刑民关系视野下违法一元论与相对论之对立及展开

Opposites between Monism and Relativism and Other Issues: From Relations between Criminal Law and Civil Law

在违法性的判断上,向来有违法一元论与违法相对论之争,违法一元论在立论基础与理论依据方面存在诸多的不足,相反违法相对论以法是裁判规范为前提,遵循法领域的不同目的,倡导违法性的判断应独立进行。一方面摒弃了僵硬地肯定法秩序的统一性,另一方面注重目的导向的问题解决,故违法相对论是可取的。

The judgment on illegality has always been a disputed issue of the Monism and Relativism. The Monism of Illegality has shortcomings in the argument basis and the theoretical foundation; The Relativism of Illegality, which is premised on viewing the law as norm of adjudication, not only abides by the different purposes in the domain of law, but advocates the independent judgment of illegality. Since the Relativism of Illegality abandons the stiff affirmation of the unity of legal order and pays attention to solving purpose-oriented problems, it is a more desirable theory.