| Payment for illegal reasons,as a kind of property payment behavior,often intersects with the crime of fraud.In view of the behavior that cannot be directly converted into actual property interests such as defrauding creditor’s rights,we should eliminate the influence of illegal reason payment and deal with it directly as the crime of fraud.Therefore,the obstruction of payment for illegal reasons to fraud is only limited to the situation that the payment has been completed or the property interests have been transferred finally.When the act of fraud comes first and the act of payment comes later,the latter act of payment cannot prevent the former act of fraud from being illegal.Only when the act of payment comes first and the act of fraud comes later,the criminal illegality of the act of fraud will be questioned by civil legality and criminal illegality.For solving this problem,we need to clarify the relationship between the legal effect of illegal cause payment in civil and criminal law,in order to explain the situation that illegal cause payment does not prevent the establishment of the crime of fraud in the legal system as a whole.When the payer is forbidden to exercise claim for restitution,the ownership of the property is in a stagnant state,and the receiver has no right to possess the property.At this time,the illegality of the receiver’s fraud behavior is questioned by the normative contradiction in the unified theory of law and order,that is,the receiver’s “legal” unauthorized possession cannot be evaluated as “illegal” by the criminal law,and the expression of civil legality and criminal illegality is too grand,ignoring the differences between the criminal and civil evaluation systems.Unauthorized possession is civil “illegal” rather than “legal”,and the criminal and civil are not in the same line for evaluation.Based on the theory of economic property,the property paid should be the object protected by the crime of fraud.The relaxed monism of illegality inherits the spirit of the theory of the unity of law and order,but the abstraction of the theory of the unity of law and order determines that it cannot provide methodology for conviction,and the second-order judgment method of illegality has neither theoretical rationality nor practical feasibility.To judge the illegality of fraud in criminal justice,we should adopt the theory of relativity of illegality,respect the differences of purpose and content between different departments,and focus on the crime itself,so as to correctly understand the concept of“legality” under the unity of legal order,and realize the cooperation between the incriminating mechanism and the incriminating mechanism. |
