法秩序統一性視野下違法判斷的相對性

The Relativity of the Illegality Judgment under the Vision of the Unity of Legal Order

不同法域之間的違法判斷究竟是必須保持統一，還是應當具有相對性，甚至彼此獨立，一直以來都是極具爭議的理論問題。對該問題的回答將直接決定對涉及“民刑”交錯以及“行刑”銜接問題的案件的判決結果。該問題的實質在於“違法判斷相對性”與“違法判斷多元性”這兩種判斷理念之間的對立，正確的方法是在法秩序統一性的視野下，以違法統一性為基礎進行違法的相對性判斷。因此，民法或行政法允許的行為，必然不具有刑事違法性；而民法或行政法禁止的行為，則未必具有刑事違法性；對民法或行政法認為並無保護之必要的利益，不能認定侵害行為具有刑事違法性。

It has been a controversial theoretical problem all the time that whether the illegal judgment in the different legal unit should maintain unity, or be relative, or even be dependent of each other. The answer to this question will directly determine the verdict of cases which involves the connection issue between civil law and criminal law, as well as administrative law and criminal law. The essence of this problem is the opposite standings between the ideal of judgment of'the principle of relative judgment by law'and'the principle of multiple judgment by law'.The right solution is to make the relative judgment by law based on the unity of illegality under the view of the unity of legal order. Therefore, the behaviors which civil law or administrative law allows must have no criminal illegality. But the behaviors which civil law or administrative law forbids may not have the criminal illegality. For the interest that civil law or administrative law does not necessarily protect, the infringements should not be considered as a violation of criminal law.