecedent law does not play an absolute decisive role.China and the the criminal law theory's birthplace have completely different cultural basis,and the independent judgment of criminal illegality can be traced.Based on the decisive position of normative purposes in the construction of legal philosophy,legal order,doctrine and illegality,criminal law is relatively independent because of its independent normative purposes.The third chapter discusses the differences of departmental law and the specific understanding of "relative independence".To discuss the relationship between thingsshould be based on exploring the nature of things,but the previous studies on the relationship between illegal judgement have not started from the nature of criminal illegality,which is a kind of regret.The essence of criminal illegality is that the behavior violates the norms of conduct for the purpose of protecting legal interests.From this perspective,it is not difficult to find that the fundamental difference between criminal law and civil law lies in whether the behavior destroys the effectiveness of the norms,and the core difference between criminal law and administrative law lies in the investigation of legal interests.Based on these differences,the relative independence of criminal law can be explained from three aspects: interest protection,interpretation and evaluation.The fourth chapter is the concrete development and methodological conclusion of "relative independence".Based on the foregoing position,"relative independence" can be reduced to the relativity of protection of interests,focus of evaluation,and word interpretation.In the dimension of protection of interests,the criminal law pays more attention to the protection of institutional interests than the civil law,and pays more attention to the individual restoration of interests than the administrative law;In the dimension of focus of evaluation,the illegal structure that favors subjective attribution is a unique feature of criminal law.Changes occur due to different subjective factors can make substantive difference;In the dimension of word interpretation,the interpretation of criminal law with protection of legal interests at the core can either limit the concepts determined by other departmental laws or justify expansion.After summarizing the previous viewpoints,this paper puts forward the handling principles of "criminal values behavior,civil values relationship" and "criminal values offense of legal interest,administrative values norms" and relevant lower rules,in order to effectively enable judicial practice to solve practical problems.