论“一般违法性”的法理定位与教义学功能——以部门法判断协调问题为中心

The Jurisprudential Position and Doctrinal Application of“General Illegality”-Focusing on the Coordination of Illegality Judgments in Different Branches of Law

部门法交叉案件的实体法困境之一是如何兼顾法秩序的统一性与部门法违法性判断的相对独立性。破解该困境需要突破单一部门法视角,在法理论层面引入一般违法性概念。法秩序统一的本质并非规范统一或价值统一,而是整体法秩序的判断统一,故而一般违法性不是冗余概念。但一般违法性并非部门法违法性的上位或前置概念,部门法违法性也不能被分解为“一般违法性+个别部门法可回应性”。由于法规范所保护的价值依附于具体的部门法实践,且法律评价与特定的部门法回应方式不可分离,部门法的固有违法性在逻辑上优先于一般违法性。一般违法性是部门法固有违法性之后的二次判断,其功能在于引入本部门法之外的正当化理由。一般违法性概念的教义学意义在于提示裁判者他们做出的违法性判断不仅仅代表部门法立场,更代表整体法秩序的立场,因此必须穷尽法秩序内部的一切正当化理由。

Many scholars believe that a legal order is a unified whole and cannot give conflicting evaluations for the same act.However,in judicial practice,instead of making general judgments on whether an act is legal or illegal,judges always make judgments at the level of a particular branch of law.In order to coordinate the illegality judgments in different branches of law,it’s necessary to explore whether there is a so-called“general illegality”and what is the relationship between general illegality and illegality in a particular branch of law.Currently,there are three views on general illegality:redundancy theory(RT),antecedent theory(AT)and posterior theory(PT).Firstly,RT holds that the concept of general illegality is redundant in both legal theory and legal practice because it cannot be derived from the requirement of the unity of legal order,and it imposes an excessive burden on judges'work.RT is wrong because the unity of judgment,which is the only reasonable interpretation of the unity of legal order,necessarily implies general illegality,and judges can reduce the burden of judgment through general doctrines and conventions of judicial practice.Secondly,according to AT,the judgment of illegality in any branch of law can be decomposed into two parts:“general illegality”and“fitness to be responded to by a particular branch of law”.The core idea of AT can be summarized as the antecedent proposition and the separation proposition.The former means that any judgment of illegality in a particular branch of law is preceded by a judgment of general illegality,whereas the latter means that the general illegality and the fitness to be responded to by particular areas of law are separated from each other,i.e.,“the attitude of the legal order as a whole toward an act”and“whether the act is worthy of legal intervention in a particular way”are two relatively independent questions.The antecedent proposition is false because the understanding of public values depends on the practice in a particular branch of law,thus a judgment of general illegality cannot be made before a judgment of the illegality in a particular branch of law.The separation proposition is also false because there is a necessary conceptual connection between a legal obligation and the way in which a particular branch of law responds to it.Thirdly,PT holds that the judgment of general illegality is a secondary judgment after the judgment of inherent illegality in a particular branch of law,and its point is to introduce justification grounds from other branches of law.The function of the concept of general illegality is to remind judges that the illegality judgment they make represents not only the position in a particular branch of law,but also the position in the legal order as a whole,and therefore all justifications within the legal order must be considered.According to PT,justification grounds can circulate freely among different branches of law,but prohibition grounds remain isolated.The sources of justification grounds are diverse,including the inner morality of a particular branch of law,the political purposes of the state,and the requirements of the rule of law.