法秩序的統一性與違法判斷的相對性

The Unity of the Order of Law and the Relativity of the Judgments on Illegality

法秩序的統一是合目的性的統一，只要不損害法之目的的統一性，規範矛盾便可以被容許。一般違法的概念應當被承認，它統合各個法領域中的具體違法概念，適用於規範的行為類型。嚴格的違法一元論和形式違法論密切相關，排除了實質違法論的適用，不具有合理性。雖然一般違法的概念適用於全部行為類型，但刑法中進行一般違法判斷的行為類型與其他部門法並不完全一致，刑法上的違法性判斷不依賴於前置法；將法益侵害的量作為刑事違法性的認定要素符合違法的本質，是刑罰合目的性在違法性中的體現。因此，在一般違法的前提下，刑事違法的判斷具有相對性。

The unity of the order of law is the unity of the purposiveness. Without impairing the unity of the purposes of law, the contradictions between norms are allowable. The concept of general illegality should be admitted, which integrates the concepts of specific illegality in each domain of laws and is applicable to every type of behaviors identified by norms. The strict illegal monism does not have reasonability, since it is closely related to the theory of formal illegality and excludes the application of the theory of substantial illegality. Although the concept of general illegality applies to every type of behaviors, those types on which judgments of general illegality should be made by criminal law are not completely the same as those to be judged by other laws. The judgments on illegality by criminal law do not rely on regulative rules. Taking the quantity of infringement on legal interest as one of the elements to determine the criminal illegality meets the nature of illegality and shows the purposiveness of penalty in illegality. Therefore, subject to general illegality, there is relativity in the judgments on criminal illegality.