论犯罪与民事侵权行为的差异——以违法性为切入点

Differences of Illegality between Crime and Civil Tort——Focusing on Their Illegality

历史上的犯罪与民事侵权行为经历了从混同到分离的嬗变。当代的犯罪与民事侵权行为在区隔的基础上出现了融合的趋势,需要对二者之间的界限重新梳理。违法性是犯罪与民事侵权行为的核心,彻底检讨违法性的差异有益于厘清二者的内涵与外延。犯罪与民事侵权行为在违法性上的差别包括三个方面:侵害法益类型、违法性的实质与违法性的程度。造成这种差异的原因可以追溯至犯罪与民事侵权行为"栖身"的法律文本的规范目的之上:刑法关注惩罚,侵权责任法重视恢复。

During the history there are three stages on the relation between crime and civil tort, which are the confu- sion of crime and civil tort, the separation of crime and civil tort, and nowadays the confusion of crime and civil tort based on separation. It is necessary to find out the differences of them. The illegality is the essential elements of the crime and civil tort. It is a important way to learn about the conception and the scope of crime and civil tort. There are three aspects of illegality between them ： rechtsgut, quality of illegality and quantity of illegality. The distinction of the purpose of law is the reason why there are so many differences between the crime and the civil tort. The for- mer emphasizes punishment, but the later stresses restore.