Research On Criminal Illegality Judgment In Criminal-civilian Cross Cases

From the clear boundaries of departmental laws to the interweaving of legal edges,the development of law has shown a trend from division to convergence.It is different from the "legislative qualitative+judicial quantification" model adopted by Japan.Under the established and quantitative legislative model of our country,the criminal law's incriminating standards and crime composition are significantly different from those of Japan.In recent years,there has been widespread concern in the academic circles about whether the judgment of civil illegality and criminal illegality is quantitative or qualitative,and whether the judgment of criminal illegality should be subordinate or independent of civil illegality.At present,most scholars in our country support the theory of relative subordination,which intends to ease the theory of subordination in order to achieve the relative judgment of criminal illegality under the premise of the unity of legal order.In recent years,the theory of relative independence of the "emergence of a new force" has many supporters because of the simplicity and clarity of the judgment process.The modesty of criminal law and the substantive thinking of the criminal theory system demonstrated by these extraterritorial theories should be affirmed,but which one fits our country's national conditions and judicial practice to the greatest extent?Can we learn from and how to learn from in our legal reform process all are worthy of our discussion.This article starts from the unique normative protection purpose of the criminal law,takes the constitutive requirements and the illegality as the coordinates,whether the behavior in the criminal-civil cross case is criminally illegal,and how much the criminal law's understanding of the concept and constitutive elements can be compared with the civil law.Based on the principle of the uniformity of legal order,adhering to the modest attitude of criminal law,and strictly controlling the activation of the power of punishment,it is an attempt to draw appropriate conclusions from specific cases in practice.Based on this research purpose,this article is divided into the following four parts:The first part defines the scope of the case and the concept of criminal illegality involved in the criminal-civil cross cases discussed in this article.Even if the term criminal illegality is used in many theses,the context and representative meanings used in different scholars'articles are also somewhat different.Summarize the classification of criminal-civil cross cases by Chinese scholars and the main research paradigm of the current judgment of criminal illegality of criminal-civilian cases.Whether the criminal law can protect the interests that are not protected by the civil law and whether there is an inevitable connection point between the judgment of the criminal illegality of the civil contract and the behavior,combined with typical cases,it draws out the current difficulties in dealing with criminal-civil cross cases in the theoretical and judicial practice circles of our country.The second part discusses how to eliminate the conflict of judgments of criminal and civilian illegality and reveals the position of this article.It sorts out the subordination of criminal illegality judgments and the development of the theory of independence in Japan,and lists several solutions when the criminal and civilian illegality judgments conflict with the method of doctrine.Taking the punishable illegality as the starting point,discuss the position of the punishable illegality in the criminal theory system in the theoretical construction process,and discuss whether the punishable illegality can bear the function of judging the criminal illegality.In the case of criminal-civil intersecting cases debated in the academic circle,whether to adopt the model of "punishment before civil" or "punishment after civil" to give this article's position.This chapter will also make it clear that this article's judgment on criminal illegality in criminal-civilian cases should adhere to the basic point of view of starting from the criminal law's normative protection purpose and using the criminal law's unique incriminating standards as the coordinate.The third part is the demonstration of the relatively independent judgment of the criminal illegality of criminal-civil cross cases.The relatively independent judgment that clarifies criminal illegality still recognizes the unity of legal order,and seeks a coordinated path for criminal and civil illegal judgments from the perspective of legal order.Starting from the differentiated perspective of the construction of illegality in civil law and criminal law,and the differentiated understanding of the basic categories of criminal law and civil law,it is concluded that the judgment of criminal illegality should be relatively independent,and the relative independence of criminal illegality should be discussed in multiple dimensions.It discusses whether the relatively independent judgment of criminal illegality conflicts with the principle of modest restraint of the criminal law,the law's guidance to the people's behavior when the criminal and civilian norms conflict,whether some emergency avoidance behaviors are illegal,and whether they can establish legitimate defense.The fourth part explores the application in practice of the relatively independent judgment of criminal violations under the intersection of criminal-civil cross cases.It shows that this article advocates a change from the concept of "criminal-civil distinction" to "criminal-civil competition",and attempts to draw an appropriate conclusion by judging the validity of contracts and criminal violations of behavior,payment of illegal causes and property crimes,excessive rights protection and property crimes.The question of whether the protected interests can be protected by the criminal law and the handling of typical cases in practice are given reasonable explanations in the relatively independent judgment of criminal illegality.