從“分野”到“融合”

“法律融合”的背景下，數個法領域很可能對同一行為做出了調整與規制，在一定條件下應當允許違法的判斷“和而不同”。違法判斷相對性的立論依據在於，刑法具有相對獨立性，並不從屬於民法、行政法，因而也不能以民事不法、行政不法作為刑事違法判斷的當然前提。法秩序的統一不是違法概念的形式統一，而是各法領域目的的統一。針對“刑民交錯”“刑行銜接”案件的法律適用應當拋棄“非此即彼”的思考方式，轉用法律競合和法律衝突的思維。刑事違法判斷首要考慮的是刑法自身目的的實現，以其他部門法相關規定為參考（而非參照），行為的有效性並不能否定犯罪成立。較之於緩和的違法一元論，違法相對論不僅能兼顧刑法目的的實現和法秩序的統一，符合刑法的謙抑理念，並且在判斷過程上更為清晰、高效。

In the context of ''legal fusion'' , it is likely to appear that several legal fields adjust and regulate one act simultaneously. Under certain conditions, ''harmony in diversity'' should be allowed in the judgment of the illegality. The theoretical basis of the relative judgment of the illegality consists in: is grounded in that the criminal law is relatively independent, which is and not subject to the civil law or the administrative law. Therefore, the judgment of civil illegality and administrative illegality is certainly not the premise of the judgment of criminal illegality. The unity of legal order is not the unity of the forms among the concepts of illegality, but the unity of the purposes of each legal field. The application of law involved in the case, which contains'' the intersection of criminal law and civil law ''or'' the connection of criminal law and administrative law'', should abandon the ''one or the other'' dichotomous thinking method and adopt the thought of legal concurrence and legal conflict. The realization of the criminal law s own purposes should be given precedence in the judgment of the criminal illegality. The provisions of other branches of law could be the reference, rather than the grounds, and the validity of an act(under other branches of law) couldn’t deny its criminal illegality. Compared with the moderate monism of the illegality, the relative illegality theory can not only combine the realization of the criminal law s purposes with the unity of legal order, but also as well as accords with the modesty and restraint principle of criminal law. In addition, it is more distinct and more efficient in terms of the judgmental process.