论民事、行政有效性与违法性判断的分离——兼谈法秩序的统一性与刑法判断的独立性

On the Separation of Illegality Judgment and Validity Judgment in Civil Law and Administrative Law

具有违法性的行为,在民事与行政上的效力一般被予以否定,即违法则不可能有效。但是在一些情况下,肯定这些行为的效力,更有利于法益保护和立法目的的实现,故在民法上出现了效力性强制性规定与管理性规定的区分。这体现了有效性与违法性判断一定程度上的分离,而这在行政法上也有体现。这种分离既体现了法秩序的统一性,又体现了各部门法不同的利益导向及法的利益权衡本质,也决定了各部门法判断的相对独立性,即使具有保障法地位的刑法也是如此。"一般违法性"的存在,与刑法判断的独立性不相冲突,而民事、行政法有效性与犯罪的成立也并不完全排斥。

An illegal behavior is usually invalid in civil law and administrative law. In another word, an illegal behavior can not have validity. But sometimes it is better to protect benefits and realize the legislative purpose when we confirm that the behavior is valid. So the distinction between the effect mandatory provi- sions and the management mandatory provisions is appear in the civil law, which means ,to some extent, the separation of illegality judgment and validity judgment. And it is also manifested in the administrative law. This separation reflects the unity of law order, and reflects the different Interest guides of different department laws and their nature of benefits balancing. And it determines the judgments of different department laws are relatively independent, including criminal law, which is called law of guarantees in the legal system. The ex- istence of ＂general illegality＂ does not conflict with of the independence of the criminal law＇s judgment. This separation also contributes to the situation that validity in civil law or administrative law does not completely exclude the crime.