Judgment Of Substantive Illegality In Criminal Law

Illegality theory is the touchstone of criminal law theory,among which the judgment of substantial illegality is more attractive.There is a contradiction between the theory of legal interests and the theory of norms in the way of judging substantive illegality.In China,legal interest has become the basic concept of criminal jurisprudence,and the judgjment of substantive illegality of criminal law has been widely used.However,the theory of legal interest also reveals some problems in the practice of criminal justice.This shows that the separate legal interest theory ean not provide a scientific basis for substantive illegal judgmene and must introduce the normative perspective.Based on the violation of ethical norms,the theory of social equivalence was initiated by the German criminal jurist Verzel,meaning that all the moral order formed in the history of social community life is socially equivalent and has played a limited role.Therefore,it is necessary to introduce the theory of social equivalence to make up for and correct the deficiency of merely relying on the theory of legal interest to judge the substantive illegality,so as to effectively build a bridge between normative jurisprudence and sociology of law and win public recognition of criminal justice.In addition to the introduction and conclusion,this paper is divided into three chapters.The first chapter mainly introduces the dilemma of legal interest theory.After clarifying the basic position of legal interest theory,this chapter analyzes the dilemma of legal interest theory in criminal justice practice in China.Specifically?the ion and fuzzification of the concept of legal interest,so that the interpretation function of legal interest cannot be accurately played;the de-life of the legal infringement judgment makes the communication between the legal interest theory and the social reality unsatisfactory,may ignore the case scenario factors,and the danger of formalization and standardization judgment;the lack of normative restrictions in legal interest measurement makes the legal benefit measurement conclusion too random and it is difficult to draw a satisfactory eonelusion.The second chapter is the introduction of social equivalence theory.The theoretical basis for introducing social equivalence is that criminal law is spontaneous,ethical and local.Therefore,in the substantive illegal judgment,the local differences in people,s life experience,social morality and criminal law cannot be ignored.Although social equivalence is also faced with many controversies,such as it can be substituted for other theories,the judgment standard is not clear,and it may lead to the ethicization of criminal law,it also has the theoretical significance of integrating the normative criminal law and sociology of law'establishing the relationship between substantive illegal judgment and public identity.Obviously,these advantages outweigh the disadvantages.Therefore,it is reasonable and necessary to introduce social equivalence.The third chapter is the application of the theory of social equivalence in the judgment of substantive illegality.Combined with the function of establishing the legitimate elements of substantive illegality and the function of composing the essential elements,this chapter uses the theory of social equivalence to judge the substantive illegality of legitimate defense and the exercise of rights,so that the judicial conclusions are more in line with the principle of fairness and justice.In the case of justifiable defense,we should pay attention to the social equivalence of the time condition and the limit condition of justifiable defense,and overcome the mistake of "consequentialism" in criminal judicatory practice.In the demarcation between the act of exercising rights and related crimes,the social equivalence between the means and the purpose of the act of exercising rights is emphasized,the amount of claim does not affect the judgment of the substantial illegality,and the exercise of moral rights may prevent the illegality of the act.