The Theoretical Interpretation And System Construction Of "punishable Illegality"

The "punishable illegality theory" refers to whether the illegality of the act has reached the "quality" and "quantity" worthy of the punishment of the Department.It is the concept that the Japanese criminal law scholars put forward to solve the problem of how to make minor offences in the judicature.The theory is based on the theory of criminal law modesty,substantive illegality and illegality,and puts forward that the illegality includes two aspects:quality and quantity.Even in form,the act conforms to the constitutive requirements,but the extent of the substantive illegality does not reach the "quality" and "quantity" worthy of the punishment of the Department,nor does it establish a crime.Although the theory of punishable illegality is still not clear in Japan's system orientation and judgment standards,the "micro impunity" and the modesty thought have been agreed by the academic community.Although there is no "punishable illegality" in China's criminal law,the thirteenth "proviso" of the criminal law also contains the concept of quantitative crime,which has a certain degree of guilt function.However,due to the system of criminal theory and the legislative pattern of "legislative qualitative + legislative quantitative" in China,the "proviso" lacks sufficient theoretical support and its application standard in judicial practice plunges into fuzzy confusion,which has been criticized by some scholars.Since the "proviso" and the theory of illegality have a certain agreement,we might as well take the "proviso" as the introduction path,construct the system of "the theory of the illegality of punishment" in our country,use the "punishment of the illegality theory" to explain the "proviso",and refer to its judgment standard to apply " proviso ",carring out the decriminalization of minor harmful acts.Besides the introduction and conclusion,the body is divided into four parts.The first part is an overview of the theory of punishable illegality.This part introduces the theoretical evolution and basis of the theory of "punishable illegality",explains its development status in Germany,Japan and China,especially in Japan,and analyzes its three theoretical bases(Criminal Law modesty,substantive illegality and illegality relativity).The second part explores the system orientation of "punishable illegality".This part introduces and analyzes the affirmative views(including the hindrance of the constitutive requirements,the legal hindrance and the violation of laws and regulations)and the negative views(substantive negation and form negation),thus confirms the necessity of the existence of "punishable illegality" and the rationality of the illegal resistance.The third part discusses the judging standard of "punishable illegality".This part introduces and analyzes the existing value-based one-based standard,the two-dollar standard based on the worthless behavior and the general standards used in Japanese judicial practice.The fourth part based on the national conditions of our country tries to introduce the "proviso" as the introduction path,and constructs the system of "the theory of the illegality of the penalty" in our country,and analyzes its necessity,feasibility and operability.