| In the legal order built with the constitution as the core,the norms of the various departmental laws should avoid conflicts to prevent behaviors that are considered legal in one department’s law and illegal in another department’s law.The starting point of this requirement is that the law should provide clear rules of behavior to ensure the predictability of behavior,so as to protect the people’s freedom of action.However,due to the inconsistent normative protection objectives pursued by various departmental laws,actual evaluation conflicts often arise when evaluating the same behavior.The main problem to be solved in this article is how to measure the contradiction between the unity of legal order and the independence of judging violations,so as to solve the problem of intersecting criminals and citizens.The first chapter discusses the true meaning of legal order.The unity of legal order,as a natural prerequisite of legal hermeneutics,plays an extremely important role in the theory of illegality.At present,the academic disputes on illegality are mainly concentrated on the disputes between the moderated illegal monism and illegal relativity,both of which are based on the unity of legal order.Therefore,the search for the true meaning of the unity of legal order has become the primary solution of this article.The problem.From the perspective of the unification of legal order and teleology in the sense of its due,conflicts between various legal fields are difficult to eliminate,and the exclusion of normative contradictions is limited to contradictions in which the means and the ends are contrary or the means and the ends obviously violate the principle of proportionality.The second chapter discusses the theory of illegality.The theory of illegality can be divided into strict illegal monism,moderate illegal monism and illegal relativity according to the unity of the law order and the degree of independence of criminal illegal judgments.The theoretical dispute between different theories mainly lies in whether to recognize general illegality and punishable illegality.The moderate illegal monism tries to achieve the unity of legal order by constructing a dual judgment structure of "general illegality + punishable illegality".The purpose of independence with the illegal judgment,but with it is an unexplainable logical contradiction.The illegal relativity theory is more compatible with our country’s legal system than the moderate illegal monism,but it also lacks operability,or may lead to the skeletalization of the principle of the unification of legal order.In addition,it should be noted that the complementarity of the criminal law does not mean the subordination of the criminal law,and the criminal law is independent due to its independent normative purpose.Generally speaking,the theory of illegality is of great significance to the intersection of the general theory and the civil law,as well as the crime when facing the intersection of the criminal law and the civil law.However,in the process of conviction,its judgment logic lacks operability.The third chapter discusses the related issues of the legal effect theory.Compared with the illegality theory on the illegality level,the legal effect theory that solves the criminal and civil cross-substantial problems from the behavior evaluation level has more practical significance.According to the theory of legal effect,the conflict of legal effect when the facts of legal evaluation are inconsistent can be tolerated,and the conflict of legal effect that appears when the evaluation facts are consistent needs to be reduced.The method of reducing legal effect conflicts depends on the type of legal effect conflict.If the cause of the legal effect conflict lies in the relative conflict of the criminal and civil norms,the content of the criminal and civil norms needs to be interpreted in a purposeful manner,and the law should be carried out on the basis of the interpretation.Application of norms.If the reason for the conflict of legal effects lies in the absolute conflict of the criminal and civil norms,and the unification cannot be achieved through the interpretation of the purpose,it is necessary to measure between the criminal norms and the civil norms to ensure that the higher priority legal norms are realized.The fourth chapter discusses the criminal law evaluation of the illegal exercise of creditor’s rights,which mainly involves the application of the theory of legal effect.Through the analysis of practical cases,the conflict of legal effects actually exists in the illegal exercise of creditor’s rights,and the Criminal Law Amendment 11 is newly added On the surface,the crime of soliciting illegal debts seems to intensify the conflict of legal effects.This chapter mainly explores the purpose of criminal and civil norms to determine the reasons for the conflict of legal effects and propose solutions. |
